Hamilton v Private Residential Tenancies Board
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 27 July 2022 |
| Neutral Citation | [2022] IEHC 517 |
| Court | High Court |
| Docket Number | RECORD NO. 2022/89MCA |
and
[2022] IEHC 517
RECORD NO. 2022/89MCA
THE HIGH COURT
Notice of termination – Damages – Breach of obligation – Respondent seeking an order directing the appellant to pay rent arrears to the notice party – Whether the appellant ought to be directed to maintain the sums she will receive from her mother’s estate pending the determination of the appeal
Facts: The appellant, Ms Hamilton (the tenant), appealed to the High Court by way of originating notice of motion of 29 March 2022. The appeal was limited to a challenge to a Tenancy Tribunal’s findings in respect of the validity of a notice of termination and the award of damages made in her favour arising from a breach of obligation by the notice party, Mr McKeown (the landlord). By a motion of 27 May 2022, the respondent, the Residential Tenancies Board, sought an order directing the tenant to pay €45,000 to the landlord or other appropriate party being rent arrears owing to the landlord up to 4 May 2022 pursuant to s. 86 of the Residential Tenancies Act 2004 as amended and/or s. 28 of the Supreme Court of Judicature Act (Ireland) 1877 and/or the inherent jurisdiction of the Court. However, at the hearing it was accepted by counsel for the respondent that s. 86 only sets the parameters of the order and does not provide the Court with jurisdiction for the order sought. At paragraph 2 an order was sought directing the tenant to continue to pay the monthly rent of €3,250 to the landlord, or other appropriate party pending the determination of the appeal or up to the date of vacant possession pursuant to s. 86 and/or s. 28 and/or the inherent jurisdiction of the Court. By a second motion, the landlord sought various reliefs, including relief directing that the tenant be directed to maintain the sums she will receive from her mother’s estate pending the determination of the appeal and/or not dissipating the amount she will receive as part of her inheritance pending the determination of the appeal.
Held by Hyland J that there was no possibility of holding the line in respect of a matter the subject of a determination under appeal where the legislature has already determined how that line should be held; as described by Simons J in Carroll v Residential Tenancies Board [2021] IEHC 561, there is in effect a statutory stay pursuant to s. 123(2) of the 2004 Act. In the circumstances, Hyland J could not accede to the relief at paragraph 1 of the respondent’s motion. In relation to the relief at paragraph 2, Hyland J held that it was otiose; the tenant already had an obligation to continue to pay the monthly rent pursuant to the tenancy agreement and it was made clear by s. 86 that this obligation was not in any way suspended or set aside by a dispute in relation to that tenancy agreement. Hyland J held that she could not make an order pursuant to s. 86 in that regard since s. 86 simply confirms in legislative form that there is no change to the obligations of the tenancy agreement. For similar reasons Hyland J declined to exercise her jurisdiction under s. 28 or her inherent jurisdiction.
Hyland J held that the relevant circumstances gave cause for concern in respect of the tenant’s behaviour: she had failed to discharge her rent for 15 months; she had not made any payment, even a lesser amount than that owed; she had not paid any arrears; she remained in the property and had given no indication as to when she would vacate the property; no instructions were provided by the tenant to her legal team in respect of the motions; and she had refused to provide an undertaking to preserve sums when requested to do so. Hyland J was satisfied that there was a real concern as to whether the tenant would use her inheritance to pay the outstanding rent or whether she might seek to avoid doing so. Hyland J made the following order: the tenant, or anyone acting on her behalf, are restrained from dissipating any amount received qua beneficiary in the estate of Ms Hamilton below the amount of €48,750 pending the determination of the appeal and/or until such time as the rent arrears sum owed to the landlord is fully discharged and the tenant gives up possession of 8 Shelbourne Road, Ballsbridge, Dublin 4.
Respondent’s motion refused. Notice party’s motion granted.
EX TEMPORE JUDGMENT of Ms. Justice Niamh Hyland delivered on 27 July 2022
There are two related motions in this matter – the first a motion brought by the respondent to these proceedings, the Residential Tenancies Board, and the second a motion brought by the notice party, Mr. McKeown (hereafter the “landlord”), who rents a property at 8 Shelbourne Rd., Dublin 4 to the appellant in these proceedings (hereafter the “tenant”).
In short, the facts are that the landlord entered into a 12-month fixed term tenancy with the tenant on 5 October 2020 in respect of the premises at 8 Shelbourne Rd. Rent was agreed at the rate of €3,250 per month. The tenant failed to pay rent from April 2021 in accordance with the tenancy agreement and a Notice of Termination was served requiring the tenant to vacate the dwelling within 28 days on 18 May 2021.
The landlord referred the dispute to the respondent and solicitors came on record for the tenant. On 11 June 2021 Hatstone solicitors wrote confirming that the tenant was in rent arrears but that the tenant would be challenging the Notice of Termination served. They also raised an alleged lack of compliance with the Housing (Standards for Rented Houses) Regulations 2019 ( S.I. 137/2019).
An adjudication hearing took place on Thursday, 30 July 2021. The tenant was represented by Hatstone solicitors. The tenant acknowledged she had not paid rent since 5 March 2021 and the adjudicator determined the tenant owed the sum of €12,528.10 in rent arrears to the notice party, the landlord. The tenant was awarded €1,500 in respect of the claim for breach of landlord obligations. The adjudicator upheld the Notice of Termination and determined that the tenant was overholding.
An appeal was lodged by the tenant and a Tenancy Tribunal took place on 14 December 2021. As of the date of the hearing the rent arrears stood at €27,068.50. In its determination, the Tribunal upheld the Notice of Termination. The landlord was held to have breached his obligations and to be liable in the sum of €1,709 to the tenant. The tenant was directed to pay the sum of €25,359.50 to the landlord, being rent arrears less the amount owing by the landlord, by way of monthly instalments of €3,250 and a final instalment. In the event of default of repayment, the full sum was to become due. The tenant was directed to continue to pay rent at the rate of €3,250 per month until the dwelling was vacated. The determination was made pursuant to s.108(1) of the Residential Tenancies Act 2004 as amended which provides that the Tribunal shall, on completion of its hearing, make its determination in relation to the dispute and notify the Residential Tenancies Board of that determination. The determination was in relation to the entirety of the dispute between the landlord and tenant.
The tenant appealed to this Court by way of originating Notice of Motion of 29 March 2022, grounded on an affidavit of the tenant of the same date. The appeal is limited to a challenge to the Tribunal's findings in respect of the validity of the Notice of Termination and the award of damages made in her favour arising from a breach of obligation by the landlord.
It is important to understand that there is no appeal of the outstanding amount of arrears and there is no dispute that the tenant has failed to pay rent. Indeed, at paragraph 9 of her affidavit in the substantive proceedings, I am told that the tenant acknowledges that she has not discharged the rent as accrued since March 2021. However, in relation to these motions, although the tenant is represented by solicitor and counsel, they received no instructions in respect of the motions and no submissions were made on her behalf.
Because the appeal is not in relation to the determination of the Tribunal requiring the tenant to discharge the rent, or the finding that she is obliged to continue to pay rent pending the determination of the appeal, the findings of the Tribunal in that respect will not be disturbed irrespective of the outcome of the appeal. Therefore, at the conclusion of the appeal, the tenant will owe the existing sum in respect of unpaid rent and whatever additional amount she has accrued in rent if she remains in occupation and continues to avoid discharging her rent.
In her affidavit of 27 May 2022, Ms. O'Halloran of the respondent avers the tenant owes €45,500 as of 5 May 2022. In the affidavit sworn by the landlord on 22 June 2022 in support of his motion, he avers the sum as of the date of swearing is €48,750.
The landlord seeks various reliefs, including relief directing that the tenant be directed to maintain the sums she will receive from her mother's estate pending the determination of the appeal and/or not dissipating the amount she will receive as part of her inheritance pending the determination of the appeal. In the motion brought by the landlord, it is contended that the tenant is the beneficiary of part of her mother's estate. It is identified that on the basis of the information that he and his solicitor have been able to glean, it appears that the tenant may be entitled to 1/6 of her mother's estate. Solicitor and counsel appeared for the tenant but indicated they had no instructions in these motions and therefore were unable to make any argument or participate in them. However, they did provide some information about...
To continue reading
Request your trial