AN APARTMENT owner is claiming he is entitled to be treated in the same way as a tenant when it comes to paying service charges, the High Court has heard.
Gary Mallon claims he has a 500-year lease and must only pay a nominal rent of five cent a year to the apartment complex management company.
Mr Mallon bought his apartment at Elmfield Court, Ninth Lock Road, Clondalkin, Dublin, for €200,000 under a legal contract including a lease arrangement known as “peppercorn rent” in which a nominal rent of five cent is paid for 500 years.
As owner of the apartment, he would normally be expected to pay the service charge if he had the apartment rented out to a tenant. However, as owner occupier with the peppercorn lease, he claims he is entitled to be treated as a tenant and is covered by the dispute resolution service of the Private Residential Tenancies Board (PRTB).
The management company got a District Court order requiring Mr Mallon to pay €1,862 in service charges and he appealed that order to the Circuit Court arguing the correct forum for dealing with the matter was the PRTB.
Circuit Court Judge Jacqueline Linnane found Mr Mallon was not excluded from the PRTB resolution service and also ruled such long lease arrangements were not specifically excluded from the Residential Tenancies Act 2004 under which the PRTB operates.
The PRTB has now asked the High Court for an order quashing Judge Linnane’s decision claiming, if such long leases fell within the terms of the legislation, the results would be absurd.
PRTB chairman Tom Dunne said in an affidavit the decision effectively meant the management company would have to provide maintenance and repairs for the interior of Mr Mallon’s apartment as well as to the exterior common area. By the same token, the management company would be entitled, as a landlord would, to carry out checks on the apartment to confirm who was actually living there, Mr Dunne said.
A “further absurdity” arose whereby the management company would be entitled to carry out a rent review in which the five cent a year could be raised to market levels, Mr Dunne said.
Mr Justice Michael Peart granted Gerard Hogan SC leave to bring judicial review proceedings aimed at quashing Judge Linnane’s decision with the management company and Mr Mallon as notice parties. He made the case returnable to next month.