Property agent appeals in legal doubt over ‘disqualified’ chairman
Chairman of Property Services Appeal Board Anthony Ensor ceased practising as solicitor
Mr Justice Peter Kelly said there ‘must be considerable legal doubt over the many decisions in which the disqualified chairperson participated.’ Photograph: Nick Bradshaw
Some 40 appeals before a State board dealing with complaints against property agents are in doubt because its chairman at the time was disqualified from doing so, the president of the High Court said.
The Department of Justice-appointed Property Services Appeal Board is required by law to have a practising barrister or solicitor as its chair.
However, Mr Justice Peter Kelly said in some 40 appeals dealt with by the board up to November 2019, the chairperson was Anthony Ensor, who had ceased practising as a solicitor in 2018.
There “must be considerable legal doubt over the many decisions in which the disqualified chairperson participated,” he said. He called for a review of the functioning of the board.
He made the comments when he quashed its award of €5,000 compensation to a man who lost a land purchase deposit when an unlicensed agent acting for him went out of business.
The judge said the “curious fact” that this case and around 40 others had been dealt with by a five-member board whose chairperson had ceased to practise as a solicitor in 2018 had only emerged a week before the High Court case began.
Mr Ensor continued to act as chair until 2019 and the other members of the board were apparently unaware of this, the judge said.
Some 70 cases in all stand adjourned because of the legal issue raised in this case, he said.
The judge said he had not been asked in the case before him on the validity of the board’s decision notwithstanding the “manifest defects” in relation to the status of the chairperson. He was asked to deal with it on a point of law and was doing so with some misgivings.
He had been asked by the Property Services Regulatory Authority (PRSA), which governs real-estate sale and rental practices, to decide whether an award of €5,000 by the appeals board to Monaghan man Thady Kelly could stand, given the agent involved was not licensed at the time.
Mr Kelly paid €5,000 to Edward Paul Nugent Ltd auctioneers in February 2018, as a ten per cent deposit for the purchase of lands in Castleblayney, Co Monaghan.
A month later, Nugent went into liquidation.
Nugent had previously been registered with the PSRA. But by February 2017, its licence had expired and the PRSA told the firm it could no longer provide property services until it gets a new licence.
However, it continued to provide property services. Mr Kelly said the business was open every day and advertisements were placed in local papers and property websites. He claimed the PRSA failed to take appropriate action against Nugent over its unlicensed activity.
He brought a claim for compensation for the €5,000 against the PRSA, which found it did not have the jurisdiction, under the Property Services (Regulation) Act of 2012, to award compensation where the agent involved was not licensed.
Mr Kelly appealed the decision to the Property Services Appeal Board.
The appeal board awarded him €5,000, saying it was exercising its discretion under the Section 78 of the 2012 Act to do so.
However, Mr Justice Kelly said the relevant section of the Act did not confer a discretion to make a payment from the Property Services Compensation Fund.
The Nugent firm was a former licensee and the compensation provisions did not apply. He therefore set aside the decision of the appeal board.
The judge said the PRSA, in its arguments, said the board’s decision was a valid one but the award could not be made.
While Mr Kelly was the respondent in the High Court, he did not participate in the appeal but filed an affidavit disagreeing with the PRSA position.
The judge said the appeal board had misconstrued the 2012 Act and was wrong in law. It had also not given reasons for its decision which it was required to do.