Stulpinaite v The Residential Tenancies Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 12 March 2021 |
| Neutral Citation | [2021] IEHC 178 |
| Docket Number | [Record No. 2019/383 MCA] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 178
Barr
[Record No. 2019/383 MCA]
THE HIGH COURT
This is an appeal by the tenant pursuant to s.123 of the Residential Tenancies Act 2004 (as amended) against a Determination Order issued by the respondent on 5th December, 2019; in which it determined that the notice of termination which had been served by the landlord (the notice party to this appeal) was valid.
By a notice of termination dated 25th March, 2019 issued by Messrs Byrne Wallace, Solicitors, on behalf of the notice party, the appellant was given notice of termination of her tenancy in Flat 8, 34 Elgin Road, Ballsbridge, Dublin 4. She was told that her tenancy would terminate on 12th November, 2019. The stated reason for the termination, was that the landlord intended to sell his interest in the building in which the appellant's flat was contained, within three months of termination of the tenancy.
The appellant challenged the notice of termination by way of adjudication. The adjudicator upheld the notice of termination. The appellant appealed that to the Tenancy Tribunal, which again upheld the validity of the notice of termination. This is an appeal on a point of law against the findings made by the Tenancy Tribunal (hereinafter referred to as “ the Tribunal”).
The notice party did not give evidence before either the adjudicator or the Tribunal. Evidence of his intention to sell the property at the date of service of the notice of termination was given by his letting agent. A substantial volume of supporting documentation was also put before the Tribunal to establish that he had the requisite intention at the date of service of the notice of termination. In essence, the appellant appeals against the findings made by the Tribunal on the following grounds:-
(a) Given the history of the matter between the tenants of the building and the landlord, the Tribunal ought of its own motion to have secured the attendance of the notice party before it to give oral evidence;
(b) that by failing to take that step, the Tribunal effectively denied the appellant her right to cross-examine the notice party as to the existence of his stated intention;
(c) that there was no evidence before the Tribunal which would enable it to have reached the findings that it did in relation to the intention of the landlord at the relevant time;
(d) that the Tribunal incorrectly held that s.35A of the Act did not apply in the circumstances, and
(e) that the court should exercise its inherent jurisdiction to hold that s.35(a) should be applied to the circumstances of the case.
In response, the respondent and the notice party, though separately represented at the appeal hearing before this Court, made similar arguments to the effect that as this was an appeal on a point of law, the court could only overturn a finding of primary fact if there was no evidence before the decision maker capable of supporting that finding; that the appellant had not been denied a right to cross-examine the notice party, because such right did not arise due to the fact that the notice party had not given evidence before the Tribunal; that it was clear from the case law that tribunals of this sort are entitled to act on hearsay evidence and documentary evidence and to conduct hearings in an informal manner and that being the case, no criticism could be made of either the conduct of the hearing before the Tribunal, or its findings; that s.35A did not apply to the provisions of this case and finally, that the court had no inherent jurisdiction to apply statutory provisions to circumstances to which those statutory provisions did not apply in the first instance.
The notice of termination the subject matter of the Tribunal's determination in this case, was in fact the second notice of termination served by the notice party. In these circumstances, it is necessary to set out the background to the Tribunal's determination in a little detail.
The appellant is a single lady. She is employed as a childminder. Her tenancy in Flat 8, 34 Elgin Road, Ballsbridge, Dublin 4, commenced on 2nd September, 2005. It was an oral tenancy from week to week. She was never given a rent book. Payment of rent was in a somewhat unusual manner, in that she was required to place the rent in a box, which was cemented into a wall on the property. The current rent being paid by the appellant is €155 per week.
By letter dated 23rd March, 2018, the notice party informed the appellant that he had instructed his letting agent to serve notice of termination on her on the grounds that he intended to carry out refurbishment works to the property. A notice of termination dated 28th March, 2018 issued from the notice party's letting agent to the appellant, informing her that her tenancy would terminate on 9th November, 2018. The letter stated that the tenancy was being terminated on the grounds that the landlord intended to carry out refurbishment works to the property. Those works were set out in the notice of termination.
When the appellant did not vacate the premises, the notice party submitted the matter to adjudication under the provisions of the Residential Tenancies Act 2004 (as amended) (hereinafter referred to as “ the Act”). A hearing was held before an adjudicator on 18th December, 2018, wherein the appellant challenged the validity of the notice of termination on the grounds that it was invalid, due to the fact that some of the works specified in the notice required planning permission and that had not been obtained by the notice party, as was required under the Act, in order for the notice of termination on ground of refurbishments to be valid. The adjudicator agreed with that assertion and the notice of termination was declared invalid. That resulted in a Determination Order being issued by the respondent in favour of the appellant on 21st February, 2019.
The notice party is the owner of two large properties in Ballsbridge, Dublin 4, being numbers 32 and 34 Elgin Road. Between the two properties he had approximately 30 tenants in 2018. As a result of the service of the first notice of termination (i.e. the one based on the intention to carry out refurbishments), approximately 25 of the tenants vacated the buildings. This is significant in light of an argument that was put forward by the appellant at the hearing before the Tribunal the subject matter of these proceedings.
On 25th February, 2019, an adjudication hearing was held in relation to an application brought by another tenant of the notice party, who had vacated his flat on foot of the notice of termination that had subsequently been found to be invalid. When he sought to be permitted to re-enter his flat, the notice party's letting agent had stated that the notice party still had the intention to carry out refurbishments to the property and in particular, to carry out those refurbishments which did not require planning permission. To that end, it was argued that the notice party had been advised by both the builder and his insurers, that they would require vacant possession of the property in order for the refurbishment works to be carried out.
It was alleged at the Tribunal hearing, the subject matter of these proceedings, that the notice party's letting agent had clearly stated at the adjudication hearing held on 25th February, 2019 that the notice party had the intention at that time to carry out refurbishments to the property. It will be seen that this is significant in light of subsequent assertions as to the intention of the notice party at relevant dates.
On 21st March, 2019, the notice party made a statutory declaration before Ms. Aisling Doyle, a practising solicitor, in relation to his intentions concerning the appellant's flat. He made a declaration in the following terms:-
“I, Michael Whelan, do solemnly and sincerely declare that I intend within a period of three months after the termination date, to enter into an enforceable agreement to transfer to another for full consideration, the whole of my interest in the dwelling or the property containing the dwelling and I make this solemn declaration conscientiously believing the same to be true and accurate and by virtue of the provisions of the Statutory Declarations Act, 1938.”
On 25th March, 2019 the notice party, through his solicitors, Messrs Byrne Wallace, served a notice of termination on the appellant; informing her that her tenancy in the flat would terminate on 12th November, 2019. The reason given was that the notice party intended to sell the property within three months of termination of the tenancy.
On 15th April, 2019, the appellant submitted an application seeking to challenge the validity of the notice of termination dated 25th March, 2019 and to have that dispute adjudicated upon pursuant to the Act. The appellant was represented in her application by Ms. Enid O'Dowd, a chartered accountant and member of Chartered Accountants Voluntary Assistance (CAVA). On 6th June, 2019 an adjudication hearing was held before an adjudicator, at which evidence was given on behalf of the landlord in relation to his intention to sell the property at the date of service of the notice of termination, by his letting agent, Mr. Ryan. In addition, an amount of documentation, which will be described in detail later in the judgment, was submitted which tended to show that the notice party had the requisite intention to sell the property as of 25th March, 2019.
Mr. Ryan's oral evidence to the adjudicator had been that he had been asked by the notice party to supply a valuation of the properties in mid to late January 2019. He further stated that at the end of January he...
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