THE OWNER of an apartment held under a long lease is entitled to have a dispute over service charges heard by the Private Residential Tenancies Board, the High Court has ruled.
However, the judgment by Mr Justice Declan Budd upholding an earlier Circuit Court decision by Judge Jacqueline Linnane is likely only to affect long leaseholders who have already brought proceedings before the board.
This is because amending laws were enacted last year to exclude such long leaseholders from access to the board.
The case arose after Gary Mallon, owner of an apartment at Elmfield Court, Clondalkin, Dublin, was sued by S L Management Company, on behalf of the landlord, over alleged arrears of service charges. Mr Mallon bought the apartment and holds it for 500 years from November 2002 under a yearly rent of 25 cent.
The District Court in April 2008 ordered Mr Mallon to pay €1,862 in service charges. He appealed to the Circuit Court which overturned the District Court order.
Judge Linnane ruled that a dispute relating to the recovery of service charges concerning an apartment occupied by an owner under a long lease, the subject matter of an appeal to the Circuit Court from the District Court fell outside the remit of the courts.
Judge Linnane found apartment owners holding long leases were tenants and were not excluded from the provisions of the Residential Tenancies Act 2004, meaning disputes involving them could be dealt with by the board, except in certain circumstances when they should be decided by a court. The exceptional circumstances related to disputes involving damages of more than €20,000 or arrears of more than €60,000 for rent or other charges.
Under the Residential Tenants Act, the Private Residential Tenancies Board was established to deal with disputes between landlords and tenants of certain dwellings.
The board brought a High Court case seeking to compel Judge Linnane to determine the dispute between Mr Mallon and the company.
It argued that the Oireachtas never intended the Act to cater for dwellings held under long leases.
Mr Justice Budd agreed yesterday with Judge Linnane’s view that if the Oireachtas intended to exclude apartments held under long leases, then it should have expressly done so.