Hennessy v PRTB

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 05 April 2016
• Neutral Citation: [2016] IEHC 174
• Docket Number: [2015 No. 229 MCA]
• Court: High Court
• Date: 05 April 2016

IN THE MATTER OF SECTION 123 (3) OF THE RESIDENTIAL TENANCIES ACT, 2004

BETWEEN

LOUIS HENNESSY

APPLICANT

AND

PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENT

AND

JOHN MCSTAY, RECEIVER OVER CERTAIN ASSETS OF DURKAN HOMES (IN RECEIVERSHIP)

NOTICE PARTY

[2016] IEHC 174

Baker J.

[2015 No. 229 MCA]

THE HIGH COURT

Landlord & Tenant – S. 123 (3) of the Residential Tenancies Act, 2004 – Part 4 Tenancy – Notice of termination – Reasons for termination

Facts: The applicant had filed an appeal against the determination of Tenancy Tribunal that the notice of termination served by the landlord was valid. The applicant contended that the said notice of termination was defective as it failed to comply with the provisions of s. 34 (a) (ii) of the Residential Tenancies Act, 2004 and s. 62 of the said Act.

Ms. Justice Baker allowed the appeal filed by the applicant. The Court held that a landlord could terminate Part 4 tenancy by giving a notice of termination as specified under s. 34 of the said Act of 2004 by setting out the reasons for such a termination. The Court observed that compliance with the requirements of s. 62 of the said Act of 2004 was obligatory in that a notice of termination of tenancy must identify the reason for which the tenancy was sought to be terminated; however, the exact form was not required. The Court opined that since the Act of 2004 provided for a civil and criminal liability for breach of requirements pertaining to the notice of termination, it was mandatory that a notice of termination of tenancy should state with specificity that the landlord intended to sell the concerned premises within three months of the termination of the tenancy. The Court held that in the present case, the notice merely identified an intention to sell by the landlord, without specifying that there was intent to enter into a binding contract by the landlord within prescribed time-limit, and thus, the said notice was invalid. The Court opined that the non-compliance of statutory requirements would defeat the purpose of the Act of 2004, which was to provide security of tenure to the tenants.

JUDGMENT of Ms. Justice Baker delivered on the 5th day of April, 2016.

1 The applicant is a tenant of residential premises situated at Capard, Bray Road, Cabinteely, Co. Dublin ('the Premises') which he has occupied as tenant since 2006 with his wife and children. He brings this application by way of appeal from the determination of the Tenancy Tribunal ('the Tribunal') made on the 19th June, 2015, and issued on 29th June, 2015, by which the Tribunal determined that a notice of termination served by his landlord was valid.

2 The respondent is the Private Residential Tenancies Board ('the PRTB'), the body established by the Residential Tenancies Act, 2004 ('the Act of 2004') to determine disputes between landlords and tenants of residential premises.

3 The notice party was, on or around the 10th November, 2011, appointed receiver over certain assets of Durkan Homes, including the Premises, and served a notice of termination on the 11th June, 2014, specifying the date of the 3rd October, 2014, as the date on which the tenancy was said thereby to be determined.

4 This judgment is given in the appeal by the applicant pursuant to s.123 (3) of the Act of 2004, and is concerned with the net legal question of what must be contained in a valid notice of termination served under the provisions of the legislation, when a tenancy is terminated because a landlord intends to sell the premises the subject matter of the tenancy.

Background

5 It was accepted that the applicant has resided in the Premises with his family as tenant since 2006, and that he has the benefit of a so-called Part 4 tenancy. On the 1st June, 2012, the receiver served a notice of termination on the stated ground that he intended to sell the Premises. The dispute as to the validity of the notice of termination was submitted for dispute resolution before an adjudicator of the respondent, who on the 4th February, 2013, determined that the notice of termination was invalid. The frailty noted in that adjudication is also found in the notice of termination the subject matter of this appeal, namely that the notice of termination did not specifically say that the landlord intended to sell within three months of the termination of the tenancy.

6 The applicant entered into a new letting of the Premises on the 3rd April, 2013, and on the 11th June, 2014, the receiver served a notice of termination in respect of that tenancy, in identical or broadly identical terms to that the subject matter of the adjudication made on the 4th February, 2013.

7 The tenant submitted the dispute as to the validity of the second notice to the respondent, and on the 2nd December, 2014, an adjudicator determined that the notice was valid. The applicant lodged an appeal to that finding which was heard by the Tribunal on the 27th May, 2015, and it is from its determination of the 29th June, 2015, that this appeal is brought.

Grounds of appeal

8 The applicant claims that the Tribunal erred in law in its analysis of the provisions of ss.34 and 62 of the Act of 2004, and in coming to a determination that the termination notice dated the 11th June, 2014, was effective to terminate his tenancy in the Premises. In particular it is asserted that the notice served on the 11th June, 2014, was not valid and did not comply with the requirements of s.34 (a) (ii) of the Act and para. 3 of the Table to that section. There is also a plea that the notice is not valid in that it does not conform to the requirements of s.62 of the Act, and in particular ss.62 (1) (d) and 62 (1) (e).

9 Section 123(3) of the Act of 2004 provides for an appeal to the High Court on a point of law. It has been established in a number of cases, including in Tully v. Private Residential Tenancies Board and Anor [2014] IEHC 554 and my judgment in Doyle v. Private Residential Tenancies Board [2015] IEHC 724, that the High Court will show a degree of deference to the PRTB as an expert administrative tribunal which performs its functions with a high degree of expertise. However, the point raised by the applicant is a legal one in the pure sense, in that it is grounded on an argument that the statutory requirements as to the contents of a notice of termination were not met. I consider that the appeal raises an issue of law which may properly be determined by the High Court pursuant to s.123 (3) of the Act of 2004, and the question raised is a question of pure law involving a matter of statutory interpretation. I turn now to examine the requirements of the legislation.

The Act of 2004: the Part 4 tenancy

10 The Act of 2004 is set out in a number of Parts, each containing chapters of varying lengths. Part 4 sets out a scheme by which certain tenants of residential premises enjoy the benefit of a degree of statutory security of tenure. A tenant who has been in occupation of a residential dwelling for a continuous period of 6 months enjoys the benefit of protection as outlined in Chapter 2 of that Part, primarily the right to continue in possession as tenant for the period of four years from the commencement of the tenancy, or until the expiration of a period of notice, whichever is the later. A tenancy continued by virtue of the provisions of s.28, after the initial period of six months, is described in s. 29 as a 'Part 4 tenancy', and a tenant holding under such a tenancy may remain in possession as tenant unless the tenancy is lawfully determined in accordance with the requirements of Chapter 3.

11 Chapter 3 of Part 4 identifies the extent of the protection offered to a person holding under a Part 4 tenancy, and provides that such tenancy may not be terminated by the landlord save in accordance with s.34, and for the reasons therein identified.

12 Essential to the scheme of the legislation is that a landlord may terminate a Part 4 tenancy for certain identified reasons, but may do so only by notice by which is cited one of these reasons said to justify termination. It is convenient to set out here the relevant parts of s.34:

'34.—A Part 4 tenancy may be terminated by the landlord—

(a) on one or more of the grounds specified in the Table to this section if—

(i) a notice of termination giving the required period of notice is served by the landlord in respect of the tenancy, and

(ii) that notice of termination cites as the reason for the termination the ground or grounds concerned and, in the case of paragraph 4, 5 or 6 of that Table, contains or is accompanied by the statement referred to in that paragraph.

13 The section contains a Table setting out the grounds on which the tenancy may be terminated within the statutory period of protection, the relevant part 3 of which reads as follows:

'3. The landlord intends, within 3 months after the termination of the tenancy under this section, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his or her interest in the dwelling or the property containing the dwelling.'

14 It will be apparent from the provisions of s.34, that a Part 4 tenancy cannot be terminated by a landlord save on notice given expressly for one of the reasons identified in s.34, and the relevant reason must be cited in the notice of termination. Further, a tenant is entitled to continue in occupation for the statutory period unless the landlord can show that one of the six grounds identified in the Table to s. 34 exists.

15 I turn now to consider the separate requirements of s.62.

Part 5 of the Act of 2004: the form of the notice of termination

16 Part 5 of the Act of 2004 sets out the formal and procedural requirements for termination of a tenancy. That Part makes provision for termination in respect of all residential tenancies, and not merely of those to which Part 4...