Kelly v The Residential Tenancies Board

JurisdictionIreland
JudgeO'Regan J.
Judgment Date06 November 2018
Neutral Citation[2018] IEHC 613
CourtHigh Court
Docket Number[RECORD NO. 2017/208/MCA]
Date06 November 2018
BETWEEN
PATRICK KELLY
APPELLANT
AND
THE RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
EUGENE O' REILLY
NOTICE PARTY

[2018] IEHC 613

[RECORD NO. 2017/208/MCA]

THE HIGH COURT

Landlord & tenant – Residential tenancies – Termination – Appeal against decision that notice valid – Part 5 Residential Tenancies Act 2004

Facts: The appellant had been served with a notice of termination in relation to a residential property of which the notice party was the landlord. The appellant considered the notice to be flawed but the respondent had held that the notice was valid. He now appealed from that decision.

Held by the Court, that the appeal would be dismissed. The respondent did not have the power to step outside the scope of Part 5 of the Residential Tenancies Act 2004 in considering whether a notice was invalid. On that basis the decision at first instance was correct. Hyland v. Residential Tenancies Board [2017] IEHC 557 applied.

JUDGMENT of Ms. Justice O'Regan delivered on the 6th day of November 2018
Issues
Introduction
1

This is an application by Mr. Kelly, the appellant, pursuant to the provisions of s. 123 of the Residential Tenancies Act, 2004 being an appeal from the respondent's decision of the 23rd June 2017 wherein the respondent held that the notice of termination served by the notice party, the landlord, of the 21st of December 2016 was valid.

Proceedings
2

The claim comes before the court by way of a notice of motion of the appellant of the 6th July 2017 in which he seeks an order pursuant to s. 123 declaring the notice of termination in question to be invalid. Within the notice of motion the appellant sets out the grounds relied on. During his oral submissions, the appellant asserted that eleven issues arose between the parties. However, those eleven issues were raised by him in written submissions as opposed to the notice of motion itself, which is the relevant document before the Court.

3

In Para. 1 of the grounds of appeal, a judgment of Barrett J in Marwaha v. Residential Tenancies Board [2016] IEHC 308 - Para 13 is cited to the effect that the High Court must set aside a determination if its conclusion shows that it was wrong in some view of the law adopted by it and that principle is not contested by either the respondent or the notice party.

4

The appellant then goes on to say that the conclusion within the determination is such that the tenancy tribunal adopted a wrong view of the law; (a) he refers to the wrong view being adopted as to a ‘further Part 4 tenancy’ and what the respondent understood that to be; (b) he complains as to the application of the provisions s. 62(1) (e) of the 2004 Act; (c) the respondent says that paras. 34 and 35 of Hennessy v. Private Residential Tenancies Board [2016] IEHC 174, a judgment of Ms. Justice Baker, were not applied. Finally, he says s. 42 of the 2004 Act was reviewed wrongly.

5

In Para. 2 he says that the tribunal failed to have regard to s. 46(1) of the 2004 Act (which provides that the terms of a further Part 4 tenancy are as per the previous tenancy) and he complains that the tribunal failed to have regard to s. 43 (which provides for effective rolling four year tenancies).

6

In Para. 3, he states that because there was an incorrect statement of the law comprised within the notice of termination, the notice of termination is not valid.

7

There are a number of affidavits sworn by the appellant; two of which are more substantial than the other two. One is the grounding affidavit of the 12th July 2017 and the other is in response to the affidavit filed in support of the statement of opposition by the respondent.

8

The commencement of the tenancy was on the 20th October 2012 and it relates to Apartment 4, Eden Way, Main Street, Rathcoole, Co. Dublin. There were apparently three successive one – year letting agreements. On the 21st December 2016, the notice party served a notice of termination which expired on the 19th of April 2017.

9

On the 31st December 2016, the appellant made an application for dispute resolution to the respondent complaining that the termination notice was not served and that no reason was effectively given. There was an adjudication hearing on the 6th March 2017 where it was held that the notice was valid.

10

Thereafter, the appellant appealed this matter to the respondent and at that stage the appeal was in relation to the two issues aforesaid however in the appeal to this Court the issue of service is not raised.

11

The hearing took place before the respondent on the 23rd May 2017 and an order issued on the 23rd June 2017, again finding that the termination notice was correct.

Preliminary Issue
12

A preliminary issue has been raised by the appellant in relation to the fact that he claims that the statement of opposition and the grounding affidavit were not served until after the return date being the 9th October 2017, notwithstanding that the Rules of Court provide that the statement of opposition should be served before this stage. He claims he is entitled to the benefit of the rules and on that basis, he suggests that the application he brings before the court should be deemed undefended.

13

The respondent says on the 29th September 2017 there was effective postal service of the documents on the appellant and also asserts that an order or direction was made by Noonan J. on the 9th October 2017 pursuant to the provisions of O. 84 c (7) of the Rules of the Superior Courts entitling the respondent to serve the appellant on that date personally. The appellant acknowledges personal service on the 9th October, 2017 but denies that Noonan J. made such a direction on the morning of the return date.

14

None of the foregoing is on affidavit before the Court and there is clear contention between the parties.

15

I intend to resolve the matter by having regard to O. 122, r. 7 of the Rules of the Court which provides that the court has power to enlarge time fixed by the rules where it considers this necessary. I note that the appellant in fact responded to the affidavit in support of the statement of opposition and in those circumstances I am satisfied that if in fact it was not the case, which I cannot determine, that Noonan J. did not direct service on the 9th October, I now for the avoidance of doubt am enlarging time for the service of the statement of opposition and the affidavit under O. 122 r. 7 of the Rules of the Superior Courts to 5 p.m. on the 9th October 2017, for the purpose of resolving the preliminary issue.

Substantial Issues
16

In dealing with the issues as to the application of the Residential Tenancies Act it is noted as a preliminary that it is a long Act and at times somewhat difficult to follow. However, for the purposes of the case before the Court, there are a number of sections which are relevant, namely:-

(a) Section 28 (1) provides that: - ‘Where a person has, under a tenancy, been in occupation of a dwelling for a continuous period of 6 months then ….’

inter alia the period of entitlement to occupation will last for four years. This additional period involved in the four year term will be part and parcel of the tenancy which gave rise to the full four year period and this is clear by looking at s. 30 and 31 of the Act. S. 28(2) (a) provides that the period of four years is from the commencement of the tenancy or the relevant date being the commencement of the Act and in these circumstances as the Act commenced well in advance of the date of occupation, the 20th October 2012 is the commencement date. The occupation referred to can be under a series of two or more tenancies which was the case in the instant matter (see s. 31).

(b) Section 30 provides that this tenancy as such is a continuation of the prior agreed tenancy between the parties. The wording is significant in my view in that it refers to occupation and it refers to a continuation (which is also relevant).

(c) Such a tenancy can then be terminated under Chapter 3 of Part 4 of the Act - s. 34 provides for the manner in which termination might occur...

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