Xerico Ltd v The Residential Tenancies Board

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty
• Judgment Date: 15 October 2025
• Neutral Citation: [2025] IECA 202
• Docket Number: Record Number: 2023/316

Between/

Xerico Limited

Appellant

and

The Residential Tenancies Board

Respondent

[2025] IECA 202

Faherty J.

Pilkington J.

Butler J.

Record Number: 2023/316

THE COURT OF APPEAL

No Redaction Needed

JUDGMENT of Ms. Justice Faherty delivered on the 15 ^th day of October 2025

1 . This is a Consultative Case Stated referred to the Court by His Honour Judge O'Connor, Judge of the Circuit Court, pursuant to s. 16 of the Courts of Justice Act 1947 for determination by the Court.

2 . By notices of appeal dated 15 December 2022, Xerico Limited (hereafter, for ease of reference, “the appellant”) initiated twenty statutory appeals in the Circuit Court pursuant to s. 148AA(1) of the Residential Tenancies Act 2004 (“the 2004 Act”). Whilst the underlying facts in each case were different, the notices of appeal in each are identical and they seek to set aside sanction decision notices ( “the decision notices”) issued by the Residential Tenancies Board ( “the Board”). The Board is a statutory body established on 1 September 2004 pursuant to s.150 of the 2004 Act. Its functions are identified in s.151 and include “ the resolution of disputes between tenants and landlords” (s.151(1)(a)) and “ the investigation of landlords and the imposition of sanctions in accordance with the provisions of Part 7A” (s.151(1)(ba)).

Discussion and Decision

3 . The Case Stated concerns the interpretation of Part 7A of the 2004 Act. Part 7A was enacted by the Residential Tenancies (Amendment) Act 2019 which provides in the long title that the Board is to be conferred with additional powers “ to carry out investigations of landlords and impose administrative sanctions”. Part 7A provides for a detailed procedural process to be undertaken by the Board when investigating a complaint under that part. It requires the Board to investigate complaints of “ improper conduct”. Improper conduct is defined in Schedule 2 of the 2004 Act and for the purposes of this Case Stated, it includes a breach of the rules on “rent pressure zones” in respect of which a landlord can be investigated by the Board and subject to administrative sanction.

An overview of the statutory process

4 . The main steps of the statutory process under Part 7A may be summarised as follows ((a)-(m)):-

(a) A person makes a complaint in writing to the Board alleging that improper conduct by a landlord has occurred or is occurring (s.148T), or the Board may “ of its own volition” cause an investigation to be carried out (s. 148U(1)). The latter was the case here. Whether an investigation is carried out on foot of a complaint or of its own volition, in any event the Board “ shall appoint an authorised officer and a decision maker”.

(b) The authorised officer ( “AO”) is appointed pursuant to s.148U(2).

(c) Pursuant to s.148V, the AO must (1) give a notice in writing to the landlord of the matters to which the investigation relates; (2) give the landlord copies of any documents relevant to the investigation; and (3) afford the landlord an opportunity to respond within 21 days from the date on which the landlord received the notice or such further period not exceeding 21 days as the AO allows.

(d) The AO has extensive powers to carry out the investigation (s. 148S). The primary obligation is to gather all the evidence relating to the alleged improper conduct.

(e) The AO's powers include power to “ enter, inspect, examine and search” any premises where he or she has reasonable grounds for believing any activity in connection with the letting or tenancy is carried on (s.148S(a)), remove records from a premises which an AO considers is necessary for an investigation (s.148S(b)), require any person at the premises to provide the AO with such assistance as he or she may require (s.148S(d)) and to require a landlord “ to provide an explanation of a decision, course of action, system or practice or the nature or content of any records” (s. 148S(f)). An AO may also request a person who “ in the authorised officer's opinion” possesses information that is relevant to the investigation to provide that information to the AO or to attend before an AO to “ answer fully and truthfully any questions put to the person by the [AO]” (s.148S(6)).

(f) For the purposes of an investigation, an AO may conduct an oral hearing. A landlord may also request an oral hearing (s.148S(14)). If an oral hearing is held there is power to take evidence on oath, request the attendance of a person(s), and allow persons attending to be examined and cross-examined.

(g) Section 148X of the 2004 Act, in relevant part, is in the following terms:-

“(1) Subject to subsection (3), where an authorised officer has completed an investigation, the authorised officer shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records provided to the authorised officer pursuant to any requirement under section 148S, any statement or admission made by any person pursuant to any requirement under that section, any submissions made and any evidence presented (whether at an oral hearing referred to in section 148S(14) or otherwise)—

(a) prepare a draft of the investigation report, and

(b) give to the landlord to whom the investigation relates and, if the investigation arose following receipt of a complaint, the complainant—

(i) a copy of the draft of the investigation report,

(ii) a copy of this section, and

(iii) a notice in writing stating that the landlord and complainant (if any) may, not later than 21 days from the date on which the notice was respectively received by them, or such further period not exceeding 21 days as the authorised officer allows, each make submissions in writing to the authorised officer on the draft of the investigation report.

(2) Subject to subsection (3), an authorised officer who has complied with subsection (1) shall, as soon as is practicable after—

(a) the expiration of the period referred to in subsection (1)(b)(iii), and

(b) having—

(i) considered the submissions (if any) referred to in subsection (1)(b)(iii) made before the expiration of that period on the draft of the investigation report concerned, and

(ii) made any revision to the draft of the investigation report which, in the opinion of the authorised officer, is warranted following such consideration, prepare the final form of the investigation report and submit it to the decision maker appointed by the Board under section 148U with any such submissions annexed to the report.”

The AO will indicate in the report whether improper conduct has occurred. What is noteworthy is that what the landlord receives is a draft of the investigation report upon which the landlord may make submissions for the AO to consider and then to make revision if he or she considers a revision is warranted. The landlord does not receive the final form of the investigation report which the AO sends to the decision maker together with any submissions the landlord may have made on the draft report. In his submissions to the Court, counsel for the appellant described the investigation phase as “tightly controlled” where the content of what the decision maker receives is ultimately determined by the AO.

(h) The decision maker is independent in his or her role and function (s. 164A(a)). The decision maker considers the report of the AO, together with the submissions of the landlord and complainant on the draft report (if any) (s. 148Y(5)). As is clear from s.148X(3), the AO is precluded from addressing the issue of sanction.

(i) Section 148X(4) provides that when the decision maker has considered the final investigation report (and any submissions annexed thereto), he or she shall decide to do one of the following:-

“(4)(a) if he or she is satisfied that improper conduct by the landlord has occurred or is occurring, may, subject to subsection (9) and section 148Z impose a sanction on the landlord as he or she thinks fit in the circumstances of the case;

(b) if he or she is not satisfied that improper conduct by the landlord has occurred or is occurring but is of the opinion that a further investigation of the landlord is warranted, shall direct the Board to cause a further investigation on the matters to which, in the opinion of the decision maker the further investigation should relate;

(c) if he or she is not satisfied that improper conduct by the landlord has occurred or is occurring and is not of the opinion that a further investigation of the landlord is warranted, and the investigation arose—

(i) following the receipt of a complaint by the Board, shall dismiss the complaint,

(ii) on the volition of the Board, shall decide that no further action under this Part is warranted.”

(j) Section 148X(6) is in the following terms:-

“(6) Where the decision maker has considered an investigation report (and any submissions annexed thereto) submitted to him or her under subsection (2), the decision maker may, if he or she considers it proper to do so for the purposes of assisting him or her to make a decision under subsection (4), or for the purposes of observing fair procedures, for those purposes—

(a) conduct an oral hearing and give to the landlord and, if the investigation arose following receipt of a complaint, the complainant—

(i) a copy of the investigation report (and any submissions annexed thereto), and

(ii) a notice in writing stating that the landlord and complainant may, not later than 14 days from the date on which the notice was respectively received by them, or such further period not exceeding 14 days as the decision maker allows, each make submissions in writing to the decision maker on the investigation report,

or

(b) give to the landlord and, if the investigation arose following receipt of a complaint, the complainant a copy of the investigation report and the notice referred to in...