Fitzpatrick v Residential Tenancies Board
|Mr. Justice Garrett Simons
|12 May 2023
| IEHC 229
|2022 No. 206 MCA
 IEHC 229
2022 No. 206 MCA
THE HIGH COURT
The Appellant failed to attend
Úna Cassidy for the Residential Tenancies Board instructed by Byrne Wallace
Eoin O'Donnell for the Notice Party instructed by Sheehan & Co
JUDGMENT of Mr. Justice Garrett Simons delivered on 12 May 2023
This matter comes before the High Court by way of an appeal on a point of law from a determination of the Tenancy Tribunal of the Residential Tenancies Board. The determination of the Tenancy Tribunal had been to the effect that a notice of termination, which had been served in respect of a statutory tenancy, was valid. The relevant determination order is dated 29 June 2022.
The appeal is taken by one of the two tenants of the property, Regina Fitzpatrick. The other tenant, Aston Dendrick, is not a party to the appeal.
By virtue of Order 84C of the Rules of the Superior Courts, the appropriate respondent to the appeal is the Residential Tenancies Board (formerly known as the Private Residential Tenancies Board). For ease of exposition, I will refer to the appellant as “ the Tenant”; the decision-maker as “ the Tenancy Tribunal”; and the Residential Tenancies Board as “ the RTB” or “ the Board”. The landlord, who is a notice party to the appeal, will be referred to as “ the Landlord”.
The gravamen of the appeal is that the Tenancy Tribunal should not have upheld the validity of the notice of termination in circumstances where the Landlord is said to have indicated to the Tenant that she would not accept rent in the form of a housing assistance payment from the local authority. This indication was given at a time well after the notice of termination had been served and had become effective. The Tenant nonetheless contends that this represents a prohibited form of discrimination under Section 6 of the Equal Status Act 2000.
Insofar as relevant to the issues arising on the statutory appeal, the factual background can be summarised as follows:
27 July 2017
The Landlord and the Tenants entered into a tenancy agreement. The rent payable was €1,470 per month. A security deposit of €1,300 was paid in advance.
1 August 2021
Warning notice served stating that a sum of €4,223 was owing in rent arrears
31 August 2021
Notice of termination served
30 September 2021
Notice period under notice of termination expires
7 December 2021
16 December 2021
Landlord provides letter to Tenant for social welfare purposes
26 January 2022
Adjudicator finds in favour of Landlord
4 February 2022
Tenant files appeal against the Adjudicator's decision
3 March 2022
Landlord sends WhatsApp message stating that she will not be accepting housing assistance payment
8 June 2022
Hearing before the Tenancy Tribunal
29 June 2022
8 August 2022
Tenant files appeal in Central Office of High Court
2 May 2023
Appeal listed for hearing before the High Court
3 May 2023
Appeal heard and judgment reserved
It may be of assistance to the reader in understanding the nature of the dispute before the Tenancy Tribunal in the present case to pause here and to summarise the statutory requirements governing the lawful termination of a Part 4 tenancy for non-payment of rent. These are to be found under the Residential Tenancies Act 2004 as amended, in particular, by the Residential Tenancies and Valuation Act 2020.
A landlord may terminate a tenancy on the grounds, inter alia, that the tenant has failed to comply with their obligation to pay the rent provided for under the tenancy agreement on the date it falls due for payment. The landlord is required, first, to give written notification to both the tenant and the RTB (“ the warning notice” or “ the warning letter”). The warning notice must specify the amount of the rent due and allow the tenant a period of twenty-eight days within which to pay the arrears of rent. The purpose of sending the warning notice to the RTB, as well as to the tenant, is to allow the Board to provide the tenant with such information in writing as will enable them to obtain advice from the Money Advice and Budgeting Service (“ MABS”).
If the tenant fails to pay the arrears of rent within the period allowed, then the landlord may proceed to serve a notice of termination on the tenant. The period of notice to be given by the notice of termination is twenty-eight days. The notice of termination must also be sent to the RTB. The Board will then inform the tenant of their right to refer a dispute as to the validity of the notice of termination for resolution: see Section 39A of the Residential Tenancies Act 2004.
A full transcript of the hearing before the Tenancy Tribunal on 8 June 2022 has been exhibited as part of this statutory appeal. It is apparent from the transcript that the Tenant accepted that she was in arrears; apologised for this; and explained that she had intended to discharge the arrears once the proceeds of an inheritance, which she had come into, had been paid over to her. The Tenant did not advance any specific argument to the effect that the notice of termination was invalid.
The Tenancy Tribunal nevertheless carried out its own assessment of whether the statutory requirements for the lawful termination of a Part 4 tenancy on the grounds of non-payment of rent had been complied with. The Tenancy Tribunal concluded that the notice of termination was valid. The reasons for this finding are set out as follows in the Tenancy Tribunal's determination:
“7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence presented to it by the Parties, the Tribunal's findings, and reasons thereof, are set out hereunder.
The Notice of Termination dated the 31 August 2021 served by the Respondent Landlord on the Appellant Tenants in respect of the tenancy at 66 Roscaoin, Roscam, Galway is valid.
Pursuant to section 16(a)(i) of the Residential Tenancies Act, 2004, as amended (‘the 2004 Act’) a tenant must pay to the landlord the rent provided for under the tenancy concerned on the date it falls due for payment.
As the tenancy is longer than 6 months in duration it is therefore a Part 4 tenancy under the Act.
Section 67(2) (aa) of the Act provides that a tenancy may be terminated by 28 days' written notice if a tenant is in arrears of rent provided that before issuing the Notice of Termination the Landlord has given a notification to the Tenant and the RTB of the rent arrears and the arrears have not been paid within 28 days of service of the notification. It was agreed that a warning letter was sent to the Tenants on the 1 August, 2021 which stated that €4223.00 rent arrears was owing. This warning letter was e-mailed to the RTB and the RTB confirmed that they received the warning letter on the 1 August, 2021. It was also agreed between the parties that a Notice of Termination was served on the 31 August 2021 with a termination date on its face of the 30 September 2021. By letter dated the 6 September 2021 the RTB confirmed that they received a copy of the Notice of Termination on the 31 August 2021. Both parties agreed that €14,311.62 rent arrears were owed at the date of the hearing as per the Statement of Rent arrears at page 11, of Casefile 2. The Notice of Termination complied with Section 62 and Section 66 of the Act and was signed by the Landlord. The service of the Warning letter and Notice of Termination complied with Section 6 (1) of the Act, and the Tenant, Ms. Fitzpatrick, accepts that she received these documents.
The Notice of Termination served on the 31 August 2021 is valid and the Tenants were overholding from the 30 September 2021.
No rent has been paid by the Tenants for a significant period of time and in the circumstances where the Landlord has indicated that she relies on the rental payments to discharge her mortgage and she has found the whole situation very stressful, the Tribunal proposes to award the Landlord €500.00 for the stress and inconvenience she has suffered due to the failure of the Tenants to pay any rent since October 2021.”
The Tenancy Tribunal went on then to consider the separate issue of whether the Tenant had been in breach of other obligations under the tenancy agreement. These findings are not directly relevant to the appeal to the High Court.
The case which the Tenant seeks to advance in the statutory appeal to the High Court is entirely different to that made at the hearing before the Tenancy Tribunal. It is now alleged that the Tenant has been discriminated against and that the tenancy has been terminated because the Landlord refused to accept housing assistance payment (“ HAP”). The Tenant relies on what she says are copies of an exchange of messages on the WhatsApp platform. In particular, reference is made to the following exchange wherein the Landlord is recorded as having declined to accept housing assistance payment:
“Hi Sinead, social welfare have asked for a letter or e-mail from you saying you would accept HAP as a payment for housing from me in the future as there exceptional need payment is only a short term payment and they will pay it for a few months only. When they receive this they will release money including back payment. Sorry for delay
Regina, so that we are very clear, I will NOT be accepting HAP. I await receipt of the Determination Order from the RTB under which you will be required to vacate my house and pay all monies owing to me. I intend to proceed to enforce the Determination Order through the courts if you fail to adhere to the provisions, and the timelines, set...
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