Cluid Housing Association v Anthony Whelan and Sylvia Whelan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 20 May 2022 |
| Neutral Citation | [2022] IEHC 302 |
| Court | High Court |
| Docket Number | [2021 No. 73 CA] |
[2022] IEHC 302
[2021 No. 73 CA]
THE HIGH COURT
Injunction – Vacation of property – Tenancy – Plaintiff seeking an injunction ordering the defendants and all other persons in occupation to vacate the property – Whether the defendants had a tenancy agreement with the plaintiff
Facts: The defendants, Mr and Ms Whelan, appealed to the High Court from a decision of the Circuit Court dated 20 May 2021, granting the plaintiff, Cluid Housing Association, an injunction ordering the defendants and all other persons in occupation to vacate the property known as Apartment 205, Burnell Court, Northern Cross, Clarehall, Dublin 17 (the apartment) and a subsequent decision of 11 October 2021 granting the plaintiff their costs of the application. The plaintiff’s application was grounded on a notice of motion dated 9 October 2020 seeking an interlocutory injunction requiring the defendants to vacate the property, and on an equity civil bill dated 9 October 2020, in which the plaintiff sought an order for possession of the property, mesne rates, and damages for trespass. The plaintiff contended that the agreement between it and the defendants in respect of the apartment was not a tenancy but was a license agreement which they could terminate at will. The defendants contended that they had a tenancy agreement with the plaintiff in the apartment on the basis of their exclusive occupation of the property and the rent they had paid consistently since they moved in. Whilst they did not dispute that the intention of the initial occupancy was on an emergency and temporary basis, they argued this did not render their occupation as being under a licence rather than a tenancy. They highlighted the fact that the plaintiff only mentioned a licence for the first time in the proceedings and, up to that time, the plaintiff always referred to and sought to rely on the temporary and emergency nature of the arrangement.
Held by Bolger J that the plaintiff had not satisfied the court that they had a strong case that would succeed at trial in satisfying the Circuit Court that their agreement with the defendants in relation to the apartment was a licence and not a tenancy, to which Part 4 rights could apply: the Residential Tenancies Act 2004. Bolger J found that the case could get better at trial for either side with the benefit of discovery and the evidence of whoever may be called to establish what was said to and agreed by the parties at that time. Bolger J held that this prospect was inconsistent with the satisfaction of the strong case test.
Bolger J’s indicative view on costs was that costs should follow the cause as per s. 169 of the Legal Services Regulatory Act 2015 and/or that it was possible to fairly adjudicate on costs in accordance with O. 99, r. 4 of the Rules of the Superior Courts, i.e. that the defendants were entitled to their costs of the appeal and their costs before the Circuit Court.
Appeal allowed.
JUDGMENT of Ms. Justice Bolger delivered on the 20th day of May, 2022
This is an appeal from a decision of the Circuit Court dated 20 May 2021, granting the plaintiff an injunction ordering the defendants and all other persons in occupation to vacate the property known as Apartment 205, Burnell Court, Northern Cross, Clarehall, Dublin 17 and a subsequent decision of 11 October 2021 granting the plaintiff their costs of the application. The plaintiff's application was grounded on a notice of motion dated 9 October 2020 seeking an interlocutory injunction requiring the defendants to vacate the property, and on an equity civil bill dated 9 October 2020, in which the plaintiff sought an order for possession of the property, mesne rates, and damages for trespass.
The plaintiff is a private company, a registered charity and an approved housing body for the purpose of the Housing (Miscellaneous Provisions) Act, 1992 engaged in the provision of affordable housing. On 6 May 2014, the plaintiff entered into a tenancy agreement with the defendants for Apartment 48, Churchwell Crescent, Belmayne, Malahide Road, Dublin 13 (hereinafter referred to as “the first apartment”). By November 2014, that tenancy had become a tenancy of indefinite duration as a “Part 4 tenancy” within the meaning of the Residential Tenancies Act, 2004.
During their occupation of this property the defendants made complaints to the plaintiff about antisocial behaviour and other matters. On 19 September 2018, the property was badly damaged by a storm and the defendants had to move out to allow the plaintiff to carry out essential repair works. The plaintiff arranged temporary alternative accommodation for the defendants, initially in a hotel and then in self-catering accommodation. The defendants found this accommodation to be unsatisfactory, and the plaintiff arranged to make another one of its apartments at 205 Burnell Court (hereinafter referred to as “the second apartment”) available to the defendants on a temporary basis.
Shortly after the defendants moved to the second apartment they informed the plaintiff that they wished to stay there but the plaintiff, at all times, made it clear that the defendants were in the second apartment on a temporary emergency basis, and would have to return to the first apartment once the repair work was completed.
On 19 December 2018, the plaintiff telephoned the defendants to advise them that the repair work on the first apartment was complete and asked them to move back into that apartment. By letter dated 3 January 2019, the plaintiff advised the defendants again that the repair work on the first apartment was complete and asked them to move back to the first apartment by 14 January. The letter warned them that if they did not move back to the first apartment, that the plaintiff would invoke its right to terminate that tenancy. The defendants did not vacate the second apartment or move back to the first apartment. By letter dated 13 March 2019, the plaintiff advised the defendants again that they were required to vacate the second apartment and move back to the first apartment. The letter stated that the defendants' failure to move back to the first apartment was a breach of their tenancy agreement and that remaining in the second apartment without permission was trespass.
By letter dated 20 May 2019, the plaintiff advised the defendants that they had abandoned their tenancy of the first apartment, and that the plaintiff was going to terminate the tenancy and repossess the property. Around the same time as that letter, the plaintiff decided to carry out further repair work on the first apartment while it was unoccupied. Those works were certified as complete in September 2019, and on 20 September 2019, the plaintiff wrote to the defendants calling on them to vacate the second apartment by 4 October 2019. The defendants did not do so. The plaintiff sent the defendants a further warning letter on 27 January 2020 and, thereafter, the plaintiff's solicitors sent a final warning letter dated 5 February 2020.
The plaintiff's intention at that time was to issue these proceedings in March 2020 but, due to the onset of the covid-19 pandemic, the resulting restrictions and the need to gather up documentation, they did not do so until 9 October 2020.
When the matter came before the Circuit Court on 20 May 2021. the first apartment was still vacant, even though the defendants' tenancy of it had been terminated. The plaintiff advised the court that it would permit the defendants to move back into the first apartment. The defendants declined to do so. The Circuit Court granted an injunction directing the defendants to vacate the second apartment on 20 May 2021. Thereafter the plaintiff assigned the first apartment to another family on Dublin City Council's housing list. The defendants have remained in occupation of the second apartment pending the outcome of this appeal.
The plaintiff contends that the agreement between it and the defendants in respect of the second apartment was not a tenancy but was a license agreement which they could terminate at will. The plaintiff did terminate it on a number of occasions between January and March 2019 and since then, the defendants have been trespassing in the second apartment. The plaintiff disputes there was ever a tenancy in being or that it was, at the time of the commencement of the agreement allowing the defendants to occupy the second apartment, the intention of either party that it would ever be a tenancy agreement. The plaintiff accepts that the defendants have always paid rent but maintains that the rent was, initially, in respect of the first apartment. Thereafter, when that tenancy was terminated, an increased rent was paid by the defendants which the plaintiff's deponent, John Kennedy, says was “presumably” to discharge their arrears which he said had accumulated.
The plaintiff relies on the decision of the Supreme Court in Gatien Motor Company Ltd v. Continental Oil Company of Ireland Ltd [1979] IR 406 in arguing that evidence of exclusive possession is not decisive in establishing a tenancy. They also rely on the decision of the Supreme Court in Irish Shell Ltd v. Costello Ltd (No. 2) [1984] IR 511 where the court held that “ In all cases it is a question of what the parties intended, and it is not permissible to apply an objective test which would impute to the parties an intention which they never had”. They contend that both decisions require the intention of the parties to be established in determining whether a lease came into existence.
The plaintiff accepts that because it seeks a mandatory injunction at the interlocutory stage, it must show it has a strong case that it is likely to succeed at the hearing of the action; Maha Lingam v. HSE [2005]...
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