Reginald Carroll v Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 03 September 2021
• Neutral Citation: [2021] IEHC 561
• Docket Number: 2021 No. 223 MCA
• Court: High Court

In the Matter of Section 123 of the Residential Tenancies Act 2004

And in the Matter of an Appeal

Between

Reginald Carroll

Appellant

and

Residential Tenancies Board

And by Order of the Court

Terry Rowland

Margaret Rowland

Respondents

[2021] IEHC 561

2021 No. 223 MCA

THE HIGH COURT

Interlocutory injunction – Tenancy – Occupation – Appellant seeking an interlocutory injunction – Whether the appellant should be allowed to remain in occupation of the dwelling pending the final determination of the statutory appeal

Facts: A Part 4 tenancy was entered into between the appellant, Mr Carroll (the Tenant), and the second and third respondents, Mr and Ms Rowland (the Landlords), in March 2020. The Landlords purported to serve a notice of termination on the Tenant on the grounds, inter alia, of anti-social behaviour on the part of the Tenant. The Tenant sought to challenge the validity of the notice of termination. That challenge was rejected by the Tenancy Tribunal in a determination of June 2021. That determination was duly embodied in a formal “determination order” by the director of the first respondent, the Residential Tenancies Board, issued to the parties on 4 August 2021. The Tenant then made an appeal to the High Court. Simons J made an order granting an interim injunction; and granted the Tenant liberty to serve short notice of motion for an interlocutory injunction in support of the statutory appeal pending before the High Court under the Residential Tenancies Act 2004. The appeal was against the finding to the effect that the Landlords were entitled to recover possession of the dwelling. The Landlords were given liberty to issue a formal notice of motion seeking to set aside the interim order.

Held by Simons J that the principal issue to be addressed in this judgment was whether the Tenant under the residential tenancy should be allowed to remain in occupation of the dwelling pending the final determination of the statutory appeal. Simons J held that, even allowing that the High Court may have an exceptional jurisdiction to exclude a tenant from a protected dwelling pending the hearing and determination of an appeal, this was not a case which justified such an order. Simons J held that the Landlords were not entitled to retake possession of the protected dwelling pending the hearing and determination of the statutory appeal. Simons J held that the Tenant’s application for an interlocutory injunction would be granted, and the rival application to set aside the interim order would be refused.

Simons J held that the formal order would provide that the Landlords were not to interfere with the Tenant’s possession of the property the subject matter of the proceedings (being Mullaghderg Mountain Pasture Burtonport in the County of Donegal F94 K3H7) nor seek to re-enter the said property, pending the determination of the statutory appeal or further order of the court. Simons J held that the Tenant would be required to give, on affidavit, an undertaking as to damages in respect of any physical harm to the dwelling and its furniture and fittings caused between this judgment and the determination of the appeal. Simons J held that the undertaking did not extend to any financial loss said to be caused to the Landlords merely by dint of their not having possession of the dwelling.

Interlocutory injunction granted.

Appearances

Mr. Carroll represented himself

Úna Cassidy for the first respondent instructed by Eversheds

Mark Finan for the second and third respondents instructed by O'Donnell Sweeney (Donegal)

JUDGMENT of Mr. Justice Garrett Simons delivered on 3 September 2021

INTRODUCTION

1 This judgment is delivered in respect of an application for an interlocutory injunction in support of a statutory appeal pending before the High Court under the Residential Tenancies Act 2004. The principal issue to be addressed in this judgment is whether the tenant under a residential tenancy should be allowed to remain in occupation of the dwelling pending the final determination of the statutory appeal. The appeal is against a finding to the effect that the landlords are entitled to recover possession of the dwelling.

STATUTORY REGIME

2 To assist the reader in understanding the detailed discussion which follows, it is necessary to rehearse, at this early stage of the judgment, the statutory provisions governing the termination of residential tenancies.

3 Part 4 of the Residential Tenancies Act 2004 (“ the RTA 2004” or “ the Act”) affords important statutory protections to a person who has been in occupation of a dwelling under a tenancy for a continuous period of six months. Such a protected tenancy is referred to under the Act as a “ Part 4 tenancy”.

4 A tenancy of a dwelling may not be terminated by the landlord or the tenant by means of a notice of forfeiture, a re-entry or any other process or procedure not provided for under Part 5 of the RTA 2004 (section 58). A Part 4 tenancy may only be lawfully terminated by the service of a valid notice of termination.

5 A tenant, who has been served with a notice of termination, and wishes to challenge the validity of same is entitled to invoke the dispute resolution mechanisms under Part 6 of the RTA 2004. These include, relevantly, the right to refer the dispute for determination by the Residential Tenancies Board (“ the Board”). The legislation provides for mediation, adjudication and an appeal to the Tenancy Tribunal. The Tenancy Tribunal is an independent tribunal operating under the auspices of the Board.

6 It should be explained that once a determination is made by the Tenancy Tribunal, it will be embodied subsequently in a written record prepared by the director of the Board. This written record is referred to under the RTA 2004 as a “ determination order”. The determination order is then issued to the parties concerned by the director. There is a statutory right of appeal to the High Court on a point of law against a determination order.

7 The legislative intent underlying the dispute resolution mechanisms under the Residential Tenancies Act 2004 has been described as follows by the Supreme Court in Canty v. Attorney General [2011] IESC 27 (at paragraph 13):

“The Act of 2004 established the Board whose principal function is the resolution of disputes between landlords and tenants of dwellings to which this Act applies. It was intended that the Board's dispute resolution function would replace the role of the courts in relation to such matters in tenancies. The process before the Board has two stages: stage one is either mediation or adjudication and is confidential; stage two is a public hearing by a Tenancy Tribunal. The Tribunal consists of three people drawn from the Board's Dispute Resolution Committee. A mediated agreement or the determination of an adjudicator or of the Tribunal will result in a determination order of the Board. The determination of the Tribunal may be appealed to the High Court within 21 days, but only on a point of law. The Circuit Court * enforces the determination orders of the Board pursuant to s.124 of the Act of 2004.”

8 It will, obviously, take a certain amount of time to carry out and complete these various stages of decision-making. The RTA 2004 expressly addresses the legal entitlements of the parties in the interregnum prior to a final, binding determination as follows. Section 86 provides that a termination of the tenancy concerned may not be effected pending the determination of a dispute that has been referred to the Board (but subject to that determination when it is made). Section 123 of the RTA 2004 provides that a determination order, i.e. the order embodying the terms of a determination of the Tenancy Tribunal, shall become binding on the parties concerned unless an appeal in relation to the determination is made to the High Court before the expiry of the relevant period. The “ relevant period” is defined under subsection 123(8) as meaning the period of 21 days beginning on the date that the determination order concerned is issued to the parties. Having determined an appeal, the High Court has jurisdiction to make consequential orders directing the Board's director to cancel or vary the determination order as originally made.

9 The combined effect of section 86 and section 123 is that a termination of a Part 4 tenancy may not be lawfully effected where a statutory appeal has been made to the High Court within time and remains outstanding. Until the appeal proceedings have been decided, there will not have been a final, binding determination of the dispute. The initial determination order made by the Board is subject to variation or even cancellation by the High Court. It is only where the determination order is either affirmed or varied by the High Court that it becomes effective. It can then be enforced before the District Court.

10 Put otherwise, a determination order as initially issued by the Board will only become binding, without any involvement of the High Court, if the 21 day period prescribed has lapsed without an appeal having been made under section 123 of the RTA 2004.

PROCEDURAL HISTORY

11 These proceedings concern a Part 4 tenancy which had been entered into between Reginald Carroll (“ the Tenant”) and Terry Rowland and Margaret Rowland (collectively, “ the Landlords”) in March 2020. The Landlords purported to serve a notice of termination on the Tenant on the grounds, inter alia, of anti-social behaviour on the part of the Tenant. The Tenant sought to challenge the validity of the notice of termination. This challenge was rejected by the Tenancy Tribunal in a detailed determination of June 2021. The Tenancy Tribunal held that the Tenant had been guilty of anti-social behaviour, including the making of threats against the Landlords. The Tenancy Tribunal's determination was duly embodied in a formal “determination order” by the...