Woman loses challenge over termination of 15-year tenancy in Dublin flat

Court upholds RTB tribunal ruling that notice to leave Ballsbridge property was valid

A woman has lost her High Court bid to overturn a notice terminating her tenancy of some 15 years in a Dublin 4 flat.

Aldona Stulpinaite, a childminder, had lived since September 2005 in a flat at 34 Elgin Road, Ballsbridge, under what Mr Justice Anthony Barr described as an "oral" tenancy from week to week. She was not given a rent book and payment of rent, currently €155 weekly, was in a "somewhat unusual manner" as she had to put the rent into a box cemented to the wall of the property.

She challenged a December 2019 decision of a tenancy tribunal of the Residential Tenancies Board that a termination notice served on her in March 2019 by solicitors for her landlord, Michael Whelan, requiring her to leave in November 2019, was valid.

The stated reason for termination was the landlord intended to sell his interest in the building within three months of termination of the tenancy.

Mr Whelan did not give evidence to the tribunal of his intention to sell the property at the date of service of that notice but his letting agent gave evidence to establish Mr Whelan had such intention.

A previous termination notice of March 2018, which stated Mr Whelan intended to carry out refurbishment works, was successfully challenged by Ms Stulpinaite before an adjudicator who declared that notice invalid.

In her High Court challenge to the March 2019 notice, Ms Stulpinaite argued, inter alia, the tribunal ought to have secured the attendance of Mr Whelan before it and she was deprived of the right to cross-examine him. There was no evidence before the tribunal which would have allowed it find Mr Whelan had intent to sell in March 2019, she argued.

In his judgment, Mr Justice Barr noted Mr Whelan owned two large properties at Elgin Road, numbers 32 and 34, which housed about 30 tenants in 2018. As a result of the first termination notice, about 25 tenants had left.

The key issue before the tribunal concerning the March 2019 notice was whether the stated intention of Mr Whelan to sell was in fact bona fide held by him on that date.

Ms Stulpinaite argued it was reasonable to infer the stated intention was not bona fide while Mr Whelan’s letting agent gave evidence of being instructed concerning a sale and of steps taken in that regard. The agent provided supporting documents, including sale advertisements in media property sections and an email advising both properties had gone “sale agreed” subject to vacant possession.

There was “overwhelming” evidence before the tribunal of intention by Mr Whelan to sell within the requisite period at the time the March 2019 termination notice was served and in the months thereafter, the judge found. Ms Stulpinaite had not contested that evidence, he added.

He had sympathy with the tenants as it seemed “incongruous”, where the sole issue before the tribunal was whether the landlord intended to sell, he did not give evidence himself but rather through his letting agent and documents.

The tribunal had said, because it had no issue with the evidence put before it concerning intent to sell, it had not called Mr Whelan to give evidence.

Ms Stulpinaite had not sought a subpoena from the tribunal to ensure his attendance or asked it to call him as a witness, with the effect she could have cross-examined him, the judge said. He could not find her right to cross-examine was refused because she had not sought the right.

He was satisfied the tribunal acted within the law and did not breach the requirements of natural and constitutional justice in how it conducted its hearing.

Based on those and other findings, he dismissed the challenge.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

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