Man who claimed notice to terminate tenancy was invalid loses High court case

Case over tenancy of Dublin apartment went to Residential Tenancies Board before it was appealed to High Court

 

A man has lost his High Court appeal over a decision that his tenancy on a Co Dublin apartment was validly terminated by his landlord.

Patrick Kelly brought the appeal over a notice of termination sent to him in December 2016, with an expiry date in April 2017, concerning his tenancy of an apartment at Eden Way, Main Street, Rathcoole.

His tenancy began in October 2012 and there were three successive one year letting agreements before the notice of termination was sent by his landlord, Eugene O’Reilly.

Mr Kelly applied to the Residential Tenancies Board (RTB) for dispute resolution. He contended the termination notice did not comply with various provisions of the Residential Tenancies Act 2004, including to give reasons for termination.

In March 2017, following an adjudication hearing, it was determined the notice was valid and that decision was upheld on further appeal to the Board in May 2017.

Mr Kelly then appealed to the High Court over the RTB decision. In a reserved judgment on Tuesday, Ms Justice Miriam O’Regan dismissed his appeal.

The 2004 Act is a long Act and is “at times somewhat difficult to follow”, the judge observed. Various provisions of the Act were relevant to this case, including Section 28, she said. It provides, where a person has, under a tenancy, been in occupation of a dwelling for a continuous period of six months, then the period of entitlement to occupy will last four years.

The occupation, as was the case here, can be under a series of two or more tenancies, the judge said. Such a tenancy can be terminated under Part 4 of the Act, including via a notice served before the end of the relevant four year period.

In this case, the notice of termination was given in accordance with the 2004 Act, she ruled. There was no failure to have regard to the fact the four year periods provided for by the legislation are rolling in nature, she held.

While the Act does give security for four terms, and possibly successive four year terms, it is clear that, at the end of a four year term, a landlord is entitled to terminate if the valid notice is served. A reason for termination must be given under certain provisions but those did not apply to this case, she said.

While the judge accepted there was a “clumsy” statement in the RTB report rejecting Mr Kelly’s complaint, she said the report’s finding there was no requirement to provide a reason for terminating this tenancy contained no error of law.

The inclusion of an incorrect reason, or no reason at all, in the notice of termination was not enough to invalidate it, she added. What occurred here was a new tenancy and the commencement date and terms and provisions were fixed by statute having regard to the previous arrangement between the parties, she ruled.

For all those reasons, Mr Kelly’s appeal must fail. Mr Kelly was not in court and the judge heard he had previously left the apartment and surrendered the keys.