Iyaba v Residential Tenancies Board

JudgeMr. Justice Garrett Simons
Judgment Date11 August 2023
Neutral Citation[2023] IEHC 491
CourtHigh Court
Docket Number2023 No. 206 MCA

In the Matter of the Residential Tenancies Act 2004

Carine Kapihga Iyaba
Residential Tenancies Board
Dublin Simon Community
Notice Party

[2023] IEHC 491

2023 No. 206 MCA



Paul O'Shea for the appellant instructed by Cyril & Company

Úna Cassidy for the respondent instructed by Byrne Wallace LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 August 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 on the grounds of anti-social behaviour, was valid. The relevant determination order is dated 1 February 2023.


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, the Dublin Simon Community, will be referred to as “ the Landlord”. The Landlord is a notice party to these proceedings.


The originating notice of motion names a number of other notice parties as follows: the Minister for the Environment, Heritage and Local Government; Ireland; and the Attorney General. It seems that these parties were joined as legitimus contradictor to the plea that the statutory procedures available to challenge the legality of a notice of termination do not provide an effective remedy. If and insofar as the Tenant wishes to challenge the compatibility of the relevant provisions of the Residential Tenancies Act 2004 with either the Constitution of Ireland or the European Convention on Human Rights, it will be necessary for her to institute separate proceedings. Such a challenge cannot be mounted within the context of a statutory appeal on a point of law. These notice parties were released from the proceedings, by consent, on 10 July 2023.


The appeal comes before the High Court pursuant to Section 123 of the Residential Tenancies Act 2004. The appeal is by way of an appeal on a point of law.


The High Court's jurisdiction on an appeal on a point of law has been explained as follows by the Supreme Court in Fitzgibbon v. Law Society [2014] IESC 48, [2015] 1 I.R. 516 (at paragraphs 127 and 128 of the reported judgment):

“The applicable principles were helpfully summarised by McKechnie J. in Deely v. Information Commissioner [2001] 3 I.R. 439 at p. 452, which concerned an appeal under s. 42 of the Freedom of Information Act 1997, as follows:-

‘There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-

  • (a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;

  • (b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;

  • (c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;

  • (d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision …’

This passage was later cited in the Supreme Court judgments of both Fennelly and Kearns JJ. in Sheedy v. Information Commissioner [2005] IESC 35, [2005] 2 I.R. 272.

In one sense it may be said that two types of points of law can legitimately be raised in an appeal which is limited to points of law alone. First, there may be an error of law in the determination of the first instance body. Second, it may be the case that the way in which the first instance body has reached its conclusions on the facts involves an error which itself amounts to an error in law. There may have been no evidence to support a finding or inferences may have been drawn on the facts which no reasonable decisionmaker could have drawn. It follows that a higher degree of deference, so far as the facts are concerned, is paid by the appellate body to the decision of the first instance body in an appeal on a point of law only, as opposed to an appeal against error. In the latter case the court is entitled to form its own view on the proper inferences to be drawn (although not on primary facts).”


The principles in Fitzgibbon have been applied in the specific context of an appeal under Section 123 of the Residential Tenancies Act 2004 in a number of High Court judgments. In Marwaha v. Residential Tenancies Board [2016] IEHC 308, the High Court (Barrett J.) summarised the principles as follows (at paragraph 13):

“What principles can be drawn from the foregoing as to the court's role in the within appeal? Four key principles can perhaps be drawn from the above-considered case-law:

  • (1) the court is being asked to consider whether the Tenancy Tribunal erred as a matter of law (a) in its determination, and/or (b) its process of determination;

  • (2) the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them;

  • (3) as to mixed questions of fact and law, the court (a) may reverse the Tenancy Tribunal on its interpretation of documents; (b) can set aside the Tenancy Tribunal determination on grounds of misdirection in law or mistake in reasoning, if the conclusions reached by the Tenancy Tribunal on the primary facts before it could not reasonably be drawn; (c) must set aside the Tenancy Tribunal determination, if its conclusions show that it was wrong in some view of the law adopted by it.

  • (4) even if there is no mistake in law or misinterpretation of documents on the part of the Tenancy Tribunal, the court can nonetheless set aside the Tribunal's determination where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn.”


Finally, it should be emphasised that the point of law must arise from the determination under appeal. The High Court is not hearing the matter de novo but rather is considering the legality of the decision of the Tenancy Tribunal. The High Court should normally decline to decide a point of law which had neither been argued before, nor decided by, the Tenancy Tribunal. See, by analogy, Governors & Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin v. Information Commissioner [2011] IESC 26, [2013] 1 I.R. 1 (at paragraph 90 of the reported judgment). See also the judgment of the High Court (Noonan J.) in Hyland v. Residential Tenancies Board [2017] IEHC 557 (at paragraphs 25 to 27).


This limitation on the High Court's appellate jurisdiction assumes an especial importance in the present case in circumstances where a number of the points of law sought to be advanced by the appellant are not ones which were pursued at first instance before the Tenancy Tribunal.


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 tenancy for anti-social behaviour under the Residential Tenancies Act 2004 (“ the RTA 2004”).


Section 16(h) of the RTA 2004 imposes an obligation upon a tenant of a dwelling not to behave within the dwelling, or in the vicinity of it, in a way that is anti-social. The subsection imposes a further obligation upon a tenant not to “ allow” other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in a way that is anti-social.


The term “ behave in a way that is anti-social” is defined, under Section 17(1) of the RTA 2004, as follows:

“( a) engage in behaviour that constitutes the commission of an offence, being an offence the commission of which is reasonably likely to affect directly the well-being or welfare of others,

( b) engage in behaviour that causes or could cause fear, danger, injury, damage or loss to any person living, working or otherwise lawfully in the dwelling concerned or its vicinity and, without prejudice to the generality of the foregoing, includes violence, intimidation, coercion, harassment or obstruction of, or threats to, any such person, or

( c) engage, persistently, in behaviour that prevents or interferes with the peaceful occupation—

(i) by any other person residing in the dwelling concerned, of that dwelling,

(ii) by any person residing in any other dwelling contained in the property containing the dwelling concerned, of that other dwelling, or

(iii) by any person residing in a dwelling (‘neighbourhood dwelling’) in the vicinity of the dwelling or the property containing the dwelling concerned, of that neighbourhood dwelling.”


If the behaviour of a tenant falls within paragraph (a) or (b) of the above definition, then this is treated as an “ excepted basis for termination”. The tenancy can be terminated on seven days' notice and without affording the tenant an opportunity to remedy the breach of their obligations. If, conversely, the behaviour falls within paragraph (c) above, then the tenant must be served with a written notice by the landlord identifying the failure to comply with their obligation in respect of anti-social behaviour, and stating that the landlord is entitled to terminate the tenancy if the failure is not remedied within a reasonable time specified in that...

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