Web Summit Services Ltd v Residential Tenancies Board
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 17 October 2023 |
| Neutral Citation | [2023] IEHC 634 |
| Court | High Court |
| Docket Number | RECORD NO: 2022/207/MCA |
and
[2023] IEHC 634
RECORD NO: 2022/207/MCA
THE HIGH COURT
Judgment of Mr Justice Cian Ferriter delivered 17 th October 2023
This is an appeal on a point of law pursuant to section 123(3) of the Residential Tenancies Act 2004 (the “2004 Act”) from a determination and order of a Tenancy Tribunal (“the Tribunal”) of 17 June 2022 holding that the appellant was in breach of s.16(f) of the 2004 Act in respect of its obligations as tenant of a residential property in Dublin 6.
The Tribunal held that the breach occurred “ as a result of the acts of the occupants in disposing of grease, coffee granules and food waste which caused a blockage in the waste pipe.” The waste pipe was connected to the kitchen sink. The blockage led to extensive water damage to the property. The Tribunal ordered the appellant to pay €20,000 to the landlord (the notice party to these proceedings) being damages in excess of normal wear and tear to the property. The landlord's evidence was that the cost of repairing the damage was significantly in excess of that sum but €20,000 is the statutory limit to what the Tribunal can order by way of much damages.
The appellant claims in this appeal that the Tribunal's determination and order (for ease, “the decision”) is vitiated by errors of law, particularly on the question of whether the appellant's use of the sink was normal such that the resulting blockage and damage was owing to normal wear and tear. The Respondent (“the Board”) denies any such errors. The notice party landlord did not participate in the appeal.
Given its centrality to the appeal, it is useful to set out the material provisions of s.16 of the 2004 Act. Section 16 of the 2004 Act is headed “ Obligations of tenants”. Section 16(f) provides:
“16.—In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall—
(f) not do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy, but there shall be disregarded, in determining whether this obligation has been complied with at a particular time, any deterioration in that condition owing to normal wear and tear, that is to say wear and tear that is normal having regard to—
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen would occur since that commencement, and
(iii) any other relevant matters.”
Section 16(g) provides that if a tenant is in breach of section 16(f):
“ a tenant must take steps as the landlord may reasonably require to be taken for the purpose of restoring the dwelling to the condition mentioned in paragraph (f) or to defray any costs incurred by the landlord in his or her taking such steps as are reasonable for that purpose.”
The effect of s.16(f) is that a tenant is prohibited from doing any act that causes deterioration in the condition of the dwelling beyond normal wear and tear. What constitutes “normal wear and tear” will fall to be judged on a case by case basis having regard to the criteria set out in the subsection.
The appellant is a corporate entity which has held a lease as tenant of a residential property in Dublin 6 (“the property”) since in or around 1 July 2015. The appellant organises annual technology conferences. The appellant uses the property to house staff and clients. The terms of the lease are on relatively standard terms. The lease operated without any formal issues arising until March 2021.
On 24 March 2021 the residents of the dwelling notified the appellant's facilities manager that the washing machine was not working and that there appeared to be a leak in the kitchen. Between the appellant and the landlord, a number of plumbers came to look at the matter but had difficulty identifying the cause of the leak. Eventually, on 9 April 2021 a plumbing outfit called until DC Drain Clearing identified that the cause of the leak was a significant blockage in a pipe connected to the kitchen sink. DC Drain Clearing concluded that coffee granules and other food deposits had been the cause of the blockage.
The landlord delivered a notice of breach of obligations on the appellant on 10 June 2021. The landlord proposed a figure of approximately €88,000 for repairs.
On 9 July 2021, the landlord made a complaint to the Board and alleged inter alia that the appellant had breached its tenancy obligations by failing to pay rent in accordance with the tenancy agreement; by causing/allowing damage to occur at the property; and by failing to notify the landlord promptly of defects in the property to enable him to carry out repairs.
A notice of termination was purported to be served by the landlord on 12 July 2021.
The Board operates a two-stage dispute resolution process. On a referral for dispute resolution services pursuant to section 76 of the 2004 Act, a complaint may be referred to an adjudicator or on a consensual basis to a mediator for resolution. If the parties refuse mediation, then the Board will arrange for an adjudication to take place. Following the adjudication, the adjudicator's determination will be set out in a report which the Board will issue to the parties to the dispute.
Section 100 of the 2004 Act provides that a determination of an adjudicator may be appealed to a Tribunal. This is a de novo appeal ( Teniola v. Private Residential Tenancies Board [2014] IEHC 604, at para. 17).
Ordinarily, where an appeal is a de novo appeal, the decision and ruling of the first instance decision-maker is of no relevance and neither the evidence heard, nor the positions taken by the parties in the first instance hearing has any bearing on the appeal hearing. This ordinary rule is modified somewhat in the case of appeals to a Tribunal by section 104(7) of the 2004 Act which provides that “ In the case of an appeal under section 100, the Tribunal may have regard to the report of the adjudicator.” This allows, but does not require, the Tribunal to have regard to the report of an adjudicator.
The procedures governing hearings before the Tribunal are set down in the Procedural Rules made pursuant to section 109 of the 2004 Act and the Tenancy Tribunal Procedures. The Board can and does act in an informal manner. It has been given wide powers including the power to take unsworn evidence and to take the necessary steps itself to ensure that it has adequate evidence to decide the dispute before it (see Stulpinaite v. Residential Tenancies Board [2021] IEHC 178 at para. 62).
The dispute between the landlord and the appellant in this matter came before the Board pursuant to section 76 of the 2004 Act and was referred by the Board to an adjudicator (“the Adjudicator”).
Following a hearing, the Adjudicator issued a report. In that report, he concluded that the warning notices and notice of termination were not served in accordance with the 2004 Act and were invalid; and that the appellant breached the terms of the lease and section 16(a) of the 2004 Act by failing to pay rent when it fell due but as the rent had been repaid no damages were warranted. These findings are not of relevance to this appeal.
The Adjudicator addressed the alleged breach of s.16(f) by the incorrect disposal of coffee grounds and food waste down the kitchen sink as follows:
“ 17. The next issue I will consider is the Applicant Landlord's allegation that the Respondent Tenant is responsible for causing the blockage of the kitchen drain by the incorrect disposal of coffee grounds contrary to s16(f) of the 2004 Act. The report by DC Drain Cleaning Ltd on which the Applicant Landlord relies for this claim states that they “removed a lot of coffee waste, grease and food wastes etc., which was the cause of the blockage.” For there to be a breach of the Respondent Tenant's obligations under s16(f) of the 2004 Act, the Applicant Landlord must prove, on the balance of probabilities that the Respondent Tenant, and/or the occupants of the dwelling under its tenancy, used the dwelling, or in this case the kitchen sink, in such a fashion so as to cause deterioration beyond normal wear and tear. The disposal of coffee grounds in the kitchen sink does not constitute such. It is unfortunate that the blockage was allowed to build up to such an extent, but such blockages occur through normal use. Accordingly, on the basis of the written reports and submissions and of the oral submissions at hearing, I find, on the balance of probabilities, that the Applicant Landlord has not proven its case in this regard.”
The Adjudicator did however find that the water egress from the blocked drain and the damage caused by it predated the date when the appellant claimed to have first become aware of the issue; that the appellant was responsible for failing to notify the landlord of the problem within a reasonable period of time (in breach of its obligations under s.16(d) of the 2004 Act); that this failure exacerbated the damage to the dwelling caused by the blocked drain, contrary to s16(f) of the 2004 Act; and that such damage was in excess of normal wear and tear. He found that the appellant was responsible for 20% of the cost of remedying the damage to the dwelling caused by the blocked drain, which equated to a sum of €19,944.50.
The appellant appealed the Adjudicator's decision to the Tribunal pursuant to s.100 of the 2004 Act and provided written submissions in support of its appeal. The effect of the appeal to the Tribunal proceeding to a determination is that the Adjudicator's determination falls away: s.99(4) of the 2004 Act.
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