Disputes & Remedies
Cases
Clarke v O’Sullivan
Neutral Citation: [2011] JILL-CC 020201
Docket Number: Record No. 010800/2010
Reported In: [2011] 2 JIC 0202
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: JUDGE MATTHEWSJUDGE MATTHEWS
I am obliged for the submissions in relation to this Act, which is relatively new to me and in particular for Ms. Cassidy’s help and for her useful book. What I am being asked by Mrs. O’Sullivan against Mr. Clarke is a suggestion that this matter ought be referred to the Private Residential Tenancies Board. Section 124(6) of the Residential Tenancies Act,2004 provides that:
“If the applicant under this section is not the Board, the respondent shall give notice to the Board that he or she proposes to oppose the application and the Board shall be entitled to appear and be heard at the hearing of the application.”
and it is clear that the Board have a right of audience in an application of this nature. Mrs. O’Sullivan principally relies upon the provisions of s.182 of the Residential Tenancies Act,2004, which provides that:
2 “(1) On and from the commencement of Part 6, proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part unless one or more of the following reliefs is being claimed in the proceedings-
(a) damages of an amount of more than €20,000,
(b) recovery of arrears of rent or other charges, or both, due under a tenancy of an amount, or an aggregate amount, of more than €60,000 …”
To put dispute in context, I look to section 76(1) of the Act of 2004, which provides that:
“Either or both of the parties to an existing or terminated tenancy of a dwelling may, individually or jointly, as appropriate, refer to the Board for resolution any matter relating to the tenancy in respect of which there is a dispute between them.”
Section 124 is also important as it deals with enforcement of a determination order by the Board and s.124(1) provides that:
“If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).”
I have to deal with that in the context of s.78(1)(n) upon which Mr. Collins relies and it provides that:
“Without prejudice to the generality of sections 76 and 77, the matters in respect of which disputes and, where appropriate, complaints may be referred to the Board for resolution include:”
…
(n) an alleged failure by a person to comply with a determination order made by the Board”
There has been an alleged failure in this case in that it is said that Donnacha O’Sullivan has not complied with the determination order of the Board. Section 91 is also important in this context in that it provides that:
2 “(1) To the extent that an alternative remedy is available in respect of any dispute falling within this Part and a person takes any steps to avail himself or herself of that remedy, that person may not refer the dispute to the Board for resolution.
(2) If a person, other than the person mentioned in subsection (1), refers a dispute to the Board for resolution, being a dispute-
(a) to which that other person is a party, and
(b) as respects which that other person takes or has taken steps of the kind mentioned in that subsection,
then the Board, a mediator, an adjudicator or the Tribunal may, in dealing with the dispute, take account (with regard to the relief that may be granted and to such extent as it or he or she considers just) of the existence of that alternative remedy”
Originally, this case was brought by Mr. Clarke and the parties then provided for the referral of the dispute to a tribunal. It appears that there was a settlement of the dispute and the settlement became part of a determination order. There is a dispute between the parties as to whether Mrs. O’Sullivan has been in compliance with the determination order of the tribunal. Mr. Clarke asserts that there has been a failure comply with clause 4(1) of the determination order and I refer to paragraph 11 of Mr. Clarke’s affidavit. In section 124 of the Act, the question is as to whether there is non-compliance with a determination order of the tribunal. This may be referred to the Circuit Court. Section 124 expressly confers jurisdiction on the Court and the issues whether a party such as Mrs. O’Sullivan has complied with the determination order. The Court has seisin of the matter. Section 124 goes on to provide after subsection (1) that:
2 “(2) On such an application and subject to section 125, the Circuit Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless –
(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or
(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.
(3) The matters mentioned in subsection (2) are-
(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,
(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,
(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,
(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.”
There are very limited rights granted by the provisions of s.182 of the Act. The issue here is whether the party has complied with the determination order. That is, in my judgment, something that the Circuit Court may determine. I will allow this application to be made by Mr. Clarke and, although I am impressed by the cogency of the arguments made by Mr. Collins, in my view, when one looks at sections 182 and 124 together, I believe the Circuit Court can deal with these issues.
Nowak v Residential Tenancies Board
Neutral Citation: [2017] IEHC 111
Reported In: [2017] 2 JIC 2109
Docket Number: (A) RECORD NO: 2016/100/MCA (B) RECORD NO. 2016/173MCA (C) RECORD NO. 2016/225MCA
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr Justice Max Barrett
I. Applicable Law
2
The court recently considered the law and recent case-law governing s.123 appeals in Marwaha v. Residential Tenancies Board [2016] IEHC 308 and does not consider that further elaboration or recitation of the law is required herein, beyond noting again the relatively constrained role that the court has consistently been held to enjoy in s.123 appeals in judgments from Canty v. Private Residential Tenancies Board [2007] IEHC 243 through to, inter alia, Doyle v. The Private Residential Tenancies Board [2015] IEHC 724.
III. Common Failings
3
Before proceeding to consider Appeal A, Appeal B and Appeal C, the court notes a couple of common failings to each appeal brought:
– first, the Nowaks ought to have joined the landlords to the within appeals as the landlords’ interests are directly affected by same. This failure to join seems to be a consistent failure by tenants in the within form of appeals and results in the absurd situation that landlords regularly attend at the appeals, without technically being a party to same, even though their interests are directly affected by what the court may decide. There are only so many times that this point can respectfully be made before a consequence must follow for would-be appellants who do not join landlords, as they should, to appeals such as that now presenting.
– second, contrary to O.84C, r.2(3) of the Rules of the Superior Courts (1986), as amended, the notices of motion commencing the within appeal do not ‘state concisely the point of law on which the appeal is made’. The court is mindful in this regard that, as with the Nowaks, people bringing the within form of appeal often do so in person. In truth, the odds seem immediately stacked against tenant-appellants in this regard because they are invariably opposed in court, itself an alien and challenging forum, by counsel skilled in the law; in fact, so unevenly matched do the respective parties seem generally to be (though Mr Nowak put in a notably good “innings”) that the court must admit to some doubt whether the present system of appeal to the High Court is especially effective or efficient as an avenue of appeal, at least so far as tenants generally are concerned: when the unarmed meet the well-armed, the general outcome of battle seems likely to follow a certain course. But that is for another day; for now, mindful that the appellants are lay-litigants, the court is satisfied to overlook any deficiencies in the form of the notices of motion.
IV. Appeal A
(i) Background.
4
The Nowaks entered into a tenancy agreement with the landlords around 1st August, 2009. The original rent was €1.1k per month; in August, 2012, at the Nowaks’ request it was reduced to €1k per month. A summary chronology of the events leading up to the making of the determination order against which appeal is brought is set out hereafter:
19
th September, 2014. The Nowaks submit an application for dispute resolution services pursuant to s.76 of the Residential Tenancies Act (RTA). (This application contested the validity of a rent increase from €1k to €1.25k per month, effective 1st October, 2014).
12
th November, 2014. The Nowaks submit a second application for dispute resolution services. (This application alleged that the landlords failed to attend to various matters arising at the premises in a timely manner. It was also alleged that the Nowaks had been penalised by the management company and that the landlords had failed adequately to maintain the premises).
28
th November, 2014. Adjudication hearing takes place.
12
th February, 2015. Adjudicator’s report served on parties under cover letter dated 12th February. The letter advised, inter alia, that if the determination was not appealed within the statutory timeframe, the Board would, pursuant to s.121 of the RTA make an order reflecting same. Both landlord and Nowaks appeal.
29
th October, 2015. Tenancy Tribunal appeal hearing proceeds.
[Some objection seems to be taken by the Nowaks to the identity of the person who chaired this hearing, it appears because she had heard a previous dispute involving Mr Peter Nowak. The court sees no basis for, or merit to, this objection. There is not a hint of any bias presenting. The fact that the same individual would participate in two hearings involving the Nowaks appears to the court to be testament to the sheer number of Tenancy Tribunal hearings that have involved the Nowaks, not to any deficiency in or concerning those hearings.]
12
th February, 2016. Determination order that is the subject of Appeal A issues.
(ii) Objections and observations.
5
The Nowaks object to: (1) the market rent settled upon by the Tenancy Tribunal; (2) the fact that the Tribunal decided that they should be reimbursed for the purchase of one mattress, not two; (3) the (alleged) fact that the management company engaged in some form of victimisation of the Nowaks; (4) an alleged ultra vires determination by the Tenancy Tribunal as to the non-payment of rent.
6
As to (1)–(3), these are not points of law and it is points of law with which this Court is concerned in an appeal under s.123. As to (4), the Tribunal made no determination as to the finding of rent, though it does note in the body of its report that it has been confirmed to it by the parties that payment of rent has ceased. It is not ultra vires for a tribunal to note a fact that has been confirmed to it by parties. But even if it had been, the court does not see that any prejudice would arise for the Nowaks if the Tenancy Tribunal acting ultra vires (and the court reiterates that the Tribunal did not so act) found to be a truth what the parties in any event agreed was the truth. De minimis non curat lex (“The law does not concern itself with trifles”); neither does it afford relief for incidental error (if error there be) of no consequence.
(iii) Some Common Conclusions Regarding Appeal A, Appeal B and Appeal C.
7
In his affidavit evidence, Mr Nowak purports to identify a number of points of law which he asks the court to consider. In truth, however, what he does is seek to engage in a “Q&A” session on residential tenancy law (a) without tying in the points raised to the impugned decision of the Tenancy Tribunal and/or (b) in a manner that seeks through sleight of contention to impugn the substantive conclusions reached by the Tenancy Tribunal on the evidence before it. None of these points fall properly to be addressed within the parameters of the within appeal.
8
It appears to the court from the evidence before it that the Tenancy Tribunal afforded the parties an opportunity to present their respective cases, to engage in cross-examination and to make final submissions. In doing so the court does not see that the Tribunal departed in any respect from the principles of natural and constitutional justice, the provisions of the RTA or the provisions of the ECHR. Nor does the court see any other legal deficiency of any nature to present.
V. Appeal B
(i) Background.
9
Appeal B concerns the same tenancy arrangement as Appeal A. A summary chronology of the events leading up to the making of the determination order against which appeal is brought is set out hereafter:
3
rd November, 2015 The Nowaks submit an application for dispute resolution services in the context of a rent arrears and over-holding dispute.
23
rd November, 2015. Adjudication hearing takes place. The Nowaks do not attend.
8
th December, 2015. Adjudicator’s report served on parties under cover letter dated 8th December. The letter advised, inter alia, that if the determination was not appealed within the statutory timeframe, the Board would, pursuant to s.121 of the RTA make an order reflecting same. The Nowaks appeal.
7
th March, 2016. Tenancy Tribunal appeal hearing proceeds.
22
nd April, 2016. Determination order that is the subject of Appeal B issues.
(ii) Objections and observations.
10
The Nowaks maintain that: (i) the level of rent arrears fixed by the Tenancy Tribunal were based on ‘non-existing and non-agreed terms of the tenancy’; (ii) certain damages awarded were erroneous on the basis that there was ‘no reasonable or coherent basis’ for awarding same; (iii) costs were awarded without any reasonable basis; (iv) the Tribunal was biased and prejudiced.
11
As to (i) and (ii), these are objections to the conclusions reached by the Tribunal on the evidence before it and do not involve any point of law. As to (iii), the costs were awarded against the Nowaks pursuant to s.5(4) of the RTA; the court sees no basis in the evidence on which to interfere with this award of costs. As to (iv), bias appears to be alleged on two grounds. First, a Tenancy Tribunal member appears to have recognised from the papers before him that Ms Nowak is Mr Nowak’s sister. The court must admit that it is entirely mystified as to how the Tribunal member’s recognition of this acknowledged fact could constitute bias. Second, one of the Tribunal members appears to have sat on a previous Tribunal that heard complaints involving the Nowaks. That this should be so does not per se support a finding of bias. The fact that the same individual would participate in two hearings involving the Nowaks appears to the court to be but testament to the sheer number of hearings that have involved the Nowaks, not to any deficiency in those hearings or indeed in the RTB’s appeal system generally.
12
The same further conclusions fall to be reached in the context of Appeal B as were reached in respect of Appeal A under the heading ‘(iii) Some Common Conclusions Regarding Appeal A, Appeal B and Appeal C.’
VI. Appeal C
(i) Background.
13
Appeal C concerns the same tenancy arrangement as Appeal A. A summary chronology of the events leading up to the making of the determination order against which appeal is brought is set out hereafter:
25
th February, 2016 The Nowaks submit an application for dispute resolution services.
29
th February, 2016 The landlords submit an application for dispute resolution services.
22
nd March, 2016. Adjudication hearing takes place. The Nowaks do not attend.
23
rd March, 2016. Adjudicator’s Report served on parties under cover letter dated 23rd March. The letter advised, inter alia, that if the determination was not appealed within the statutory timeframe, the Board would, pursuant to s.121 of the RTA make an order reflecting same. The Nowaks appeal.
1
st June, 2016. Tenancy Tribunal appeal hearing proceeds.
21
st June, 2016. Determination order that is the subject of Appeal C issues.
(ii) Objections and observations.
14
The Nowaks object to the Tribunal’s requiring them to pay rent arrears in circumstances where, they claim, there is no ‘binding agreement (written or oral) relating to the rent payment’. This is an objection to the conclusion reached by the Tribunal on the evidence before it and does not involve any point of law. The same further conclusions fall to be reached in the context of Appeal C as were reached in respect of Appeal A under the heading ‘(iii) Some Common Conclusions Regarding Appeal A, Appeal B and Appeal C.’
VII. Conclusion
15
For the reasons stated above, the court is coerced as a matter of law to conclude that each of Appeal A, Appeal B and Appeal C must fail. No relief falls therefore to be ordered in favour of either appellant. The Nowaks ought now to pay all amounts outstanding to the landlords.
Duniyva v Residential Tenancies Board
Reported In: [2017] 10 JIC 1205
Neutral Citation: [2017] IEHC 578
Docket Number: 2017 No. 152 MCA
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr Justice Max BarrettI. Background
1
On 12th April, 2017, the Residential Tenancies Board issued a determination order to the effect that, inter alia, a notice of termination served on Ms Duniyva by her landlords on 3rd November, 2016, is valid. On 10th May, 2017, Ms Duniyva notified the Residential Tenancies Board that she intended to appeal the determination of 12th April to the High Court. Such an appeal may be brought under s.123(3) of the Residential Tenancies Act 2004 which provides that ‘ Any of the parties [to proceedings before a Tenancy Tribunal] may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.’
2
Critically, an appeal under s.123(3) is ‘ on a point of law’. As a result, the ambit of such an appeal is considerably constrained. The level of constraint presenting was detailed by the High Court in its relatively recent decision in Marwaha v. Residential Tenancies Board [2016] IEHC 308, para.13 (another s.123(3) appeal), and need not be recited again here. The court would, however, note that it is its unfailing experience with all persons who bring s.123 appeals that what they seek is a re-hearing of their initial application; indeed Ms Duniyva, like all such appellants with whom this Court has treated, has sought to argue her appeal in part as though it is a re-hearing. If such a re-hearing is what appellants seek, and what courts, to a greater or lesser extent, find themselves called upon to hear, even if it is not what they substantively do, then it might perhaps be contended that that is what should be allowed at law. However, that contention and its resolution do not fall to this Court to raise or reach.
3
In her grounding affidavit, Ms Duniyva mentions four grounds of appeal, viz. that (1) the Tenancy Tribunal mis-applied s.34(4) of the Act of 2004, (2) the Tenancy Tribunal failed to show regard for the right to peaceful and exclusive occupation of “her” rented dwelling, as recognised by s.12(1)(a) of the Act of 2004, (3) the Tenancy Tribunal’s hearing and determination ‘ were one-sided and biased in favour of the landlord, failing to apply the principles of natural and constitutional justice’; and (4) the Tenancy Tribunal breached fair procedures by not allowing Ms Duniyva properly to cross-examine witnesses. In her oral submissions, Ms Duniyva also suggested that her time for appeal had been curtailed, and that she has a constitutional right to accommodation/housing which somehow operates to her advantage. The issue concerning the right of appeal is an irrelevance as Ms Duniyva has proceeded in a timely manner with her appeal. The court turns to examine each of the other points below.
II. Section 34(4) of the Act of 2004
4
Section 33 of the Act of 2004 provides that ‘ A Part 4 tenancy [and Ms Duniyva’s tenancy is such] may not be terminated by the landlord save in accordance with section 34.’ Section 34(1) provides, inter alia, that ‘ A Part 4 tenancy may be terminated by the landlord–(a) on one or more of the grounds specified in the Table to this section…’. Paragraph 4 of that Table, as amended by the Residential Tenancies (Amendment) Act 2015, s.28(d), (as commenced by the Residential Tenancies (Amendment) Act 2015 (Commencement of Certain Provisions) (No 3) Order 2016 ( S.I. No. 216 of 2016)), offers as a ground for termination that: ‘ The landlord requires the dwelling or the property containing the dwelling for his or her own occupation or for occupation by a member of his or her family and the notice of termination (the “notice”) contains or is accompanied by a statutory declaration [specifying certain detail]’. Pursuant to s.35(4) of the Act of 2004, inter alia, a grandchild of a landlord is a family member for the purposes of para.4 of the Table to s.34.
5
Ms Duniyva points to the fact that the ground for termination is that the landlord ‘requires the dwelling…’ (emphasis added), and suggests that termination of the tenancy must be essential or important rather than just desirable. The court notes that in the Oxford Online Dictionary, when it comes to: (1) the verb ‘ require’, the principal definition provided is ‘ need for a particular purpose’; and (2) the verb ‘ need’, the principal definition provided is ‘ require (something) because it is essential or very important rather than just desirable’.[1] Having regard to the just-stated definitions, the court considers that the use of the third-person singular form of the verb “to require” in para.4 of the Table to s.34 has the result that a landlord must “need” the dwelling in issue, which has the effect that termination of the tenancy must be essential or very important to him (or her), rather than just desirable. That need has a subjective and an objective dimension, in the sense that a Tenancy Tribunal would need to look to whether a landlord subjectively requires a dwelling (here the statutory declaration, it seems to the court, would typically be determinative) and also to whether that perceived requirement is a bona fide requirement and not (i) a requirement that a landlord purports to exist but which does not in truth exist, or (ii) a requirement that is advanced to achieve an unlawful objective, e.g., the perpetration of unlawful discrimination contrary to the Equal Status Acts.
[1] When it comes to the verb “to need”, Ms Duniyva in her submissions placed some emphasis on the meaning attributed by Geoghegan J., in Equality Authority v. Portmarnock Golf Club & ors [2009] IESC 73, to the noun ‘ needs’ in s.9(1)(a) of the Equal Status Act 2000. With respect, the court does not see that the meaning afforded by the Supreme Court to a particular noun in a statute that is of no relevance to the within application has any bearing on the meaning to be given by this Court to an unrelated verb (“to need”) which appears in the principal definition of yet another verb (“to require”) that is employed in an entirely different statute (the Act of 2004).
6
Here, the landlords want Ms Duniyva’s tenancy of her rented dwelling terminated in order that a grandson of theirs who is in college and desirous of independence from his parents, can live closer to where he studies, and does not have to be taking two long bus-rides to and from college each day, or (worse still) be cycling to or from college on dark mornings, and still darker evenings.
7
The court is not required in the within appeal to determine whether there is in the statutory declaration furnished by the landlords, and/or the broader facts presenting, sufficient to justify the requirements of the Act of 2004, as touched upon above. This being an appeal under s.123(3) of the Act of 2004, the court is concerned solely with points of law. Turning to this aspect of matters, is it the case that the Tenancy Tribunal could not, acting in accordance with law, have concluded that the landlords to Ms Duniyva required the dwelling and were bona fide in seeking to terminate the tenancy on the grounds specified? In this regard, the court notes the averment by the chairperson of the relevant Tenancy Tribunal that ‘[ T] he Tribunal took into account the evidence and materials before it, namely, the Statutory Declaration sworn by the Landlord and the direct evidence of the Landlord’s grandson to the effect that he required the dwelling for his own occupation’. Moreover, in the reasons for its decision, the Tenancy Tribunal stated, inter alia, in its Report, para. 7, that ‘ The Tribunal is satisfied that the dwelling was required for the Landlord’s grandson…. The Tribunal is also satisfied that the intention is a bona fide intention and that the Landlord does hold the required intention’. Clearly, no unlawfulness presents in the landlords’ bona fide requirement of the dwelling currently rented by Ms Dunivya. So the Tenancy Tribunal addressed in effect the subjective and objective dimensions of the matter presenting before them and arrived at a perfectly valid finding that was reached in accordance with law. There is no misapplication of s.34(4) of the Act of 2004 in that.
III. Peaceful and Exclusive Occupation
8
Ms Duniyva contends that the Tenancy Tribunal failed to show regard for that right to peaceful and exclusive occupation of her rented dwelling which is the logical corollary of the obligation on landlords, under s.12(1)(a) of the Act of 2004, to allow ‘ the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling’. This aspect of matters did not receive much of an airing at the oral hearing of the within appeal. However, what the court understands Ms Duniyva to contend in this regard is that service by her landlords of the notice of termination interfered with the right aforesaid. With respect, the court does not see how this could be so: there are six grounds on which a landlord may, under s.34, lawfully terminate a Part 4 tenancy. As the landlords in the within matter have been found to have relied properly on one of the six grounds, it simply cannot follow as a matter of logic or law that service of notice of termination on one of those six grounds could or does interfere with Ms Duniyva’s right to peaceful and exclusive occupation of her rented dwelling.
IV. Bias and Breach of Principles of Natural and Constitutional Justice
9
Ms Duniyva contends that the Tenancy Tribunal’s hearing and determination ‘ were one-sided and biased in favour of the landlord, failing to apply the principles of natural and constitutional justice’, and that she was not allowed properly to cross-examine witnesses. In point of fact, over a 2½ hour period, Ms Duniyva was given a full opportunity to present such evidence as she thought appropriate, to cross-examine all of the landlords’ witnesses, including the landlords’ teenage grandson, and to make all appropriate submissions. There is no bias or breach of the principles of natural and constitutional justice presenting. Nor does it follow from the fact that the Tenancy Tribunal reached conclusions adverse to Ms Duniyva that it was possessed of some bias against her or necessarily acting (in point of fact it did not act) in breach of the principles of natural or constitutional justice. Nor the court notes, given that Ms Duniyva has, with respect, a certain tendency to loquacity, is it the case that a tribunal must continue unendingly with a hearing when all that a party is doing is repeating the same points and/or has patently iterated the points which that party has come to the hearing to make. What is required as a matter of administrative law is fair procedure (which need not be perfect procedure), including a fair hearing (which need not be a perfect or endless hearing). Ms Duniyva’s allegations of bias on the part of, and breach of the principles of natural and constitutional justice by, the Tenancy Tribunal, are respectfully rejected by the court.
V. A Constitutional Right to Accommodation/Housing?
10
Neither in her notice of motion nor in her accompanying affidavit does Ms Dunivya make mention of a constitutional right to accommodation/housing as acting to frustrate the operation of the Act of 2004, as amended. This was a point that arose in submission only and with very little amplification as to what in fact was being contended for. All this being so, the court would confine itself to the observations that (i) there is no express constitutional right to universal provision of housing by the State; and (ii) that is not to say that some qualified, un-enumerated (and as yet unrecognised) constitutional right to accommodation/housing might not at some future point be found by a court to exist as a matter of Irish law, perhaps by reference to the insights to be gleaned from the burgeoning case-law of, and elaboration of principle by, the European Court of Human Rights concerning minimum State obligations in the area of housing rights (see, inter alia, Moldovan v. Romania (2007) 44 EHRR 16, Marzari v. Italy (1999) 28 EHRR CD175, Botta v. Italy (1998) 26 EHRR 241, and Guerra v. Italy (1998) 26 EHRR 357). However, it falls to this Court to decide the within case, not to predict the outcome of some possible future case; and when it comes to this case, there is no “free-wheeling” or qualified constitutional right to accommodation/housing that can be deployed by Ms Dunivya or the court, certainly not without its having been pleaded or the subject of substantive argument, in order to upset the lawful finding of a Tenancy Tribunal reached pursuant to a statute that enjoys the presumption of constitutionality.
VI. Conclusion
11
Ms Duniyva, an elderly lady who has suffered recently from ill-health, has the sincere sympathy of the court that she now faces lawful eviction from the dwelling that she rents. In her closing submissions, Ms Duniyva effectively asked the court to ignore the law and its “technicalities” (as she perceives them) and to do justice (as she considers it to lie). But none of us is above the law; and that includes the judge on the bench. The courts may bring equitable precepts to bear upon the problems that present before them; but the courts are bound by law, and rightly so. Ms Duniyva’s landlords require their premises for occupation by a member of their family; and our elected lawmakers, sensible men and women of the world, have determined in the Act of 2004, as amended, that such affords a good basis on which to evict a sitting tenant. It would be gravely presumptuous of an unelected court and profoundly unjust to Ms Duniyva’s landlords, if the court were now to yield to Ms Duniyva’s supplications and deny to those landlords, on a judicial whim, an entitlement that they enjoy under a comprehensive statutory régime devised by our elected lawmakers.
12
For all of the reasons identified above, the court is coerced as a matter of law into respectfully declining all of the reliefs that Ms Duniyva has sought in the within appeal.
The Residential Tenancies Board v Duniyva
Docket Number: RECORD NO.: 2018/80 CA
Neutral Citation: [2018] IEHC 470
Reported In: [2018] 7 JIC 3127
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Ms. Justice Tara Burns
Jurisdiction of the Court on an application pursuant to s. 124 of the
Residential Tenancies Act, 2004
23
Section 124 of the Act of 2004 provides:-
‘(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).
(2) On such an application and subject to section 125, the Circuit Court shall make an order directing the party concerned (the ‘Respondent’) to comply with the term or terms concerned if it is satisfied that the Respondent has failed to comply with that term or those terms, unless—
(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or
(b) the Respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.
(3) The matters mentioned in subsection (2) are—
(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,
(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,
(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,
(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.
24
Section 124 of the Act of 2004 was considered by Ms. Justice NiRaifeartaigh in Foley v. Johnson (Unreported, High Court, 6th February, 2017) where she stated at p 4 of the judgment:-
‘[A] determination can only be departed from if one of the conditions in (a) or (b) is satisfied, and not for any other reason. These grounds on which an order can be challenged are extremely narrow and would, to lawyers, be broadly familiar as essentially a paraphrase of the tests which would apply in judicial review proceedings.’
25
As can be seen from the terms of s. 124 of the Act of 2004 and as commented on by Ms. Justice NiRaifeartaigh, the grounds upon which a Determination Order can be challenged are extremely narrow. The Court can only set aside a Determination Order if it considers that there are substantial reasons relating to one or more of the matters set out in s.124(3) to not make the Order sought by the Applicant, or the Respondent shows to the satisfaction of the Court that one of the matters specified in s. 124(3) applies in relation to the determination order.
The matters set out in sub-section 3 of section 124 of the Act of 2004
a) Absence of Procedural Fairness in the proceedings leading to the Determination Order
26
In the substantive appeal in this matter brought pursuant to s. 123 of the Act of 2004, Mr Justice Barrett considered the question of Bias and Breach of Principles of Natural and Constitutional Justice on the part of the Tenancy Tribunal as raised by the Respondent. He stated at paragraph 9 of the judgment:-
‘Ms. Duniyva contends that the Tenancy Tribunal’s hearing and determinations were one-sided and biased in favour of the landlord, failing to apply the principles of natural and constitutional justice, and that she was not allowed properly to cross examine witnesses. In point of fact, over a 2 and a half hour period, Ms Duniyva was given a full opportunity to present such evidence as she thought appropriate, to cross examine all of the landlords’ witnesses, including the landlord’s teenage grandson, and to make all appropriate submissions. There is no bias or breach of the principles of natural and constitutional justice presenting. Nor does it follow from the fact that the Tenancy Tribunal reached conclusions adverse to Ms Duniyva that it was possessed of some bias against her or necessarily acting (in point of fact it did not act) in breach of the principles of natural or constitutional justice. Nor the court notes, given that Ms Duniyva has, with respect, a certain tendency to loquacity, is it the case that a tribunal must continue unendingly with a hearing when all that a party is doing is repeating the same points and/or has patently iterated the points which that party has come to the hearing to make. What is required as a matter of administrative law is fair procedures (which need not be perfect procedure), including a fair hearing (which need not be a perfect or endless hearing). Ms. Duniyva’s allegations of bias on the part of, and breach of the principles of natural and constitutional justice by the Tenancy Tribunal, are respectfully rejected by the Court.’
27
While Mr Justice Barrett’s determinations in this regard are not binding on me, I must nonetheless pay significant regard to the findings of a court of equivalent jurisdiction. This is particularly so, in the interest of legal certainty, when those determinations are made in the same case and on the same factual basis. Indeed, while it has not been raised before me by Counsel for the Applicant, an argument may well have been made that the doctrine of Res Judicata applied to this argument made by the Respondent which would have prohibited the Respondent arguing this issue before a Court again.
28
With regard to the Respondent’s complaint of bias, I am of the opinion that there is no evidential basis for this suggestion and I am not satisfied that bias on the part of the Applicant whether real or objective is made out.
29
With regard to the question of whether the Respondent was afforded a fair hearing, the Respondent complains that she was not afforded an adequate opportunity to cross examine the Notice parties grandson. I note that Mr Justice Barrett decided against the Respondent on this issue. In the course of the hearing before me, the Respondent alleged that she had been stopped by the Tenancy Tribunal from asking questions of the landlord’s grandson, specifically regarding the apparent discrepancy between the notified dates of his proposed occupancy at the premises, stated in the Notice of Termination to be a period of 9 months compared to the length of his course of study, namely 4 years.
30
This allegation had not been set out in affidavit by the Respondent. When replying to the Respondent, Counsel for the Applicant objected to the Court having regard to these assertions, indicating that further evidence may have been put on affidavit had this case been properly made out on affidavit by the Respondent.
31
I note that the Respondent states in paragraph 8 of an affidavit which she filed on 8th February, 2018, when taking issue with an assertion in Kathryn Ward’s affidavit to the effect that ‘there was ample evidence that the Notice-Parties required the dwelling’, that ‘[T]here was none since my evidence was suppressed-thus denying me fair procedures.’ I also note in another affidavit, sworn by the Respondent in this matter on the same date, that she states at paragraph 5 that she was not given the opportunity to make full oral submissions.
32
Neither of these averments make the specific allegation which the Respondent made in the course of her submission and in no way could the averments cited above put the Applicant on notice of what the Respondent now alleges so as to alert them to the necessity of filing an additional affidavit if they wanted to controvert the allegation now made.
33
Obviously, I cannot accept the Respondent’s submissions on this issue as evidence in the matter.
34
The assertions which were stated in the course of the Respondent’s submissions should have been put on affidavit in a detailed manner by the Respondent. However, what is clear from the evidence which I can consider, namely the report of the Tenancy Tribunal, is that the Landlord’s grandson gave evidence in the Respondent’s case and that she did ask questions of the grandson. Indeed, the Respondent’s submissions to this court in this regard implicitly accepted that more than one question was asked of him, although she indicated that she had only asked one.
35
I also note with regard to this issue that the Respondent was accompanied at the hearing and I note that the Respondent was not a stranger to the Applicant’s dispute resolution procedures or indeed court applications. Reference is made in the Tenancy Tribunal’s report and in an affidavit sworn by the Respondent on 8th February, 2018 to other dispute resolution references made by her to the Applicant and the fact that there had been a previous High Court case in relation to an attempted termination of the tenancy, the subject matter of these proceedings.
36
With this knowledge together with my experience of the Respondent, who presented her case with vigour, passion and ability, I cannot accept that she was wrongfully silenced at the Tribunal hearing whether it be in evidence or presenting her arguments, as asserted by her in the affidavits which she has filed.
37
Accordingly, having regard to the evidence which I have before me and having regard to the findings of Mr Justice Barrett, already referred to, I am of the view that procedural fairness was complied with at the hearing before the Tenancy Tribunal.
b) A material consideration was not taken account of in the proceedings or account was taken of a consideration that was not material.
38
An issue which the Respondent submits falls under this heading is the issue of the apparent discrepancy between the notified proposed length of stay, by the landlord’s grandson, which was stated as 9 months in the Notice of Termination, and the fact that the course of study which the grandson was attending was four year. The Respondent argues that this apparent discrepancy was a material consideration not taken into account by the Tribunal.
39
I do not see this apparent discrepancy as a material consideration which was not taken account of. On a preliminary note, it is not established that there was in fact a discrepancy between these two independent pieces of information: The Tenancy Tribunal report does not reflect the landlord’s grandson stating that he intended to stay at the premises for the entirety of the course he was engaged in. In the absence of that assertion, a discrepancy does not in fact exist. However, far more importantly is the fact that the Tribunal was clearly aware of this issue. In its ruling, the Tribunal refers to the notification of the proposed time period of the Grandson’s occupation of the premises in the Notice of Termination being from 3rd April 2017 to 31st December, 2017. It is entirely a matter for the tribunal as to how it resolves this issue but clearly the Tribunal was aware of it.
40
A further issue which the Respondent raises is the condition of the premises, asserting that it was so sub-standard, it was incomprehensible that a student, with family home comforts not far away would stay there. Again, having heard evidence on the matter, it is entirely a matter for the tribunal to consider this evidence.
41
In neither respect, am I in a position to find that a material consideration was not taken into account by the Tribunal.
c) A manifestly erroneous decision in relation to a legal issue was made
42
The Respondent claims that the requirements of section 34(4) of the Act of 2004 were not made out as the circumstances of the case did not establish that the Landlord ‘required’ the dwelling for occupation by a member of his family. Again, this is a matter which may well be covered by the doctrine of Res Judicata, however this was not raised by Counsel for the Applicant.
43
Section 34 of the Act of 2004 prohibits a Part 4 tenancy being terminated by the landlord unless ‘[t]he landlord requires the dwelling…for his or her own occupation or for the occupation by a member of his or her family.’
44
This issue was considered and determined by Mr Justice Barrett who stated at paragraph 5 of his judgment:-
‘5. Ms. Duniyva points to the facts that the ground for termination is that the landlord ‘requires the dwelling’ (emphasis added), and suggests that termination of the tenancy must be essential and important rather than just desirable. The court notes that in the Oxford on-line dictionary when it comes to: (1) the verb ‘ require’, the principal definition provided is ‘ need for a particular purpose’; and (2) the verb ‘ need’, the principal definition provided is ‘ require (something) because it is essential or very important rather than just desirable’. Having regard to the just stated definitions, the court considers that the use of the third person singular form of the verb ‘to require’ in para. 4 of the table to s. 34 has the result that a landlord must ‘need’ the dwelling in issue, but has the effect that termination of the tenancy must be essential or very important to him or her rather than just desirable. That need has a subjective and an objective dimension, in the sense that a Tenancy Tribunal would need to look to whether a landlord subjectively requires a dwelling (here the statutory declaration, it seems to the court, would typically be determinative) and also to whether that perceived requirement is a bona fide requirement and not (i) a requirement that a landlord purports to exist but which does not in truth exist, or
(ii) a requirement that is advanced to achieve an unlawful objective, e.g. the perpetration of unlawful discrimination contrary to the equal status act. When it comes to the verb ‘to need’, Ms. Duniyva in her submissions placed some emphasis on the meaning being attributed by Geoghegan J. in Equality Authority v. Portmarnock Golf Club & Ors. [2009] IESC 73, to the noun ‘needs’ in s. 9(1)(a) of the Equal Status Act, 2000. With respect, the court does not see that the meaning afforded by the Supreme Court to a particular noun in a statute that is of no relevance to the within application has any bearing on the meaning to be given by this Court to an unrelated verb (‘to need’) which appears in the principal definition of yet another verb (‘to require’) that is employed in an entirely different statute.
6. Here the landlords want Ms. Duniyva’s tenancy of her rented dwelling terminated in order that a grandson of theirs who is in college and desirous of independence from his parents, can live closer to where he studies and does not have to be taking two long bus rides to and from college each day, or (worse still) be cycling to or from college on dark mornings, and still darker evenings.
7. The court is not required in the within appeal to determine whether there is in the statutory declaration furnished by the landlord, and/or the broader facts presenting, sufficient to justify the requirements of the Act of 2004, as touched upon above. This being an appeal under s. 123(3) of the Act of 2004, the court is concerned solely with points of law. Turning to this aspect of matters, is it the case that the Tenancy Tribunal could not, acting in accordance with law, have concluded that the landlords to Ms. Duniyva required the dwelling and were bona fide in seeking to terminate the tenancy on the grounds specified? In this regard the court notes the averment by the Chairman of the relevant Tenancy Tribunal that ‘ the Tribunal took into account the evidence and materials before it namely the statutory declaration sworn by the landlord and the direct evidence of the landlord’s grandson to the effect that he required the dwelling for his own occupation’. Moreover, in the reasons for its decision, the Tenancy Tribunal stated inter alia, in its Report, para. 7 that ‘ the Tribunal is satisfied that the dwelling is required for the landlord’s grandson … the Tribunal is also satisfied that the intention is a bona fide intention and that the landlord does hold the required intention’. Clearly no unlawfulness presents in the landlord’s bona fide requirement of the dwelling currently rented by Ms. Duniyva. So the Tenancy Tribunal addressed in effect the subjective and objective dimensions of the matter presenting before them and arrived at a perfectly valid finding that was reached in accordance with law. There is no misapplication of s. 34(4) of the Act of 2004 in that.’
45
Mr Justice Barrett has carefully analysed this issue and I see no reason to come to a different conclusion. I accordingly am of the view that a manifestly erroneous decision in relation to a legal issue has not been established by the Respondent.
d) A manifestly erroneous decision was made by the Tribunal on the evidence
46
I am of the opinion that there is no basis for a claim that the decision made by the Tribunal on the evidence, and adopted by the Applicant, is manifestly erroneous. Nothing which has been submitted by the Respondent could establish this to be the case.
Retrospectivity
47
On a number of occasions, in the course of her argument to me, the Respondent raised the issue that the Notice of Termination was now spent, as the time period referred to therein in respect of when the Landlord’s grandson was to reside at the premises, had now passed. This is an issue which I cannot engage in. I have no jurisdiction in relation to same having regard to the s. 124 application presently before me. My sole determination in this matter is whether the Determination Order should be enforced or not and the only issues which I can consider in determining this question are those set out in s. 124(3) of the Act of 2004 which I have already considered.
Conclusion
48
Accordingly, I am of the view that the matters which are set out in sub-section 3 of s. 124 of the Act of 2004, which would permit me to refuse to grant the relief sought, have not been established. That being so, I have no jurisdiction to do anything other than order the enforcement of the Determination Notice. I therefore grant an Order in terms of the Notice of Motion herein.
Halbherr v Residential Tenancies Board
Neutral Citation: [2018] IEHC 595
Reported In: [2018] 2 JIC 1201
Docket Number: [2017 No. 238 MCA]
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice MeenanJUDGMENT of Mr. Justice Meenan delivered on the 12th day of February, 2018
Background
1
In these proceedings the appellant, appearing in person, seeks to appeal a determination order made by the respondent (‘the Board’) on 14th July, 2017. The notice of motion grounding the appeal is dated 14th August, 2017 and is supported by an affidavit of the appellant sworn 8th August, 2017. This matter comes before the Court by way of a preliminary issue to determine if the appeal has been brought within the time allowed by the provisions of the Residential Tenancies Act 2004 (the Act of 2004).
Relevant Dates
(i) The decision of the Board is dated 14th July, 2017.
(ii) The determination of the Board was issued to the appellant by letter dated 18th July, 2017.
(iii) An affidavit on behalf of the appellant was filed in the Central Office on 8th August, 2017.
(iv) A notice of motion grounding the appeal was filed in the Central Office on 14th August, 2017. (It was not made clear how and in what circumstances the affidavit was filed in advance of the notice of motion).
The Submission of the Residential Tenancies Board
2
Ms. Una Cassidy, B.L., on behalf of the Board, relies on the provisions of s. 123 of the Act of 2004. Section 123 provides:-
‘2. A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).
…
8. In this section ‘relevant period’ means the period of 21 days beginning on the date that the determination order concerned is issued to the parties.’
3
Counsel for the Board submits that the 21 days began on 18th July, 2017, the date that the Board’s determination was issued to the appellant.
4
In answer to an argument that, in circumstances where the determination of the Board was posted, time did not begin to run until the determination had been delivered, reliance was placed on s. 25 of the Interpretation Act 2005 which provides:-
’25. Where an enactment authorises or requires a document to be served by post, by using the word ‘serve’, ‘give’, ‘deliver’, ‘send’ or any other word or expression, the service of the document may be effected by properly addressing, prepaying (where required) and posting a letter containing the document, and in that case the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.’
5
As a determination is ‘issued’ rather than ‘served’ or ‘given’, or expressions to that effect, it must follow, in accordance with s. 123(8) of the Act of 2004, that time started to run on 18th July, 2017 and ended 7th August, 2017.
6
The Act of 2004 contains no provision whereby a court could extend the time for the purposes of appealing a determination.
7
The second named respondent, Mr. Stephen McCann, supported the application of the Board.
8
The appellant submits that although the determination may have issued on 18th July, 2017, he did not have notice until some days after. Therefore, he maintains that the 21 days did not begin to run until he received the determination.
Conclusion
9
I accept the submissions made on behalf of the Board. It is clear that s. 123(8) of the Act of 2004 refers to the date that the determination ‘issued’, there is no reference to a determination having been ‘served’, or the use of some other term, as would bring s. 25 of the Interpretation Act 2005 into play.
10
In dealing with the time of 21 days, both the first and the last date are included. This would mean that the time for appeal expired on 7th August, 2017. In accordance with O. 84C of the Rules of the Superior Courts, this appeal commenced by way of an originating notice of motion. This is dated 14th, August, 2017 and is clearly out of time. Even allowing the commencement date of the appeal as being the date the affidavit was filed in the Central Office, 8th August, 2017, the appeal is still out of time.
11
It follows from the above that the appeal was not brought within the time provided for by the Act of 2004 and there is no provision in the said Act for extending time. Therefore, I will dismiss the appeal.