Recent Judgements at the High Court on Tenancy Law

GGTrek

They are not so recent but there are some sections that are quite relevant.
Marwaha -v- Residential Tenancies Board:
http://www.courts.ie/Judgments.nsf/0/E3E38A554166CA9A80257FE70051048B

The important points defined are not with regard to the appeal that crashed miserably (even though it shows how pro-tenant the current legislation is when a non-paying tenant is allowed to reach the High Court, costing the taxpayer a fortune and getting off with only paying the a few hundred euros of High Court fees as litigant in person and continuing not paying the rent!!! He even had the audacity of appealing the High Court judgement to the Court of Appeals where finally his abuse of the legal appeal system was stopped without granting any hearing) but it defined clearly (unlike the badly written RTA) on what points appeals of RTB Tribunal determinations can be taken to the high court:

"F. An Attempted Synthesis of Principle
13. What principles can be drawn from the foregoing as to the court’s role in the within appeal? Four key principles can perhaps be drawn from the aboveconsidered
case-law:
(1) the court is being asked to consider whether the Tenancy Tribunal erred as a matter of law (a) in its determination, and/or (b) its process of determination;
(2) the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them;
(3) as to mixed questions of fact and law, the court (a) may reverse the Tenancy Tribunal on its interpretation of documents; (b) can set aside the Tenancy Tribunal determination on grounds of misdirection in law or mistake in reasoning, if the conclusions reached by the Tenancy Tribunal on the primary
facts before it could not reasonably be drawn; (c) must set aside the Tenancy Tribunal determination, if its conclusions show that it was wrong in some view of
the law adopted by it.
(4) even if there is no mistake in law or misinterpretation of documents on the part of the Tenancy Tribunal, the court can nonetheless set aside the Tribunal’s
determination where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn"

In addition justice Barret says that an appeal from RTB Tribunal is not akin to a judicial review, but more aking to an "appeal by way of case stated" https://en.wikipedia.org/wiki/Case_stated

Another important point that several inexperienced posters in this forum make: they would like to challenge the serving of the notice (I recently answered a poster about a similar point). The High Court judgement has confirmed that this is a very bad tactic, since the RTA puts the onus on the receiver to prove that they have not received the notice. People should stop trying to be "smart" and act in good faith, they have received a notice, if they think it is not valid, they challenge its content, not the serving.

"E. Absence of Evidence of Service?
20. Under s.6(1)(b) of the Act of 2004, notice of termination may be served by leaving it at the address at which the addressee ordinarily resides. As a matter of prudence, a landlord might wish to send a notice of termination by post and retain a certificate of postage. But there is no requirement that this be done. The issue of service was raised before the Tenancy Tribunal; it accepted the evidence of the landlord’s agent that good service of notice had been effected under s.6(1)(b). This it was entitled to do; there was a sound evidential basis for it to do so;and there is no error of any nature arising in this regard.
F. No Witness to Service?
21. See the court’s answer to E."

And finally stick to the appelant and the RTB was provided by the court since they did not involve the landlord in the proceedings (probably due to sloppy procedure followed by litigant in person), the court clearly expressed the view that in such case since the appellant lost on all his points, this did not affect the landlord, but should some points go in favour of the appelant, maybe this would not be accepted by the court:

"Part 4: Joining the Landlord
24. Before proceeding to its final conclusion, the court would note that it appears contrived and contrary to natural justice that the landlord who owns the property in which a tenant dwells, and who has a direct interest in the outcome of an appeal such as this, should be reduced, as here, to the status of uninvolved spectator in the well of the courtroom while, but a few feet away, the Residential Tenancies Board and the tenant joust before the judge. As the court has, in this case, reached a conclusion that is adverse to Mr Marwaha, and doubtless welcome to the landlord, the fact that the latter is not a notice-party has no practical consequence here. Nor has the failure to join the landlord had any bearing on the court’s reasoning. Even so, it is not appropriate that the landlord was not joined to these proceedings."

The other case is Snochowski -v- Private Residential Tenancies Board & anor (this time landlord was involved in the proceedings)
http://www.courts.ie/Judgments.nsf/0/234A0BB44274EC00802580EB003C7253
http://www.courts.ie/Judgments.nsf/0/9AA8D3CD97F94733802581090046EA79

A disgruntled tenant who wanted more money lost most of the money award of first instance, but the important point here is that even a landlord with unregistered tenancy has the right to appeal to the Tenancy Tribunal. This is so important that the High Court conceded a second judgment to decide on the costs (quite technical, but basically costs cannot be sought at the High Court, only District Court has jurisdiction). The important legal point is that the landlord of an unregistered tenancy cannot bring its own case to the RTB, but he/she can appeal any adjudication made:

"17. It appears to the court that in this case the tenant referred the dispute to the Tribunal and the Board. The Board responded by providing for an adjudication hearing which was arranged for the 21st December 2015. There are some issues as to whether or not the second named respondent was aware of this however, on receiving the result of the adjudication the second named respondent having received that adjudication report on the 4th January indicated their intention to appeal the case on the 14th January and the appellant was notified of the hearing before the Tenancy Tribunal.
18. It would not have been open to the second named respondent to refer the matter to the Board as it was not registered. However, the court is satisfied that the second named respondent was entitled to appeal the adjudicators report as saying that there is no mention in s. 100 of the Act of a referral it is purely an appeal. The court accepts the submission of the first named respondent that the Board must act with due regard to fair procedures and that as well as the appellant, the second named respondent is entitled to fair procedures.
19. It is quite clear to the court that the second named respondent was not entitled to refer the dispute to the Board because the tenancy had not been registered. However, there was no qualification of the right to appeal under s. 100 of the 2004 Act and the appeal to the Tribunal is unqualified.
20. The court also accepts that the decision makers of the PTRB are required to act in accordance with natural and constitutional justice and the second named respondent is entitled to be heard by way of a right of appeal to the Tenancy Tribunal."

I hope this is not too technical, if the moderators think it should be moved to the legal forum, please do so.

LuckyLloyd

Very interesting, cheers.