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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Pszonka v Residential Tenancies Board (Approved) [2025] IEHC 291 (23 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC291.html
Cite as: [2025] IEHC 291

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THE HIGH COURT

2025 IEHC 291

RECORD NO: 2024/179/MCA

BETWEEN

 

ROMAN PSZONKA

 

APPELLANT

 

AND

 

THE RESIDENTIAL TENANCIES BOARD

 

RESPONDENT

 

AND

 

DAVID WHELAN

 

LANDLORD

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 23rd of May, 2025.

INTRODUCTION

1.           In the within proceedings, the Tenant seeks to appeal a Determination Order made by the Residential Tenancies Board (hereinafter "the RTB") on the 13th of March, 2024 ("the Determination Order") pursuant to  s. 123(3) of the Residential Tenancies Act, 2004 (as amended) (hereinafter "the 2004 Act"). The appeal is on a point of law.

 

2.           The Determination Order concerns a property in Co. Dublin (hereinafter "the Dwelling"). The Determination Order determined that a Notice of Termination served by the Landlord ("the Landlord") on the 30th of December, 2022, to be valid and directed the Tenant to vacate the Dwelling within 21 days of the date of issue of the Determination Order.

 

3.           At the core of the arguments before me and central to the decision of the Tenancy Tribunal (hereinafter "the Tribunal"), was the question of whether the Landlord (Notice Party to these proceedings) served a valid Notice of Termination and in particular whether the Landlord was entitled to rely on ground 3 of the Table to s. 34(a) of the 2004 Act, which permits a landlord to terminate a tenancy on the grounds that he/she intends to enter into an enforceable contract for sale within nine months of termination of the tenancy.

 

4.           Although the Landlord was present in Court for the duration of the hearing before me, he did not participate.  In considering this appeal on a point of law I have been assisted, however, by the Landlord's evidence to the Adjudicator and the Tribunal and his written submissions and correspondence, all of which were available to me on the Affidavit evidence on this appeal. 

 

BACKGROUND

5.           It is common case that the tenancy which is at the heart of the within proceedings commenced on the 7th of December, 2018.

 

6.           By letter dated the 30th of December, 2022, the Landlord served a Notice of Termination.  In his cover letter, the Landlord stated:

 

 

"It comes with great regret and a heavy heart that I must inform you that given recent changes in my family's personal circumstances that we have no choice but to sell our property at 82 Woodford, Brewery Road, Stillorgan, Co. Dublin A94 FY51 ("the rental property") at the earliest opportunity. As such, please find enclosed

• the formal Termination Notice as prescribed by the Residential Tenancy Board ("RTB"). • the Statutory Declaration for Landlord intending to sell the dwelling. A copy of the aforementioned documents shall be sent to the RTB via email1 later today.

The formal Termination Date within the attached notice is Friday, 30 June 2023. However, should you identify a suitable tenancy elsewhere and wish to vacate the property at an earlier date please let me know. I would like to thank you for taking good care of the property during your tenancy and I wish you all the best for the future."

 

7.           The Notice of Termination set out the reason for termination as follows:

 

"The reason for the termination of the tenancy is because the landlord intends, within 9 months after the termination date, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his/her interest in the dwelling or the property containing the dwelling (the "agreement to sell")."

 

8.           The Notice also referred to the requirement on the Landlord to offer the opportunity to the Tenant to re-occupy the dwelling if the Landlord does not enter into the agreement to sell. The Tenant was advised that if he wished to dispute the Notice of Termination, any issue as to the validity of the Notice of Termination or the right of the Landlord to serve it, must be referred to the RTB under Part 6 of the 2004 Act within 28 days from the date of receipt of it or where there is no breach of tenancy obligations, within 90 days from the date of receipt of it.  Suggested dates for inspection in June, 2023, were given and the Tenant was requested to confirm a date and time convenient for him.

 

9.           Even though a Notice of Termination and accompanying Statutory Declaration was served on the Tenant on the 30th of December, 2022 and the Tenant did not dispute that he had received them, the Tenant remains in occupation.  He did not refer a dispute challenging the validity of the Notice of Termination within the prescribed time periods but raises this as a defence to the Landlord's overholding claim in these proceedings.

 

10.       Following the service of the Notice of Termination, the Landlord corresponded with the Tenant by text and email in an endeavour to agree access to the house for a valuer/estate agent inspection and for Landlord inspection.  The Tenant did not agree to facilitate same.  The Landlord also sent on the details of other properties available in circumstances where the Tenant required alternative accommodation but the Tenant did not respond to queries from the Landlord in relation to his efforts to find somewhere else to live.

 

11.       On the 29th of June, 2023, the Landlord made an application to the RTB pursuant to s. 78 of the 2004 Act.  His complaint related to overholding by the Tenant following the service of a valid Notice of Termination.

 

12.       Even after the expiry of the notice period and the referral of a complaint to the RTB, the Tenant's attitude to the erection of a sign at the property was that it would be a breach of the Tenant's right to enjoy peaceful and exclusive occupation of the Property.  He stated in an email on the 11th of July, 2023, that any sign would be removed and the breach reported to the RTB.

 

13.       The RTB arranged for an Adjudication hearing to be convened and by email dated 10th of October, 2023, the parties were notified that an Adjudication hearing would take place on the 27th of October, 2023, to determine the dispute. Along with this email, the Board also furnished the Tenant with a copy of the Board's "Guide to Evidence" and its "Guide to virtual hearings."

 

14.       An Adjudication hearing took place as scheduled. Following the hearing, the Adjudicator furnished the RTB with an Adjudication report, which included the Adjudicator's determination of the dispute. Under cover of a letter dated 22nd of November, 2023, the Adjudicator's report issued to the parties to the dispute.  In his report, the Adjudicator summarised the respective positions of the parties very succinctly.  As regards the Tenant's evidence the Adjudicator noted as follows:

 

 

"The dispute was served on the Board before the Respondent was overholding the dwelling.

The dispute incorrectly names the Respondent as Roman Pzonka rather than Roman Pszonka.

In September 2022, the Applicant told the Respondent that he had no intention to sell the dwelling. The Respondent does not believe the notice is valid.

The Respondent has sent 90 applications for other tenancies and has gone to 20 viewings. The Respondent has tried to act in goodwill.

The Applicant has made unannounced visits to the dwelling. These have included sending a gardener to the dwelling in and around 24th April 2023. On 27th June 2023, the Applicant attended the dwelling without notice. On 28th August 2023, the Applicant attended again. The Respondent told the Applicant not to attend without notice but the Applicant replied that he would come whenever he wanted and would leave his car there. On 24th September 2023, the Applicant visited again. He put his foot in the door when the Respondent tried to close the door. The Applicant forced daft to take down advertisements for paying guests in the dwelling. The Applicant knew that the Respondent needs these guests to assist paying the rent. The Respondent has been penalised by the Applicant."

 

15.       Noting the Landlord's response, the Adjudicator recorded:

 

"The Applicant Landlord did say in September 2022 that he did not intend to sell the dwelling. The Applicant's personal situation has changed. The Applicant now needs to sell the dwelling. No indefinite tenancy was created.

The Applicant did attend at the dwelling to inquire when the Respondent would be moving out. Some of the exchanges were heated.

The Respondent advertised the dwelling to be available for a year when the tenancy had been terminated. The Respondent's permission to have sub-tenants was withdrawn by the Applicant. Clause 3.19 of the tenancy agreement prevents paying guests or subtenancies being created without the permission of the Applicant."

 

16.       The Adjudicator determined as follows:

 

"In the matter of David Whelan [Applicant Landlord] and Roman Pzonka [Respondent Tenant], the Residential Tenancies Board, in accordance with Section 97 of the Residential Tenancies Act, 2004, as amended, determines that:

1. The Notice of Termination with a date of service of 30th December 2022, served by the Applicant Landlord on the Respondent Tenant, in respect of the tenancy of the dwelling at 82 Woodford, Brewery Road, Stillorgan, Dublin, A94FY51, is valid.

2. The Respondent Tenant and any other persons residing in the above dwelling shall vacate and give up possession of the above dwelling within 28 days of the date of issue of the Determination Order.

3. The Respondent Tenant shall also pay any further rent outstanding from 27th October 2023, being the date of the Adjudication Hearing, at the rate of €4,110 per month or proportionate part thereof at the rate of €135.12 per day, unless lawfully varied, and any other charges as provided for under the terms of the tenancy agreement for each month or part thereof, until such time as the above dwelling is vacated by the Respondent Tenant and any other persons residing therein.

4. The Applicant Landlord shall refund the security deposit of €3,750 to the Respondent Tenant, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act."

 

17.       The letter communicating the Adjudicator's determination advised the parties that they had 10 working days to appeal the determination to a Tribunal pursuant to s. 100 of the 2004 Act.

 

18.       By Appeal Form received by the Board on the 4th of December, 2023, the Tenant sought to appeal the determination of the Adjudicator.  Within the Appeal Form, the Tenant requested that the hearing of the appeal be held in person.  In the ordinary course, Tribunal hearings take place virtually unless the parties request otherwise.

 

19.       A Tribunal was constituted to deal with the Landlord's appeal.  By email dated the 8th of January, 2024, the Board notified the Tenant that a hearing would take place on the 6th of February, 2024.  The email also furnished the parties with the Board's "Guide to Evidence", its "Guide to virtual hearings", and the Tribunal's Procedures.

 

20.       In light of the Tenant's request, the Tribunal was set up to be an in-person hearing. The email also attached the Case Files, which included all the documents that were before the Adjudicator together with the Appeal Form and any additional documents that were submitted by the parties for the appeal.  In advance of a hearing, parties to a dispute may submit additional evidence for consideration by the Tribunal and this evidence is then furnished to the parties for consideration in advance of the hearing.

 

21.       By email dated the 8th of January, 2024, the Landlord requested attendance virtually at the Tribunal. By email dated the 31st of January, 2024, which was acknowledged by the Tenant, the RTB confirmed that the Landlord would be in attendance remotely and further, due to health reasons, one of the Tribunal members could not attend in person.  As such, the RTB arranged for the Tribunal hearing to take place on a hybrid basis.  As set out in the Guide to virtual hearings, hybrid hearings are conducted via the Microsoft Teams platform.

 

22.       The matter came before the Tribunal for appeal hearing on the 6th of February, 2024.  A transcript of the hearing was available to me on the hearing of this appeal (including an updated, corrected version following a query with a first version).  The Tribunal decision also contained a full summary of the evidence given and submissions made by both the Tenant and the Landlord as considered relevant by the Tribunal to its decision.

 

23.       As apparent from the transcript of the hearing, the independence of the Tribunal from the RTB was addressed at the outset.  

 

24.       As set out in the Tribunal decision, at the hearing the Tenant stated that he applied for an in person hearing and he expressed disappointment that the Landlord was not present in person. The Tenant submitted that he wished to make a formal objection to the matter proceeding based on the Landlord being able to engage on the remote platform while he was present in person.  The Tribunal informed the Tenant that it had no role in setting up the hearings, noting that the hearing had been set up as a hybrid hearing.  He was advised that hearings frequently proceed remotely with no issues but that if at any point he felt disadvantaged during the hearing because it was proceeding as a hybrid hearing, he could bring this to the Tribunal's attention.

 

25.       The Tenant then stated that he had asked the Case Officer for confirmation of the registration of the tenancy.  The Tribunal reminded the Tenant that if he had a complaint about registration, this was a matter to be raised with the RTB, however, it was indicated that the Tenant could raise it with the Landlord during the hearing.  The Tenant acknowledged that the tenancy was then currently registered but stated that it had not been for a period.  The Tenant referred to s. 83 of the 2004 Act which precludes the RTB from dealing with a dispute referred by a landlord in relation to an unregistered tenancy.  The Tribunal reiterated that enforcement of registration was a matter for the RTB, not the Tribunal.

 

26.       The Tenant referred to the fact that the Landlord submitted the dispute application on the 29th of June, 2023, whereas the date for overholding ran from the 1st of July, 2023, as the termination date specified had been the 30th of June, 2023. In those circumstances, the Tenant maintained that the application was premature, referring to s. 78 of the 2004 Act to support this contention.

 

27.       The Tenant also pointed out that his name was spelt incorrectly because his surname, Pszonka, was missing the 's' on the application.  The Tenant contended that the Landlord should have spelt his name correctly.

28.       In his evidence, the Tenant referred to the initial rent under the tenancy commencing in December, 2018, as being €3.750.  He stated that the parties agreed to a reduced rent during Covid.  The rent had been scheduled to return to €3,750.00 in December, 2022.  The Tenant maintained that he had a discussion with the Landlord on the 16th of September, 2022, in which he contended that the rent should not return to the full amount as the market was still difficult and he asked for a partial increase only which the Landlord refused, stating that it was impossible to leave the rent at the reduced level and he would need to sell the property in such case.  The Tenant maintained that following this he agreed to pay the full amount of rent of €3,750 again on the basis that the Landlord would not seek to sell the dwelling.

 

29.       The Tenant's position before the Tribunal was that the parties had a verbal agreement and the verbal agreement should prevent the Landlord from being able to rely on the notice of termination on the basis of the sale of the dwelling.  He referred to s. 5 of the 2004 Act which provides that a tenancy may be oral or implied in order to make the point that there is no requirement for it to be in writing.  The Tenant stated that he had held a further conversation in May, 2023, in which the Landlord accepted that he had committed to not to sell the property.  The Tenant submitted that this was evidence of a tenancy that was verbally agreed which the Landlord could not terminate based on requiring vacant possession to sell the dwelling.

 

30.       Separately, the Tenant queried whether the Landlord had provided evidence of the requisite intention to sell.  He referred to the High Court decisions of Hennessey v. PRTB [2016] IEHC 174 and Gunn v. RTB [2020] IEHC 635 which he stated was authority for the proposition that a landlord had to have more than a general intention to sell. In this regard, the Tenant stated that the Landlord failed to take steps towards progressing the sale of the dwelling to rely on the notice of termination that he had served.  The Tenant stated that the Landlord had unrealistic expectations of the sale price he wished to achieve on the sale of the dwelling.

 

31.       The Tenant referred to a text message from the Landlord which offered the dwelling to the Tenant for €975,000.00 which the Tenant considered to be an unrealistic price having regard to prices obtained for houses sold in the immediate vicinity.  The Tenant suggested that as the price was unrealistic, it was to be surmised that his intention to sell was not real.

 

32.       Next the Tenant addressed the evidence submitted by the Landlord in emails to the RTB explaining that he wished to sell the property in 2023 to generate a loss to offset his capital gains tax bill to make the point that this reason no longer exists in 2024 and therefore no longer constitutes a valid reason to sell.  He was reminded by the Tribunal that it was concerned by the Landlord's intention at the time he served the Notice of Termination.

 

33.       Finally, the Tenant contended that there had been a breach of Landlord obligations in respect of peaceful occupation following the claimed overholding.  He referred to emails and text messages about alternative properties which he saw as pressuring him to move out and which caused him distress.  He claimed that the Landlord had authorised a neighbour to come to the back garden of the property without his knowledge and consent at a time when gardeners, organised by the Landlord with the Tenant's consent, were present working in the garden.  He referred to another occasion on the 27th of June, 2023, when the Landlord called to the door asking to speak with him and spoke with one of his five housemates (later he referred to four, five occupants altogether including himself) who he said were licensees of his.

 

34.       The Tenant also referred to a visit from the Landlord on the 28th of August, 2023, in which he asked the Landlord not to turn up unannounced.  The Tenant maintained that the Landlord replied "I will turn up at my property any day I want. I will actually pull in the car and park here for the day" and referred the Tribunal to an audio file which the Tribunal confirmed it had heard.  The Tenant said the Landlord stayed sitting in his car in front of the house for the next 30 minutes.  The Tenant described this as "clear harassment" and maintained that he was distressed by the unannounced attendance by the Landlord.  He further referred to an event allegedly occurring on the 24th of September, 2023, when the Landlord attended the property without notice.  On that occasion when the Tenant endeavoured to close  the door on him, the Landlord put his foot in the door, preventing him from closing the door, an event the Tenant recorded on video.  The Tribunal confirmed it had seen the video.  The Tenant gave evidence that he reported the matter to the Gardaí.

35.       The Tenant identified a number of texts in which the Landlord said that he would be in touch regularly until the Tenant moved out of the property he was illegally residing in, as the Landlord contended.  Under cross-examination, the Tenant accepted that there were four people living in the house with him and paying money to him.  He also confirmed that they were unaware that a Notice of Termination had been served.  He said that if they were aware they would move out and he would be left paying for the whole house on his own, even though it was his case that the Notice of Termination was invalid.  He refused to acknowledge that under the Lease he required the Landlord's permission to have other people reside at the dwelling.

 

36.       The Landlord gave evidence that changes in his family circumstances necessitated the sale of the dwelling.  His wife was undergoing medical treatment and that another family member passed away in the recent past aged 47 years.

 

37.       The Landlord stated that he engaged an estate agent in 2022 and that the estate agent gave him advice  with regard to preparing the property for sale. The agent's advice was that the property should be sold with vacant possession.  The Landlord said that he has also retained a solicitor who will act on the sale, but he confirmed that he had not yet engaged in this regard.  On the question of registration, the Landlord stated that all registrations were up to date until the 7th of December, 2023 and that when it came for renewal he was advised not to renew the registration because the Tenant was overholding.  In respect of the sale price sought, the Landlord distinguished a recent property sold in the area from the dwelling because it was built in 1981, did not undergo any renovations and was smaller than the dwelling.  He referred to the price paid for the dwelling and the money expended on the dwelling since then to show that the proposed sale price would result in a capital loss.

 

38.       He outlined that he had an unexpected gain giving rise to a capital gains tax (hereinafter "CGT") liability in 2023.  He was aware that he would not recover the full amount spent on the dwelling and knew that he would have a capital loss from the sale which he could then offset.  He indicated that he had lost money because of the failure to achieve this set off through the sale as intended on foot of the terminated tenancy.  It was his case that by reason of Tenant overholding, he was prevented from executing his tax planning.

 

39.       The Landlord agreed that he called to the dwelling on a number of occasions in 2023.  He explained that this was because he urgently required the dwelling to be sold and he claimed the Tenant was not engaging with him.  The Landlord responded to the claim of harassment in relation to an occasion when he sat in his car on the street for a period of some 30 minutes by stating that he could park there if he wished.  He outlined that when he contacted the Gardaí about the situation, they advised him that it was a civil matter and to go through the RTB.  In consequence, the Landlord has not had further engagement with the Tenant since in or about September, 2023, other than through the RTB process.

 

40.       In cross-examination, the Tenant put it to the Landlord that he had no contracts signed with the solicitor or estate agents and the Landlord confirmed this to be the case.  The parties discussed the registration of the tenancy and the Landlord confirmed the position in light of his evidence in chief.

 

41.       The Tenant put it to the Landlord that he did not have sufficient intention to sell and the Landlord disputed the significance of the signed contracts with an estate agent because none have been permitted access by the Tenant to the dwelling to allow them to propose a contract to him.  The Tenant stated that because the Landlord had no solicitor and no estate agent that the statutory declaration was not sufficient in accordance with Baker J.'s decision in the aforementioned case of Hennessy v. PRTB.  The Landlord's evidence in response was that he would not engage an estate agent officially until the estate agent was able to inspect the dwelling.  The Landlord stated that he has contacted two estate agents who have given him advice to the effect that they would require access to the dwelling before marketing the property for sale.  For his part, however, the Tenant was resistant to permitting attendance by valuers at the dwelling, as apparent from the material on case-file.

 

42.       In submissions, the Landlord further stated that all the recordings generated by the Tenant were illegally made and were inadmissible. The Landlord pointed out that his last attendance at the property in September, 2023, had been prompted by an advertisement placed by the Tenant.  The Tenant had advertised rooms in the dwelling "To Let" for a 12 month period even though the notice of termination had been served.  He was very angry to see this and attended to make the point that the Tenant was overholding and should not be bringing others into the situation.  Given the attitude of the Tenant on that occasion in videoing him and reporting him to the Gardaí, the Landlord reiterated that he had chosen to have no further dealings with him but to leave the matter to the RTB.

 

43.       Having concluded the hearing, the Tribunal reserved its decision.

 

TRIBUNAL DECISION AND BOARD DETERMINATION

44.       The Tribunal notified the RTB of its decision on the 14th of February, 2024.  In a written decision signed by the Chairperson on behalf of the Tribunal, it was found that the Notice of Termination with a date of service of the 30th of December, 2022, was valid and the Tenant was overholding at the dwelling.  Specifically, it was found that the Notice of Termination served on the 30th of December, 2022, contained the necessary information as required in accordance with s. 62 of the 2004 Act and was served on the RTB in accordance with s. 39A of the 2004 Act.  The Tribunal also found that the accompanying Statutory Declaration was in compliance with the provisions of s. 35 of the 2004 Act.  

 

45.       In its reasoning, the Tribunal first identified the appliable statutory provisions before proceeding to refer to the terms of the Notice of Termination served on the Tenant on the 30th of December, 2022 (albeit by clerical error incorrectly referred to by the Tribunal Chair in parts of his Affidavit evidence as the 20th and 22nd of December, 2022) where it was set out that the Landlord sought to terminate the tenancy on the basis that he intended, within a period of nine months of the termination date, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his interest in the dwelling.  

 

46.       The Tribunal concluded that on the balance of probabilities and having considered all the evidence given at the hearing and the evidence submitted in advance of the hearing, that the Landlord possessed the required intention when the Notice of Termination was served on the Tenant on the 30th of December, 2022.  In this regard, the Tribunal observed that it was clear from the evidence furnished that the Landlord had discussed the matter with an estate agent.  The Tribunal also accepted that his decision to seek to sell the dwelling was motivated by personal and financial reasons.  The Tribunal noted the personal reasons for wishing to sell the dwelling, which included a diagnosis of cancer and a death in the Landlord's family pointing out that these reasons were not challenged by the Tenant.  The Tribunal noted further that while the Tenant challenged the valuation of the dwelling, the Tribunal accepted the Landlord's response in respect of a comparable property in the locality as being different in size and condition to the dwelling.  The Tribunal also referred to the issue around a potential tax liability and accepted that this was proffered as an explanation to the Tenant when he served the notice.

 

47.       In upholding the validity of the Notice of Termination, the Tribunal referred to the fact that the Notice was served at the end of 2022 with a termination date midway through 2023. The Tribunal expressly found that the Tenant could not rely on his own overholding past the termination date to create a situation where the Landlord is time barred from reducing a tax liability to undermine the evidence as to intention at the time the Notice of Termination was served.

 

48.       The Tribunal further noted the Tenant's argument that the Landlord did not consider leaving him as a sitting tenant in the dwelling for the sale but the Tribunal accepted that the Landlord required vacant possession to sell the dwelling on the market.  The Tribunal found that the Landlord had sufficiently canvassed the prospect of the sale with his estate agent and with a solicitor to enable the Tribunal to conclude that he had demonstrated a specific intention to sell the dwelling as required by s. 34 of the 2004 Act.  The Tribunal also recognised the Tenant's submission that contracts with those parties were not signed.  It concluded that the absence of signed contracts did not mean that the Landlord did not have the requisite intention to sell with reference to Hennessy v. PRTB, as contended on behalf of the Applicant.  In all the circumstances, the Tribunal was satisfied that the Landlord in the present case had met the statutory criteria to permit him to terminate the tenancy, namely that he not only intended to sell but intended to enter into a binding contract for sale within 9 months of the termination of the tenancy.

 

49.       The Tenant's argument, in reliance on a conversation between the parties which it is contended involved the Landlord stating that he would not sell the dwelling, that the Landlord could not lawfully terminate the tenancy because of an alleged oral agreement not to sell was rejected. This Tribunal found that this conversation, while not denied by the Landlord, did not have the effect suggested by the Tenant, that a permanent tenancy was created between the parties. The Tribunal went on to accept that:

 

"...while the parties may have had the discussion that both parties had the statutory protection of Part 4, rather than a written lease agreement and the Tribunal finds that the conversation did not amount to a waiver of the Landlord's rights under Part 4. The Tribunal accepts that while the Landlord may have intended not to engage in a sale when the parties spoke in 2022 that it is clear that significant life events have occurred in the Landlord's life to compel him to make a decision that a sale is necessary. Those life events, as recited above, were not disputed by the Tenant."

 

50.       Observing that the Tenant had sought a further 90 days within which to vacate the dwelling, the Tribunal determined that the Tenant should be provided with a period of 21 days only from the date of issue of the Order of the Board to vacate the dwelling.

 

51.       Turning next to consider whether the Tenant's counterclaim that the Landlord had breached obligations to allow the Tenant peaceful and exclusive occupation of the dwelling and rejecting that claim, the Tribunal noted that the tenancy appeared to have been relatively harmonious prior to the service of Notice of Termination. The Tribunal noted that the Landlord had adjusted the rent to take into account the economic environment that pertained over the course of the Covid 19 pandemic.  The Tribunal added that following the service of the Notice of Termination, it was evident that the Tenant was disappointed with what he believed to be a change in the Landlord's position from a conversation that had taken place in September, 2022.  The Tribunal noted that this led to a series of encounters between the parties that were:

 

"sometimes civil, sometimes heated but in the Tribunal's mind, never resulting in a breach of the Landlord's obligation to allow the Tenant peaceful and exclusive occupancy as has been alleged."

 

52.       In elaborating on its reasoning in this regard, the Tribunal found with regard to the presence of the Landlord's neighbour in the garden of the dwelling on the 23rd of April, 2023, that this had occurred in circumstances where the Landlord had engaged landscapers and they were identifying which trees or bushes they were going to cut back.  The Tribunal considered that in those circumstances, the Landlord's invitation to the neighbour to attend was in order because her property would be affected by any works the Landlord was undertaking.

 

53.       As for the complaint relating to the Landlord's attendance at the dwelling as the termination date of the 30th of June, 2023, approached, the Tribunal was satisfied that this was because he wished to inquire about the status of the Tenant and the dwelling. The Tribunal referred to a number of video recordings submitted by the Tenant, noting the Landlord's objection to the taking of the footage. The Tribunal found that where the video was taken from inside the dwelling that the Tenant was entitled to film on his phone.  It further observed that it was evident to the Landlord at the time, that the Tenant was filming and he could have walked away if he wished not to be filmed.  Accordingly, the Tribunal did not exclude this footage.  Of this footage the Tribunal stated:

 

 

"the footage showed the Landlord asking reasonable questions about who was living in the dwelling. The Tribunal accepts that the Landlord had a valid concern that with the termination of the tenancy approaching that he believed the Tenant had continued to lease or rent out the rooms which would have suggested that the Tenant had no intention of moving out. The Tenant decided that the Landlord could not speak to the other occupants but it is unclear why he would refuse the Landlord this request, which to the Tribunal's view, was reasonable.  The Landlord is entitled to know who is living in the dwelling. It was clear that around the 28th June that the parties were stressed and frustrated as a result of the impending termination date and the uncertainty around the status of who was living in the dwelling. The resulting conversations, while occasionally heated, did not amount to a breach of any Landlord's obligations."

 

 

54.       The Tribunal took a different approach to the telephone recordings finding that it was incumbent on the Tenant to advise the Landlord that he was recording the conversations.  Therefore, in circumstances where the Tenant was recording the Landlord without his consent, the Tribunal deemed their content to be inadmissible as evidence before the Tribunal in this case.  

 

55.       As for the allegation that the Landlord was spying on the Tenant through a neighbour, the Tribunal found that if a neighbour told the Landlord that someone, and not the Tenant, was seen leaving the dwelling with belongings, this did not suggest that the Landlord was spying or had asked any third party to spy on the Tenant.  The Tribunal concluded that this allegation was completely without foundation.  

 

56.       For these reasons it was concluded that the Tenant's claim for damages for breach of Landlord obligations had not been substantiated.

 

57.       Treating them under a single heading, the Tribunal further found that the facilitation of the in-person hearing, the misspelling of the Tenant's name and the registration status of the tenancy did not affect the hearing process or the outcome of the hearing itself.

 

58.       While the Tribunal accepted that the Tenant sought an in-person hearing, it noted that it had no power over the scheduling of in person hearings.  It pointed to the fact that two Tribunal members attended the in person hearing and the Tenant attended in person also.  It also noted that one of the Tribunal members, due to medical reasons which manifested in the week prior to the Tribunal, had to attend remotely on this basis.  The Tribunal decision recorded that the Landlord attended remotely.  In the reasoning to support its rejection of the Tenant's complaint in this regard, the Tribunal decision recorded that over the course of the hearing, the Tenant was afforded most of the hearing time to lay out his claims.  It was pointed out by the Tribunal that he did not identify any prejudice because of the Landlord not being in attendance. The Tribunal recorded that the Tenant was permitted to ask whatever questions he deemed necessary of the Landlord.  The Tribunal considered that the Landlord was afforded the same due process.  The Tribunal was satisfied that the Landlord's attendance remotely did not affect the hearing process or outcome, nor did it prejudice the parties' cases in any way. 

 

59.       The Tribunal further noted the formal objection to the misspelling of the Tenant's name which was missing an 's' from the dispute application.  The Tribunal stated in its decision that it regarded this clerical error as being one which did not affect the substance of the documentation or the dispute application process, including the Tribunal determination.  In this regard, the Tribunal observed that the Notice of Termination contained the correct spelling and the misspelling appear to have occurred on the dispute application only.  The Tribunal found that a clerical error of this kind did not prejudice the dispute application process in any way.

 

60.       The Tribunal accepted that the Landlord had the tenancy registered when he made the dispute application and his decision not to renew the registration of the tenancy in December, 2023, and after the adjudication, did not affect the ability of the Tribunal to make a decision as regards the appeal.

 

61.       As for the complaint advanced by the Tenant that the referral of the dispute was premature and for this reason invalid, the Tribunal found that the timing of the dispute application did not affect the dispute resolution process or the ability of the Tribunal to make a determination on the parties' case.  In summarising its reasoning, the Tribunal noted that the Landlord lodged a dispute application for overholding on the 28th of June, 2023, when the termination date was the 30th of June, 2023. The Tribunal was satisfied that the application for overholding was borne out by the fact that the Tenant has been in the dwelling since the 1st of July, 2023.  The Tribunal further noted the Adjudication did not happen until the 27th of October, 2023 and the Tribunal hearing did not occur until the 6th of February, 2024.  The Tribunal further noted the evidence given that the Tenant told the Landlord that he would not be moving out on or before the termination date.  For all of these reasons the Tribunal concluded that the timing of the application had no bearing on the dispute resolution process itself or the outcome.

 

62.       Other findings made by the Tribunal have not been challenged in the within proceedings and will not, for this reason, be repeated here.

 

63.       Having been notified of the Tribunal decision the Director of the Board proceeded to make a Determination Order in terms of that decision on the 13th of March, 2024.

 

64.       Under cover of a letter dated the 21st of March, 2024, the Tenancy Tribunal Report and the Determination Order were issued by the RTB to the parties.  The letter advised that either party could appeal the Determination Order to the High Court on a point of law within 21 days of the date of issue of the Determination Order.

 

 

 

 

    ISSUES

65.       In his Notice of Appeal, Grounding Affidavit and submissions, the Tenant contends that the Tribunal:

 

(a) erred in law by failing to recognise a valid oral agreement;

(b) erred in law in its interpretation of sections 34, 35, and 62 of the 2004 Act;

(c) erred in law by proceeding with an application that was filed prematurely;

(d) erred by conducting the Tribunal hearing in a hybrid / remote format;

(e) erred in its duty under section 122 of the 2004 Act to maintain consistency; and

(f) erred by failing to recognise that the Landlord had breached section 12(1)(a) of the 2004 Act.

 

66.       On behalf of the RTB, it is contended that (a) and (f) constitute an appeal on the merits.    It is maintained on behalf of the RTB that the Tribunal considered the evidence before it and did not uphold the Tenant's complaints in this regard.  In any event, the RTB stands over the Tribunal's decision in this regard as being correct in law. 

 

67.       As regards (b), it is contended on behalf of the RTB that while it is phrased as a matter of interpretation, in fact, it amounts to an appeal on the merits and whether there was evidence to support a finding that the Landlord intended to enter into an enforceable contract for sale within nine months of termination of the tenancy.  The RTB maintains that the Tribunal decision in this regard is adequately supported by the evidence and is not amenable to appeal on a point of law having regard to the applicable legal test.

 

68.       As regards (c), (d) and (e), the point is made on behalf of the RTB that these are matters that are levelled against the RTB and not the Tribunal.  It is the Tribunal's determination that is under appeal on a point of law.  Having raised this objection, however, the RTB proceeds to defend this appeal on the basis that no error of law is substantiated.

 

69.       In essence, on behalf of the RTB, it is maintained that its determination was a lawful one.  To the extent that the Tenant is seeking to appeal the decision on its merits, the RTB maintains that same is not permitted in a limited appeal of this nature.  Objection to this appeal is made on the basis that the Tribunal, having considered the evidence before it, was satisfied, on the balance of probabilities, that the Landlord intended to sell the Dwelling within nine months of termination of the tenancy.  This, it is maintained, was a decision based on the evidence and the merits.  The RTB maintain that a complaint merely as to the sufficiency of the evidence is not amenable to review on a statutory appeal that is based on points of law.

 

70.       On his feet before me, the Tenant sought to object to the Landlord's Statement of Opposition on the basis that it was filed late.  He relied by analogy on the decision in Olaszewski v. RTB [2025] IEHC 113 where it was found on determination of a preliminary issue that the Court had no jurisdiction to determine an appeal which was not brought within the time limit prescribed by s. 123 of the 2004 Act.

 

SCOPE OF THE APPEAL

71.       Given the nature of the issues which arise and the objection to this appeal maintained on behalf of the RTB in standing over the Tribunal decision, it is appropriate to first consider the scope of this appeal.  The scope of an appeal under s. 123 of the 2004 Act is now well established.  The leading summary of applicable principles to appeals on a point of law are set out in Deely v. Information Commissioner [2001] IEHC 91, [2001] 3 IR 439 as follows:

 

"There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:- (a) it cannot set aside findings of primary fact unless there is no evidence to support such findings; (b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw; (c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally; (d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision..."

 

72.       Deely was followed in a series of cases referred to in submissions before me including Sheedy v. Information Commissioner [2005] IESC 35, [2005] 2 IR 272, Fitzgibbon v. Law Society [2014] IESC 48, [2015] 3 I.R. 516, and in the specific context of appeals under s. 123 in a number of High Court judgments including Doyle v. PRTB [2015] IEHC 724, Marwaha v. RTB [2016] IEHC 308, Kelly v. RTB [2024] IEHC 730 and Byrne v. RTB [2025] IEHC 84). .

 

73.       Reflecting the dicta approved in Canty v. Attorney General [2011] IESC 23, Baker J. in Hennessy v. PRTB [2016] IEHC 174 stated that:

 

"the High Court will show a degree of deference to the PRTB as an expert administrative tribunal which performs its functions with a high degree of expertise."

 

74.       In Canty v. PRTB [2007] IEHC 243, a tenant appealed a decision of a Tribunal on the grounds that termination of the tenancy was invalid as the landlord did not have the requisite intention to reoccupy the rented dwelling for his personal use. Laffoy J. held that what the tenant was asking the Court to do was to review a decision of the Tribunal on its merits and unless there was no evidence to support that finding, the High Court could not interfere with it.

 

75.       More recently, in WebSummit v. RTB [2023] IEHC 634, Ferriter J. emphasised the "very high bar" which an appellant must surmount to show that "no reasonable decision-maker could have arrived at the finding which the Tribunal arrived at here" (at para. 53).  Ferriter J. identified the test that must be met as follows (at para. 27):

 

"...an appeal may not succeed unless, inter alia, there was no evidence to support a material finding of primary fact, or an inference or conclusion on the facts was one which no Tribunal could reasonably have reached." 

 

76.       Similarly, in lyaba v. RTB [2023] IEHC 491, Simons J. stated (at para. 39) that:

 

"The assessment of the evidence is quintessentially a matter for the Tenancy Tribunal, subject to intervention by the High Court in exceptional circumstances where it concludes there had been no evidence before the decision-maker which could reasonably be said to support its findings."

 

77.       In O'Sheehan & Ors. v. RTB & Ors. [2024] IEHC 409, Simons J. reiterated that an appeal on a point of law encompasses errors such as "defective or no reasoning" as found in A.G. v. Davis [2018] IESC 27, [2018] 2 I.R. 357).  The failure of the Tribunal in O'Sheehan to determine the complaint made by the Tenant was found to constitute an error of law (see para. 106).  Similarly, he found the Tribunal's determination as to the validity of the notice of termination in that case to be vitiated by error of law by reason of a failure to provide a proper statement of reasons for the finding made, adding that an error of this kind amounted to an error on a point of law which is amenable to statutory appeal on a point of law under s. 123 of the 2004 Act (at para. 107). 

 

78.       From all of the foregoing, the principles are now clear and well established.  For an appeal on a point of law under s. 123 of the 2004 Act to succeed, there must be a clear error of law established.  It is not sufficient that the court might have reached a different decision on the merits.  Therefore, the onus is on  the Tenant on this appeal to establish a mistake on point of law in the Tribunal decision.  Properly reasoned findings of fact by the Tribunal reached within jurisdiction on an application of the correct legal test and in accordance with fair procedures cannot be interfered with save on irrationality grounds.  

 

79.       A merits-based challenge arising from the Tribunal's assessment of the evidence before it will not reach the level of irrationality unless the findings made are findings that could not reasonably be made by the Tribunal on the materials before it.  Where there is evidence capable of supporting the conclusions reached, then a finding based on the Tribunal's assessment of the evidence cannot constitute a serious error and cannot be set aside on a s. 123 appeal as an error of law because the Court considers the evidence would better support a contrary conclusion.  This is not the test.

 

STATUTORY FRAMEWORK

80.       Part 4 of the 2004 Act sets out a scheme by which certain Tenants of residential premises enjoy the benefit of a degree of statutory security of tenure. In accordance with Chapter 2 of that Part, a Tenant who has been in occupation of a residential dwelling for a continuous period of 6 months enjoys, primarily, the right to continue in possession as a Tenant for the period of six years from the commencement of the tenancy, or until the expiration of a period of notice, whichever is the later. This is known as a 'Part 4 tenancy'.

 

81.       A Part 4 tenancy may be terminated by a Landlord in accordance with the provisions of s. 34 of the 2004 Act and on one or more of the grounds specified in the Table to the said section.  Section 34 of the 2004 Act provides:

 

"Subject to section 35A, a Part 4 tenancy may be terminated by the landlord on one or more of the grounds specified in the Table to this section if- (a) a notice of termination giving the required period of notice is served by the landlord in respect of the tenancy, and in the case of paragraph 4, 5 or 6 of that Table, contains or is accompanied by the statement referred to in that paragraph....."

 

The relevant ground which concerns the within proceedings is Paragraph 3 of the Table to s. 34(a).  Ground 3 as enacted, stipulated that the landlord intended within three months after termination of the tenancy to enter into an enforceable contract for sale.  The Residential Tenancies (Amendment) Act, 2019 (hereinafter "the 2019 Act") extended this period to nine months and it is now provided:

 

"The landlord intends, within nine months after the termination of the tenancy under this section, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his or her interest in the dwelling or the property containing the dwelling, and the notice of termination is accompanied by a statutory declaration referred to in section 35."

 

82.       As clear from the foregoing, paragraph 3 of the Table to s. 34 states that a valid ground for termination arises if a landlord intends, within nine months after the termination of the tenancy, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his interest in the dwelling.  The proper application of this test is core to the Tenant's complaint in these proceedings.

 

83.       If relying upon the ground aforesaid, Paragraph 3 of the Table to s. 34 further states that the requisite notice of termination must be accompanied by a statutory declaration which, in accordance with s. 35 of the Act, shall include:

 

 

 

(1) a declaration that the Landlord intends to enter into an enforceable agreement to transfer to another, for full consideration of the whole of his interest in the dwelling;

(2) a declaration that the Landlord, by virtue of the notice, is required to offer the Tenant a tenancy of the dwelling if the following conditions are satisfied:

 

(a)   the contact details requirement is complied with;

 

(b)   the Landlord does not enter into an enforceable agreement of the type referred to in Paragraph 4 of the Table to s. 34 within the period specified in that paragraph commencing

 

(i) on the expiration of the period of notice required to be given under subparagraph (i) of Paragraph (a) of s.34 or

(ii) in circumstances where a dispute in relation to the validity of the notice is referred to the Board under Part 6 of the Act for resolution, on the final determination of the dispute, and;

 

(3) the tenancy to which the notice relates has not otherwise been validly terminated by virtue of the citation in the notice of the ground specified in Paragraphs 1, 2 or 6 of the Table to Section 34.

 

 

84.       Section 62 of the 2004 Act sets out the information that must be contained in a Notice of Termination for it to be valid. Pursuant to Section 62, a valid Notice of Termination must: be in writing; be signed by the Landlord or his authorised agent; specify the date of service of it; state the reasons for the termination; specify the termination date, and; state that any issue as to the validity of the notice or the right of the Landlord to serve it must be referred to the RTB under Part 6 within 90 days from the date of receipt of it.

 

85.       Section 6(1) of the Act states that a notice required to be served under the 2004 Act shall be addressed to the person concerned by name and may be served on or given to the person by, inter alia, sending it by post in a prepaid letter to the address at which the person ordinarily resides. Additionally, pursuant to Section 39A of the 2004 Act, where a Landlord serves a Notice of Termination in relation to the tenancy of a dwelling he shall, on the day on which he so serves that Notice of Termination, serve a copy thereof on the Board.

 

86.       Other provisions of the 2004 Act of relevance to the arguments advanced in these proceedings in addition to s. 123 providing for an appeal on a point of law as considered above, include ss. 76-78 (regarding disputes which may be referred to a tenancy tribunal), s. 107 (relating to the power of the Tribunal to adjourn a hearing) and s. 122 in relation to the power of the RTB to raise an issue of inconsistency with a tenancy tribunal. 

 

87.       Also relevant are s. 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 which provides for a power vested in the Minister to designate bodies vested with a power to hold hearings to hold such hearings remotely provided, that the Minister is satisfied that it is appropriate to do so in accordance with s. 31(3).  Any such designation shall not apply in respect of a particular hearing where the designated body is of the opinion that proceeding remoted would be unfair to the person or would otherwise be contrary to the interests of justice. 

 

88.       By Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 (section 31) Order (S.I. 518 of 2020), the Minister for Housing, Local Government and Heritage made an order designating the RTB for the purposes of s. 31.

 

DISCUSSION AND DECISION

89.       It is possible to dispose quickly of the argument made by the Tenant for the first time on his feet during the hearing before me in opening his appeal regarding the late filing of the Statement of Opposition.  I note the explanation tendered on behalf of the RTB to the effect that, through inadvertence, the Statement of Opposition which was delivered to the Tenant by letter dated the 27th of September, 2024, was not filed in the Central Office until January, 2025, albeit both affidavits sworn to ground the facts relied upon in opposition had been filed as well as served.

 

90.       Clearly, in circumstances where Opposition papers were delivered to the Tenant, he was not prejudiced by the delay in filing full Opposition papers because he had them at all material times.  The fact that Statement of Opposition had been delivered to him together with the Affidavit of the Tribunal Chair sworn on the 26th of September, 2024 and the Affidavit of the Head of Legal Affairs and Enforcement of the RTB sworn on the 27th of September, 2024, meant that he had full opportunity to deal with the grounds of opposition advanced by the Landlord well in advance of the preparation of written submissions and the fixing of a hearing date.  It appears no issue was raised at any time with the judge managing the list regarding the filing of the Statement of Opposition.  Indeed, the Tenant filed a replying affidavit to the Opposition papers delivered to him in November, 2024, ever before the Court fixed a date for hearing of his appeal.

 

91.       Contrary to the Tenant's submission, there is no comparison between the legal effect of late filing of a Statement of Opposition and the late filing of an appeal.  Time limits in relation to the filing of Opposition papers are fixed under Court rules or by Court direction for case-management purposes.  Time limits applied as a matter of practice and procedure are not akin to statutorily imposed time limits, particularly where no power is vested to extend time as in the case of an appeal under s. 123 of the 2004 Act. 

 

92.       As made clear in several cases, an impediment to the appeal progressing is created by a failure to bring an appeal within 21 days in accordance with s. 123 of the 2004 Act because the Court has no power to extend time where an appeal is not brought within the time statutory time limit prescribed under s. 123(8).  The Court dismissed the appeal in limine in Olaszewski v. RTB finding that the appeal was not issued within the time-period prescribed by s. 123 of the 2004 Act and it had no power to extend time.  In contrast, the Court's jurisdiction to fix time under the Rules, also addressed in Olaszewski v. RTB and in the authorities cited by Bradley J. in his judgment in that case, and to extend time where necessary in respect of the filing of other pleadings, is unaffected by s. 123 of the 2004 Act because no attempt is made to restrict time for pleadings in that provision other than in relation to the taking of the appeal.

 

93.       The Tenant's reliance on the decision in Olaszewski v. RTB to contend that the late filing of Opposition papers means that the RTB are debarred from opposing his appeal is misplaced and arises from a misunderstanding of the purpose and effect of the time limits prescribed under s. 123 of the 2004 Act.  The late filing of Opposition papers, in the absence of a similar statutory provision precluding opposition to an appeal unless filed within a prescribed time, does not operate to bar the Court from considering grounds of opposition.  Time limits imposed under Rules of Court are imposed as a matter of practice and procedure and are entirely different to time limits prescribed in primary legislation, without a power to extend time vesting in the Court.  Indeed, it appears from the correspondence in this appeal that the Tenant did not file his written submissions in the time directed by the Court because he was unwell, but they were accepted late by the RTB's solicitors without issue being raised.

 

94.       In this case it appears there was no impediment to the late of Opposition papers which were accepted by the Central Office.  It is unclear on the information before me what time-period, if any, was fixed by the Court for the filing of Opposition papers and whether properly an application to extend time fixed ought to have been made. 

 

95.       I have not caused further enquiries to be made in relation to such court directed time periods for pleadings as may have applied to the filing of Opposition papers in the absence of a formal application from the Tenant.  It is unnecessary to do so because I have no doubt but that in circumstances where Opposition papers were delivered to the Tenant in September, 2024 (but not filed at that time through inadvertence) and the Court thereafter proceeded to give directions in relation to the exchange of written submissions and fix a hearing date, which it is clear the Court did, the Court would have been satisfied to extend time for the filing of a Statement of Opposition, if application for such extension were deemed necessary in the circumstances of this case. 

 

96.       In arriving at this conclusion, I note that on this appeal the Landlord has elected to rely on the RTB to defend the Tribunal decision, as he was entitled to do.  It is obvious in those circumstances that a potential prejudice would flow for the Landlord were the RTB prevented from being heard in opposing these proceedings because of a filing error, whereas there is no prejudice to the Tenant in hearing the RTB because the Tenant was provided with a copy of the unfiled Statement of Opposition in a timely fashion. 

 

97.       It is recalled also that the appeal requires to be determined in any event, with or without the opposition of the RTB.  Even absent opposition from the RTB, I would be required to determine the questions of law which arise albeit without the assistance of the full submissions which the RTB have advanced.  I have no doubt that proceeding to hear and determine this appeal without the expert assistance of the RTB would likely increase the risk of mistake of law in my determination of the issues arising and could, therefore, potentially place justice on hazard.  I am satisfied that a filing error of the kind which occurred in this case could not reasonably justify depriving the RTB of rights of audience in opposing this appeal. 

 

98.       Turning then to the grounds of appeal advanced by the Tenant in his Notice of Appeal and as grounded on affidavit, for convenience and coherence I propose to address each ground of appeal in the order in which it appears and is grouped in the RTB's submissions and identified herein from paragraph 80 above. It is noted in this regard, that certain objections raised before the Tribunal have not been pursued in the terms of the appeal as filed.  Issues raised before the Tribunal but not pursued on appeal will not be addressed in this judgment.  By way of example, issues were raised during the Tribunal hearing regarding the admissibility of recordings in evidence.  Some were admitted, others were not.  The Tenant has not challenged the admissibility findings made in this appeal.  Other issues, such as the spelling of the Tenant's name on some documentation, albeit not expressly abandoned, have not been pressed on appeal, presumably on the basis that the Tenant accepts that his complaint in relation to some matters were not substantive and were trivial in nature, not reaching the threshold for appeal on a point of law.

 

99.       Before turning then to the matters which are in contention, it is proper to record that it is common case that the Tribunal was concerned with a Part 4 tenancy on the dispute referred and the subject of this appeal.  Insofar as the power to deal with the dispute is dependent on registration, it is noted that s. 83(2) of the 2004 Act is clearly directed to the RTB.  It is also clear that under s. 83(3) of the 2004 Act the RTB may notify a person or persons concerned of a default in relation to registration and afford an opportunity for this to be rectified within a reasonable time.  Accordingly, a lapse in registration is plainly no impediment to the RTB's power to deal with a dispute referred to it under Part 6 of the 2004 Act.

 

(a)   erred in law by failing to recognise a valid oral agreement

 

100.   The Tenant contends that the Tribunal erred by failing to recognise that an agreement had been reached with the Landlord in September, 2022, to the effect that for as long as the Tenant was in occupation of the Dwelling, the Landlord would not be permitted to sell the Dwelling.  He relies on Hennigan v. Roadstone Wood Limited [2015] IEHC 326 to support the contention that oral agreements are enforceable.  The Tenant contends that the Tribunal erred in concluding that an oral tenancy could not be recognised.  The Tenant maintains that there was evidence of offer, acceptance, consideration and intention to create legal relations but insofar as consideration is concerned, it is common case that it had already been agreed that rent would revert to pre-Covid levels such that the Tenant's contention that his payment of the rent already agreed under the Lease and temporarily reduced constitutes valuable consideration rests on his very strained and self-serving interpretation of the evidence.

 

101.   As pointed out in the Opposition papers filed, the Tribunal did not, in fact, decide that an oral tenancy could not be recognised in an appropriate case but rather, that the agreement as alleged by the Tenant - that the Landlord had agreed to a tenancy of unlimited duration - was not established.  I accept the submission made on behalf of the RTB that this was a conclusion which was reached on the evidence.  It is clear from the Tribunal decision that it did not conclude that an oral agreement was never recognisable but rather that the existence of an enforceable agreement of the kind contended for on behalf of the Tenant was not supported by the evidence in this case.

 

102.   It is recalled that in his evidence before the Tribunal, the Tenant contended that during a conversation in September, 2022, the Landlord agreed not to sell the Dwelling as long as the Tenant continued to occupy it as a tenant.  The Tenant outlined in his evidence that rent was originally set at €3,750 but due to the Covid pandemic, the Landlord agreed to reduce the rent to €2,750 in May, 2020.  It was common case that it was to incrementally increase to the original sum in the following two years. The Landlord outlined that during this period, he waived rent amounting to €20,750.  

 

103.   The Landlord does not dispute that he had a discussion in which he refused to extend rent reductions beyond what had previously been agreed on the basis that he would have to sell unless rent was increased.  He confirmed that he told the Tenant that he had no intention of selling the dwelling provided rent was restored to previously agreed levels.  His position is that he did not by this intent to convey or agree that the Tenant was entitled to stay indefinitely at the Dwelling and he was waiving his right to terminate the tenancy in accordance with law.

 

104.   The Tribunal rejected the contention that this conversation "which involved the Landlord stating that he would not sell the Dwelling" was "a bar to the Landlord's ability to terminate the tenancy on the basis of the sale ground."  The Tribunal found that this conversation did not create "a permanent tenancy" between the parties.

 

105.   I am satisfied that the Tribunal was entitled to come to this conclusion on the evidence.  The fact that the Landlord had no intention of selling the dwelling in September, 2022, self-evidently does not amount to an agreement to create a tenancy which could not subsequently be terminated by the Landlord.  The fact that there was no intention to sell in September, 2022 does not impact on the validity of the subsequent Notice of Termination provided the requisite intention to sell was present when the Notice of Termination was subsequently served, several months later.  The Tribunal noted the Landlord's changed circumstances - that he needed to sell the Dwelling due to financial and personal circumstances relating to a CGT liability and his wife's health. 

 

106.   It is also worth reflecting that the evidence before the Tribunal included documentary evidence from which it is apparent that the Tenant never suggested an agreement to enter into a permanent tenancy at any time before the referral of this dispute.  Bearing in mind that this is a tenant who recorded conversations and sent engaged in correspondence in writing, the failure to record agreement for a permanent tenancy as subsequently contended for contemporaneously with events undermines the plausibility of the Tenant's contention.  It seems to me that this fact, coupled with the unlikelihood that a Landlord would ever sensibly enter into such agreement and the absence of any other corroborating evidence weakens the case the Tenant seeks to make in a manner which supports the reasonableness of the Tribunal's rejection of this claim. 

 

107.   Indeed, the absence of any record of such an agreement is in contrast with the Tenant's ability to suggest agreements in other contexts.  To illustrate this, in email correspondence dated the 24th of September, 2023, the Tenant outlined to the Landlord that he understood that they had reached "an understanding" whereby he "would be afforded the opportunity to peacefully concentrate on [his] pursuit of alternative accommodation."  Against this assertion of an "understanding" in a different context, the Tenant's uncorroborated contention that he had the benefit of an agreement to a permanent tenancy arising from a discussion in September, 2022, when he accepted that rent previously agreed would be restored, is of such dubious plausibility that it is not open to me to conclude that the Tribunal's decision in this case was so unsupported by evidence as to be unsustainable as reached in error of law. 

 

108.   It cannot be concluded that there was no evidence to support the Tribunal's finding that there was no agreement to create a permanent tenancy and, by extension, to waive rights to terminate a Part 4 tenancy under the 2004 Act or that the Tribunal drew inferences that no reasonable Tribunal could draw.  In my view, the Tribunal were quite entitled to reject the Tenant's argument that a legally binding agreement of the nature contended for existed based on its assessment of the evidence.  It was clearly open to the Tribunal to conclude that the conversation which the parties were agreed occurred amounted to no more than a reflection of the fact that the Landlord had no intention, in September, 2022, of disposing of his interest in the dwelling provided satisfactory rent was being received.  The position changed for reasons which were well rehearsed in evidence before the Tribunal.

 

109.   In his submissions, the Tenant also relied on the doctrines of promissory estoppel and part performance.  I am satisfied that the Tenant's reliance on promissory estoppel and part performance are misconceived.  Firstly, as a creature of statute, the Tribunal has no jurisdiction to consider equitable principles.  Accordingly, I accept as correct the submission made on behalf of the RTB that the Tribunal had no jurisdiction to consider the doctrine of promissory estoppel or part performance as alleged by the Tenant.

 

110.   In any event, even if it were open to the Tenant to invoke equitable principles to defeat the Landlord's entitlement under statute to terminate a Part 4 tenancy (which I have found it is not) and to establish the lawfulness of termination before the Tribunal on this basis, it seems to me that it was not established in evidence by the Tenant that the Landlord had the benefit of higher rent extracted on foot of a promise of a permanent tenancy and giving rise to an equitable interest in favour of the Tenant or equitable protection for the Tenant.  It cannot be ignored that the Tenant acknowledged that the Landlord had agreed to reduce the rent from €3,750 to €2,750 during the Covid-19 pandemic.  He further acknowledged that the rent paid after the September, 2022 discussion was no more than a restoration of the original rent agreed at a time also previously agreed.  In the circumstances, it is difficult to see on what factual basis the Tenant contends that the constituent elements of an estoppel or part performance arise.  The evidence does not suggest that he changed his position, suffered a detriment or otherwise altered his position based on a promise made by the Landlord.

 

111.   In all the circumstances, I am satisfied that the Tribunal reached a decision which was open to it on the evidence before it.  I am satisfied that it was open to the Tribunal to refuse to uphold the Tenant's challenge to the lawfulness of the termination of his tenancy based on this evidence.

 

(b)   erred in law in its interpretation of sections 34, 35, and 62 of the 2004 Act

112.   It is common case that on the 30th of December, 2022, the Landlord served the Notice of Termination on the Tenant on the grounds that he intended to enter into an enforceable contract for sale within nine months of termination of the tenancy.  The tenancy was due to terminate in accordance with its terms on the 30th of June, 2023 and having duly respected applicable statutory notice periods.  It is also common case that the Notice of Termination was accompanied by a statutory declaration (as required by s. 35(8) of the 2004 Act).  

 

113.   The Tenant did not challenge the form or content of the Notice of Termination or the Statutory Declaration and no issue arises in this regard.  Instead, the Tenant argues that the Tribunal erred in law in finding that there was sufficient evidence of intention to sell for the purpose of validly terminating a Part 4 tenancy in this case.  He relies on Hennessy v. RTB and Gunn v. RTB to contend that a mere general intention to sell is insufficient to substantiate a lawful termination of a Part 4 tenancy.  He points to other Tribunal decisions where, on the facts in those cases, the Tribunal was not satisfied that the requisite intention to sell was established on the evidence contending that these decisions support his argument that the requisite intention to sell was not established on the evidence in this case.

 

114.   On behalf of the RTB, it is contended that this amounts to an appeal on the merits rather than a matter of law because it concerns the assessment of evidence by the Tribunal.  It is the RTB's position that whether there was evidence to support a finding that the Landlord intended to enter into an enforceable contract for sale within nine months of termination of the tenancy is a question of fact and not of law to be determined by the Tribunal on the evidence.  It is not accepted that there is any inconsistency between the findings by the Tribunal in this case, made on the basis of the evidence in this case, and other instances where the Tribunal rejected assertions of intention to sell supported only by the terms of a statutory declaration or weak evidence.

 

115.   It is clear from the Tribunal decision that the Tribunal correctly identified the applicable statutory provisions as set out at paras. 80 to 88 of this judgment.  It proceeded to decide the issue of validity of the Notice of Termination on the basis that Landlord in this case sought to terminate the tenancy on the asserted basis that he wished to sell the dwelling within a period of nine months from the date of the termination of the tenancy. Accordingly, to lawfully terminate the tenancy, the Tribunal correctly identified that the Landlord was required to serve the requisite Notice of Termination and accompanying Statutory Declaration on the Tenant and to serve a copy of the said Notice of Termination on the RTB.  It properly satisfied itself that this had occurred.

 

116.   The Tribunal further noted that in respect of the Notice of Termination served on the 30th of December, 2022, the Tenant did not dispute that he had received the said Notice and the accompanying Statutory Declaration.  The Tribunal went on to find that the Notice of Termination served on the 30th of December, 2022, contained the necessary information as required in accordance with s. 62 of the Act and was served on the RTB in accordance with s. 39A of the 2004 Act.  The Tenant has not disputed the correctness of this finding or to sought to argue that a basis exists for any other finding.  The Tribunal also found that the accompanying Statutory Declaration was in compliance with the provisions of s. 35 of the Act.  No issue is taken with this finding, nor could it be as it is patently correct. 

 

117.   The crux of the issue raised by the Tenant, therefore, is whether there was adequate evidence of the Landlord's intention to sell.  In Hennessy v. PRTB, Baker J. considered the circumstances in which a landlord may be permitted to terminate a tenancy under this ground and held (at para. 38) that:

 

"the operative reason for termination on account of ground 3 in the table to s.34 is not that the landlord intends to sell the premises, but that he intends to bind himself to a contract for sale within three months of termination" 

 

and (at para. 37) that the

 

"intention must exist before a notice of termination can validly be served"

 

118.   The court did not find that a purchaser must be identified by a landlord when serving a notice of termination but given "the short time of three months", it would be necessary for a landlord to ensure that the conclusion of such a contract was realistic within the prescribed time frame.  

 

119.   In Gunn v. RTB, Simons J. endorsed the dicta of Baker J. (at paras. 31-41) and allowed the appeal. The court held that:

 

 

"the Tenancy Tribunal failed to address the question of whether the evidence demonstrated an intention on the part of the owner of the property to bind himself to an enforceable agreement for transfer within the statutory period of three months"

120.   Simons J. found that there was "no evidence" before the Tribunal which would allow it to reach a lawful finding that on the date of the notice of termination in question the owner had intended to commit to a contract for sale within three months of termination of the tenancy.  Simons J. made it clear that his judgment should not be misunderstood as saying that "regard can never be had to steps taken subsequent to the date of the notice of termination as confirming the existence of the requisite intention" and that there might be cases "where a landlord intends to take advantage of the notice period to market the party" and that "intention only takes concrete form" after the notice of termination is served (at para. 47) .

 

121.   It should also be noted that while a statutory declaration was before the Tribunal in Gunn, the Tribunal did not attach any significance to it in its conclusions, and therefore it could not be considered as evidence before the High Court.  Of further note is that the decisions in both Hennessy and Gunn were addressed to a legislative provision which required the landlord to intend to enter into an enforceable contract for sale within three months of termination of the tenancy, which Simons J. found to be "a very high threshold", and particularly onerous where the landlord had decided not to avail of the notice period to take steps to sell the property.  However, he found that the amendment introduced by the 2019 Act provided "a more realistic and achievable time period of nine months" (at para. 49).  

 

122.   It is this longer nine-month period that the within appeal is concerned with.  With the luxury of a nine-month period within which to enter into a contract for sale as compared to three months under previous provisions, less significance attaches to the failure to take concrete steps to progress the sale prior to the termination date.  With the benefit of this longer period, it can still be both realistic and achievable, depending on the facts of a given case as established in evidence, to enter into a binding contract of sale in respect of a property which was not actively marketed before the termination date.

 

123.   In Stuplinaite, Barr J. held (at para. 67) that the comments of Simons J. in Gunn were obiter dicta but:

"represent[ed] an accurate statement of the law in relation to the evidential value of statutory declarations" 

 

but continued (at para. 68):

 

"Given the informal nature of proceedings before the Tribunal, the better view is that a statutory declaration constitutes evidence of intention, due to the fact that there are penal consequences if the statement made therein is not true, however, given that the statutory declaration is essentially just a statement by the interested party confirming his own stated intention, it is not strong evidence of intention, but is nonetheless some evidence that can be taken into account by the Tribunal"

 

124.   As regards the burden of proof, Barr J. stated (at para. 73) that:

 

"Once the tenant can establish some grounds for arguing that the landlord may not have had a bona fide intention to sell at the time that he served the notice of termination, it is reasonable for the Tribunal to hold that the burden of proof shifts to the landlord to establish that he had the requisite intention at the date of service of the notice of termination". 

 

125.   In Stulpinaite, Barr J. was satisfied that the burden had shifted to the landlord. In that case, there was evidence before the Tribunal to suggest that on the 25th of February, 2019, the landlord's agent told some of the tenants that the landlord intended to carry out refurbishments to the property and not to sell the property, which was the ground identified in the notice of termination.  For that reason, Barr J. said that there "appeared to be contradictory evidence on the part of the landlord as to his state of mind" and it was therefore "reasonable in the circumstances for the burden of proof to shift to the landlord to establish his intention to sell" (at para. 75).   

 

126.   In Stulpinaite, Barr J. accepted that the requisite intention to sell was established based on hearsay and documentary evidence before the Tribunal as to what the letting agent had been told and steps taken coupled with the statutory declaration even though the landlord did not attend in person to give evidence.  He reached this finding in circumstances where it would have been open to the tenant to seek to secure the attendance of the landlord through the sub-poena process for examination as to her intention, but this was not done. 

 

127.   In the even more recent case of Kelly, Bradley J. considered the circumstances in which a landlord could terminate on this ground. He said that the extension from three months to nine months by the 2019 Act ensured that a landlord continued to have a right to sell a property but "one which should be given practical effect without unrealistic deadlines" (at para. 45) balanced against serious consequences for a landlord where the sale did not proceed (at para. 46).

 

128.   In Kelly, Bradley J. was of the view that six factors including the 2019 Act, the notice of termination, the statutory declaration, the option agreement, the fact that there was no sale after 9 months and the evidence of a director for the corporate landlord which had a bearing on his conclusion that sufficient evidence of intention was available.  He said (at para. 49) that the Notice of Termination:

 

"represented the communication of a statement of intent" ,

 

129.   It was considered (at para. 59) that the Statutory Declaration "constitutes some (albeit not strong) evidence" of the landlord's intention noting the onerous responsibility on a person who makes a statutory declaration (at para. 48).  He identified other evidence specific to the case which established intention and attached significance to the fact that the applicable period was nine months, not three. Bradley J. held that the actions of the tenant (the registration of a lis pendens) which postdated the Notice of Termination did "not negate paragraph (3) of the 'grounds for termination."

 

130.   Arising from the above, the following principles have been identified as emerging to guide my decision:

 

 

(a) To terminate a tenancy, a landlord must serve a notice of termination which identifies the ground of termination and that notice must be accompanied by a statutory declaration confirming the intention of the landlord to sell the property.

(b) The operative reason for termination is that the landlord intends to enter into an enforceable contract for sale within nine months of termination of the tenancy.

(c) The intention must exist on the date the notice of termination is served.

(d) A statutory declaration "is not strong evidence of intention" but "is nonetheless some evidence."

(e) Steps taken subsequent to the date of the notice of termination can confirm the existence of the requisite intention.

(f) The burden is on the tenant to "establish some grounds for arguing that the landlord may not have had a bona fide intention to sell at the time."

(g) Steps taken by a tenant cannot negate the Landlord's intention.

(h) If a landlord does not enter into an enforceable contract for sale within nine of termination of the tenancy, the landlord is obliged to offer a tenancy to the former tenant.  If the tenant challenges the notice of termination and a dispute is referred to the RTB, the nine-month period commences when the dispute is finally determined.

 

131.   This brings into focus the evidence before the Tribunal in this case.  The following documentary evidence was before the Tribunal:

 

(a) The Notice of Termination terminating the tenancy on the grounds that the Landlord intended to enter into an enforceable contract for sale within nine months of termination of the tenancy (per Bradley J. in Kelly, this amounts to "a statement of intent").

(b) A Statutory Declaration of the Landlord whereby he declared an intention to enter into an enforceable contract for sale within nine months of termination of the tenancy which has some evidential value.

(c) A cover letter enclosing the Notice of Termination detailing that due to recent changes in his family's circumstances, the Landlord was left with no option but to sell the Dwelling.

(d) Direct evidence of the Landlord detailing that from October, 2022, he had formed the intention to sell the Dwelling due to changed circumstances which included a family bereavement and his wife's cancer diagnosis together with financial concerns requiring him to sell the Dwelling.  He also gave evidence that he engaged with his estate agent from late 2022 on the matter; and that he had a solicitor to handle the sale when required.

(e) That it remained the intention of the Landlord to sell the Dwelling (Whatsapp messages to the Tenant), emails from the Landlord to the Tenant emphasising how "important" it is "to get the property on the market for sale in the coming weeks" and emails dated 26th of July, 2023, referring to the stress and hardship caused by delays in the Tenant moving out and asking the Tenant to have "the decency to allow me to inspect my property, obtain a valuation and erect a for sale sign.  I cannot emphasis enough how urgent it is for my family to sell the property in the near future."

(f) Documentary evidence that the Tenant was objecting to the Landlord placing any for sale sign at the Dwelling or authorising any agents to do so as apparent in an email dated the 11th of July, 2023, in which the Tenant maintained in response to the Landlord's notified intention to erect a for sale sign at the dwelling that would be treated as a breach of the Tenant's right to peaceable and exclusive occupation and would be removed and the breach reported to the RTB.

 

132.   While, in essence, the Tenant proceeds on the basis that the evidence of intention provided by the terms of a statutory declaration is not enough, this argument ignores the fact that the evidence before the Tribunal was not confined to the contents of the statutory declaration.  On the contrary, the evidence before the Tribunal supporting the existence of an intention to sell within nine months extended well the terms of the statutory declaration. 

 

133.   In its decision, the Tribunal relied not alone on the Statutory Declaration but found that on the balance of probabilities and having considered all the evidence given at the hearing and the evidence submitted in advance of the hearing, that the Landlord possessed the required intention when the Notice of Termination was served on the Tenant on the 30th of December, 2022. 

 

134.   The Tribunal expanded on its reasoning by stating with regard to that evidence that:

 

"In this regard, it is clear from the evidence furnished that the Landlord had discussed the matter with an estate agent to sell the dwelling and that his decision to seek to sell the dwelling was motivated by personal and financial reasons. The Tribunal notes that the personal reasons, which included a diagnosis of cancer and a death in the Landlord's family, were not challenged by the Tenant. While the Tenant challenged the valuation of the dwelling the Tribunal accepts the Landlord's response in respect of a comparable property in the locality as being different in size and condition to the dwelling. The Tribunal notes the issue around a potential tax liability and the Tribunal is not at liberty to determine what liability the Landlord has however the Tribunal accepts that this was proffered as an explanation to the Tenant when he served the notice. The Tribunal finds that the Tenant cannot rely on his own overholding past the termination date to create a situation where the Landlord is time barred from reducing a tax liability. The Tribunal notes that the notice was served at the end of 2022 with a termination date midway through 2023.  The Tribunal views the Tenant's argument that the Landlord's tax requirement for sale are without sufficient merit in the circumstances when the Landlord complied with the legislation to effect a termination properly.  The Tribunal notes the Tenant's argument that the Landlord did not consider leaving him as a sitting tenant in the dwelling for the sale however the Tribunal accepts that the Landlord required vacant possession in order to sell the dwelling on the market. The Tribunal finds that the Landlord had sufficiently canvassed the prospect of the sale with his estate agent and with a solicitor to enable the Tribunal to conclude that he had demonstrated a specific intention to sell the dwelling as required by section 34. The Tribunal recognises the Tenant's submission that contracts with those parties were not signed however this is not proof of the Landlord not having the requisite intention to sell as provided by the case referenced by the Tenant in Hennessy v Baker 2016] IEHC 174. The Tribunal is satisfied that the Landlord in the present case has met the statutory criteria to permit him to terminate the tenancy, namely that he not only intends to sell but intends to enter into a binding contract for sale within 9 months of the termination of the tenancy. The Tenant presented an argument that a conversation between the parties which involved the Landlord stating that he would not sell the dwelling as being a bar to the Landlord's ability to terminate the tenancy on the basis of the sale ground. .... Taking into account the matters referred to hereinabove, the Tribunal finds that the Notice of Termination served on the Respondent Tenant on 30th December 2022 is valid. The Tribunal notes that the Tenant sought 90 days to vacate the dwelling. In the circumstances, the Tribunal is satisfied that the Tenant should be provided that with a period of 21 days from the date of issue of the Order of the Board to vacate the dwelling."

 

135.   Having considered the evidence before it, the Tribunal found the Notice of Termination to be valid and provided the following reasoning: 

 

"[l]t is clear from the evidence furnished that the Landlord had discussed the matter with an estate agent to sell the dwelling and that his decision to seek to sell the dwelling was motivated by personal and financial reasons.  The Tribunal notes that the personal reasons, which included a diagnosis of cancer and a death in the Landlord's family were not challenged by the Tenant... The Tribunal finds that the Tenant cannot rely on his own overholding past the termination date to create a situation where the Landlord is time barred from reducing a tax liability. " (p.7)

 

136.   In conclusion and having considered the judgment in Hennessy, the Tribunal found that it was not necessary to have contracts signed to order to establish intention and that the Landlord had "met the statutory criteria to permit him to terminate the tenancy" (at p.7).

 

137.   In the light of the foregoing, the Tenant's contention that the Tribunal's finding that the Landlord possessed the requisite intention was "unsupported by evidence" and that there was a "complete absence of evidence" is manifestly without merit.  In this regard, the Tenant appears to be of the erroneous view, unsupported by any authority, that contracts must be signed to establish intent.  This is not a requirement in either Gunn or Hennessy, which judgments the Tenant relies on or any subsequent decision.  While Tribunals in other cases have relied on the absence of a signed contract, this is but one evidential feature which falls to be considered with the totality of the evidence and which is less significant when a landlord has a nine month period within which to enter into a contract as compared to only three because, depending on the facts, achieving a sale remains realistic and achievable in the absence of a signed contract when one has a longer period to secure the sale. 

 

138.   Although the Tenant also contends that the Landlord had not "engaged an estate agent", "instructed a solicitor" or "identified a potential purchaser" and that there was no evidence that "concrete steps" had been taken to sell, this argument ignores the evidence the Landlord gave in this regard coupled with the fact that none of these matters are required to establish the requisite intent (see Hennessy, Gunn, Stulpinaite, Kelly in this regard), provided there is sufficient evidence of an intention to sell within the time-frame contemporaneous with the service of the Notice of Termination. 

 

139.   In this case there was an amplitude of evidence of such intention from which it was open to the Tribunal to reach its decision.  Indeed, it is more than apparent from correspondence in evidence that even after his referral of the dispute to the RTB, the Landlord pressed for a mediation date and referred to adjudication advising that the Tenant was refusing to allow him to inspect the property or erect a "for sale" sign which the Landlord complained was causing undue stress and financial impact.  It was stated by the Landlord and apparent from the documents before the Tribunal that the Tenant was no longer replying to phone calls, emails or text messages.  It was for this reason that the Landlord requested, in writing, that the case be escalated and sought an early adjudication date.

 

140.   The Tenant also contends that because one of the Landlord's reasons for selling (tax reasons) was no longer live (on account of the Tenant's overholding), this meant that this reason could not be taken into account by the Tribunal.  However, Bradley J. makes it clear that steps taken by a tenant cannot "negate" a landlord's intention.  As outlined above, intention is determined on the date the notice is served.  Accordingly, the Tenant's overholding is not relevant to the Tribunal's determination.  Furthermore, if a tenant's overholding could preclude the holding of an intention to sell, the statutory intention of the 2004 Act would be entirely undermined.

 

141.   The Tribunal had before it a substantial body of evidence as to the Landlord's intention, supportive of the existence of the requisite intention to sell when serving the Notice of Termination.  The Tribunal has clearly set out its reasoning in reliance on this evidence in arriving at the conclusion that the requisite intention to sell had been established to its satisfaction.  The Tenant has not established that the Tribunal erred in law in its interpretation of ss. 34, 35, 62 of the 2004 Act and /or that it erred in its application of the principles set out in the judgments of Gunn v. Residential Tenancies Board and Hennessy v. Residential Tenancies Board or in any of the subsequent caselaw referred to in submissions.  

 

142.   I am satisfied that there was evidence before the Tribunal that the Landlord intended to enter into a contract for sale within nine months of termination of the tenancy sufficient to support the Tribunal's findings in this regard in finding that the Notice of Termination was lawful and the Tenant was overholding.  No proper basis for interfering with the decision on the basis of error of law has been demonstrated in respect of the Tribunal's approach to the application of ss. 34, 35 and/or 62 of the 2004 Act.

 

(c)   erred in law by proceeding with an application that was filed prematurely

 

143.   The Tenant contends that because the Landlord referred a complaint to the RTB on the 29th of June, 2023, when the Notice of Termination expired on the 30th of June, 2023, the application was premature and should have been rejected.  The Tribunal rejected this submission finding:

 

"The Tribunal notes that the Landlord lodged a dispute application for overholding on the 28th June 2023 when the termination date was 30th June 2023. The Tribunal is satisfied that the application for overholding is borne out by the fact that the Tenant has been in the dwelling since 1st July 2023. The Tribunal notes the Adjudication did not happen until 27th October 2023 and the Tribunal was on 6th February 2024. The Tribunal notes that the Tenant told the Landlord that he would not be moving out on or before the termination date, therefore the timing of the application has no bearing on the dispute resolution process itself or the outcome."

 

 

144.   The Tenant argues that this finding reflects an error of law on the part of the Tribunal.  The Tenant relies on s.78 of the 2004 Act which provides, without prejudice to the generality of ss. 76 and 77, for a list of matters in respect of which disputes and complaints may be referred to the RTB for resolution.

 

145.   In response, it is contended that this is a matter which ought properly to be levelled against the RTB and not the Tribunal on a point of law and accordingly cannot properly be pursued in these proceedings.  This is because it is the RTB which accepted the dispute under the dispute resolution procedures prescribed under the 2004 Act and referred it for resolution.

 

146.   The Tribunal's submission is not necessarily correct in this regard.  Much turns on the interpretation of the provisions which give Tribunal power to act and in Doyle v. PRTB [2015] IEHC 724, Baker J. found that the fact that a point may be amenable to judicial review does not mean that it may only be raised by way of judicial review and the same point may equally be cast as a question as to whether the Tribunal were correct in the approach adopted to a question of law before the Tribunal for determination.  I have not been referred to any provision of the 2004 Act, however, which would support a conclusion that a dispute may only be referred after the expiry of a notice period provided for in a notice of termination, once a dispute exists.

 

147.   It bears note in considering the question of prematurity that the 2004 Act is broadly drawn in a manner which allows for a very wide range of disputes to be accepted for adjudication.  Section 75(2) makes clear that reference to a "dispute" includes a disagreement and disagreement is defined under s. 75(3) as including any issued arising between the parties with regard to the compliance by either with his or other obligations as landlord or tenant and any matter with regard to the legal relations between the parties that either or both of them requires to be determined (for example, whether a tenancy has been validly terminated).  Section 80 of the 2004 Act limits when a dispute in relation to the validity of a notice of termination may be referred to a specified time period.

 

148.   Section 76(1) provides in very general terms that either or both parties to an existing or terminated tenancy of a dwelling may, individually or jointly, as appropriate, refer to the RTB for resolution any matter relating to the tenancy in respect of which there is a dispute between them.  As noted in Doyle v. PRTB (para. 27), s. 76 provides that either or both landlord and tenant may refer a dispute.  The 2004 Act envisages that a number of disputes may be determined in an adjudication or on appeal.  At para. 30 of her judgment in Doyle, Baker J. added that the power of the Tribunal to determine disputes under s. 75(3) was not limited to disputes declared by the party who first refers but encompasses "any issue between the parties with regard to their legal relations, may be submitted for dispute resolution." 

 

149.   Referring to the procedure provided for dispute resolution is in Part 6 of the 2004 Act, Baker J. noted in Doyle that s. 100 provides for an appeal from the Adjudicator to the Tribunal.  She considered also that under s. 104(3) the Tribunal gives notices including an outline of the substance of the matters to be dealt with at the hearing.  As Baker J. said (at para. 34 of her judgment in Doyle), the combined effect of these provisions is that the Tribunal on appeal has the power to characterise or formulate the dispute and in doing so the Tribunal identifies the issues.  

 

150.   Indeed, while s. 76(2) expressly precludes referral of a dispute in respect of rent in the case of a tenancy which has been terminated until after the expiry the expiry of 28 days from the termination of the tenancy, no similar provision is made in respect of other types of dispute.  The fact that the timing of referral is expressly circumscribed for one category of dispute only weighs very heavily against the correctness of the Tenant's legal argument.  When the Oireachtas wished to limit when a category of dispute could be referred for dispute resolution, it expressly so provided.  Had it wished to limit the referral of a dispute in respect of the effect of a notice of termination and the entitlement of the Landlord to recover possession upon the expiry of the applicable notice period, the Oireachtas could readily have so provided.

 

151.   It is relevant to note also that the 2004 Act eschews unnecessary formality as to the way disputes are referred and has the stated purpose (apparent from the Long Title) of simplifying the resolution of landlord and tenant disputes in the residential sector, with the aim of resolving disputes cheaply and speedily.  I am satisfied that as a matter of law there is no statutory impediment to the referral by the Landlord of the dispute which arose in this case, once a dispute existed at the time of referral. 

 

152.   It was apparent from the Landlord's evidence that on the 28th of June, 2023, the Tenant informed the Landlord that he had no intention of vacating the Dwelling.  From communication of this intention, albeit immediately prior to the expiry of the notice period allowed, it was very clear that there was a dispute between the parties as to the Landlord's entitlement to vacant possession as at the termination date.  When referring his dispute using the prescribed form on the 28th of June, 2023, the Landlord referred to the service of the Notice of Termination requiring him to vacate by the 30th of June, 2023 and stated as follows:

 

"The Tenant called me today to advise they and their sub-tenants cannot move out as they have nowhere to go. They have sought alternative accommodation but have to been successful today and find the market has limited to no options. Discussed availing of CRT is through the housing agency as tenant believes they qualify, he has contacted through DLRCC. I advised I would be submitting this dispute as I must sell the property in 2023."

 

153.   By the date of the hearing, it was apparent from the correspondence before the Tribunal in evidence that the Tenant was ignoring any engagement to seek a solution and in the face of this, the Landlord was left with no alternative but to seek to expedite as best he could the determination of the dispute using the dispute resolution mechanisms afforded under the 2004 Act.  

 

154.   When the Adjudication hearing took place in October, 2023 and the Tribunal hearing took place in February, 2024, there was absolutely no doubt that the termination date had passed.  Provided always that the tenancy had been lawfully terminated, there could be no doubt that the Tenant was overholding when the matter came on for decision making.  In the circumstances, the Tribunal correctly noted that as the Tenant had no intention of moving out of the Dwelling, "the timing of the application [had] no bearing on the dispute resolution process or the outcome."

 

155.   My conclusion in this regard is supported by the decision in Doyle v. PRTB [2015] IEHC 724 where Baker J. rejected an argument advanced by the tenant appellant that as there was no dispute in relation to rent arrears referenced in the application for dispute resolution services, the RTB could not make a finding on it. Baker J. stated (at para. 27):

 

"Section 76 is clear in this regard. What is not identified in the Act is how a disagreement is to be formulated, and whether the formulation by one or both parties, as is the case with pleadings in court litigation, is required to be formally set out by the parties before the hearing, or whether it may arise in the course of the hearing, subject of course to fair procedure being afforded to each party, and no matter of "surprise" arising" ) ...

 

156.   The Tenant has not identified any procedural unfairness in the determination of the dispute referred a day before the date specified on the Notice of Termination. As stated by Baker J. in Doyle, there was "no matter of 'surprise' arising."

 

157.   The complaint made by the Tenant that the Landlord was premature is without substance in circumstances where the Notice of Termination expired on the 30th of June, 2023, and on the 28th of June, 2023, the Tenant informed the Landlord that he would not be vacating the Dwelling on the 30th of June, 2023, clearly signalling the existence of a dispute between the parties.  It was crystal clear as of the 28th of June, 2023, that there was a dispute between the parties as to the effect of the notice of termination and the nature of the obligation on the Tenant to vacate.  To enforce his entitlement to vacant possession under the 2004 Act, the Landlord required an order from the RTB following an assessment of the issues in accordance with law.

 

158.   Furthermore, in circumstances where the Adjudicator did not determine the dispute until the 27th of October, 2023, prematurity does not arise.  By then the notice period provided for in the Notice of Termination had well and truly expired.  When the matter came before the Tribunal in February, 2024, the Tenant had been overholding for many months, presuming a lawful termination of the tenancy on the 30th of June, 2023.  In all the circumstances, I am satisfied that there is no merit to the complaint of prematurity and the Tribunal was entitled to proceed to determine the dispute. 


(d) erred by conducting the Tribunal hearing in a hybrid / remote format

159.   In his response to the dispute referred by the Landlord, the Tenant asked the RTB for an in-person hearing.  He was advised by the RTB in advance of the hearing that it would proceed in hybrid fashion with the chairperson and a second member present in person and one Tribunal member and the Landlord attending remotely.  He raised no issue with the RTB in response to formal notification of a remote hearing.

 

160.   Before the Tribunal he "formally" recorded his "objection to the remote format." While he did not give any particulars on this objection other than the fact that he had requested an in-person hearing, a Tribunal member (attending remotely) advised him that:

"if at any point you wish to draw the Tribunal's attention to how you have been disadvantaged... you may do that" (T:p.l60,L25).

 

Following the initial objection, the Tenant made no further comment on this issue.

 

161.   In its decision, the Tribunal concluded that the hybrid nature of the hearing did not affect the hearing process or the outcome of the hearing itself.  While accepting that the Tenant sought an in-person hearing, the Tribunal noted that it had no power over the scheduling of in person hearings adding:

 

"Two Tribunal members attended the in person hearing and the Tenant attended in person also. One of the Tribunal members, due to medical reasons which manifested in the week prior to the Tribunal, had to attend remotely on this basis. The Landlord attended remotely. Over the course of the hearing, the Tenant was afforded the majority of the hearing time to lay out his claims however he did not identify any prejudice as a result of the Landlord not being in attendance. The Tenant was permitted to ask whatever questions he deemed necessary of the Landlord to challenge his case and the Landlord was afforded the same due process. The Tribunal finds that the Landlord's attendance remotely did not affect the hearing process or outcome nor did it prejudice the parties' cases in any way."

 

162.   The power of the RTB to convene a remote hearing or of the Tribunal to proceed remotely has not been called into question in any intelligible manner.  The Tenant appears to maintain his objection to the lawfulness of the process by contending that the hearing before the Tribunal was unfair, but he fails, even now, to identify any prejudice other than to make a general assertion that "non-verbal communication is crucial and its effectiveness is diminished in remote settings". 

 

163.   The Tribunal relies on s. 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 Order (Statutory Instrument 518/2020) as the legal basis for providing for a hybrid hearing under the 2004 Act.  The RTB is a designated body for the purposes of the 2020 Act and accordingly is permitted to convene hearings remotely.  No challenge has been brought to the designation of the RTB under s. 31 of the 2020 Act nor to the statutory instrument made thereunder for the purpose of confirming a power to proceed to hear a case by remote hearing.  A remote hearing is defined under s. 31(6) of the 2020 in a manner which allows for a hybrid hearing where some persons attend in person and others using electronic communications technology. 

 

164.   Complaints of the vague and general nature which the Tenant advances do not relate to anything particular to his complaint and to be properly presented would require him to challenge the designation of the RTB for remote hearings and the power of the RTB to convene a remote hearing per se, which he has not done in appropriately constituted proceedings. 

 

165.   The Tenant also relies, however, on s. 104(2) and 104(4)(a) of the 2004 Act which provide that the Tribunal shall hold one or more hearings for the purpose of determining the dispute and requires the RTB to notify the parties of "the date, time, venue and purpose of the hearing."  The Tenant contends that the use of the word "venue" implies a physical location where all participants are intended to be present.

 

166.   I cannot accept the Tenant's argument, hinging on the use of the word "venue" in s. 104, that it was impermissible to proceed by way of remote hearing in this case.  The fact of the matter is that the Tribunal hearing took place at a physical location, with some participants joining the hearing remotely.  The RTB discharged its obligations under s. 104 by notifying the address of the venue and alerting the parties to a means of attending at a hearing.  Indeed, the Tenant attended physically at the venue.  The other party to the dispute was facilitated in accessing the venue using remote technology.  The third Tribunal member was also present remotely at the "venue" in the sense of participating at the hearing.

 

167.   As regards whether it was lawful to schedule a hybrid hearing in this case, it is maintained on behalf of the RTB that this is not a matter for the Tribunal as scheduling of hearings is done by the RTB and, therefore, this is not properly a point of law arising from the decision of the Tribunal.  I note that the Tenant never made application to the RTB under s. 31(2) of the 2020 Act to disapply s. 31(1) in this case or to contend that it would be unfair or otherwise contrary to the interests of justice to proceed remotely.  Insofar as the Tenant might have sought to challenge the decision of the RTB to allow for a remote hearing in this case, it seems to me that it would first have been important for the Tenant to engage in correspondence with the RTB to explain why such a hearing was unfair to him or would otherwise be contrary to the interests of justice or otherwise unlawful were he to properly ground a refusal on the part of the RTB to convene an in-person hearing.  He did not do so.

 

168.   I agree, however, that this cannot be the end of the matter.  The Tribunal has a separate duty to ensure the fairness of proceedings before it.  It would have been open to the Tribunal where it was satisfied as to unfairness or prejudice arising from proceeding by way of remote hearing, to adjourn the matter to allow for an in-person hearing to be convened by the RTB at the Tribunal's request.  Accordingly, while the power to disapply s. 31(1) vests in the RTB and not the Tribunal and it is not contended in properly constituted proceedings that there is no jurisdiction to proceed remotely, in my view the Tribunal has a separate duty to safeguard the fairness of proceedings before it.  To this end, the Tribunal has a power to adjourn a hearing (s. 107) if it becomes apparent that the fairness of the process is undermined by proceeding remotely or if it would otherwise be contrary to the interests of justice for the Tribunal to proceed remotely. 

 

169.   Accepting that the Tribunal had a power to adjourn proceedings if concerned that proceeding remotely was tainted by unfairness or injustice, it was pointed out on behalf of the RTB that in this case no issues were identified beyond formal objection to proceeding remotely.  Indeed, as apparent from the transcript, the Tenant was afforded most of the hearing time and he was permitted to ask whatever questions he deemed appropriate of the Landlord.

 

170.   The Tenant's complaint that the Tribunal member attending remotely participated in a limited fashion only is not established having regard to the transcript and is not supported by the evidence. 

 

171.   Where the vires of the designation order made is not in question in these proceedings and where no challenge in proper form is taken to the decision of the RTB to convene a hybrid hearing in part reliance on electronic communications technology, the issue for the Tribunal was whether it should adjourn proceedings having regard to the fairness of proceeding remotely, the interests of justice or for some other appropriate reason. 

 

172.   In the absence of any demonstrable want of fairness or impact on the interests of justice in this particular case arising from proceeding remotely having been established or some other legitimate basis for objecting to the matter proceeding remotely having been identified to the Tribunal to warrant an adjournment for the purpose of convening an in-person hearing for reasons particular to this case, the Tenant's complaint in this regard has not been substantiated. 

 

173.   I am satisfied that there is no error of law apparent in the Tribunal's conclusion that remote proceedings resulted in no unfairness or prejudice in this case having regard to the ability of the Tenant to present his case and challenge the case against him on the evidence adduced and in the absence of an identifiable challenge to the vires of the RTB or the Tribunal being advanced.

 

174.   Nor do I agree that reliance on s. 31 of the 2020 Act and the designation of the Tribunal constitutes impermissible ex post facto reasoning.  Reference is made to these provisions in Opposition papers delivered to identify the legal basis for a remote hearing and not to bolster the decision of the Tribunal which was simply that the scheduling of the hearing was not a matter for it where it was satisfied that no prejudice resulted to the Tenant from proceeding remotely.  It would have been open to the Tenant to seek to challenge the vires of the designation order made or the conduct of a hybrid hearing in reliance on s. 31 of the 2020 Act within applicable time limits following the identification of these provisions as providing the legal basis for convening and conducting a hybrid hearing in this case, if he elected to do so.  No such challenge has been brought.

 

(e) erred in its duty under section 122 of the 2004 Act to maintain consistency

175.   The Tenant contends that the RTB ought to have engaged s. 122 of the 2004 Act in this case.  Pursuant to s. 122, where the RTB forms the view that a determination of a Tribunal is inconsistent with the previous determinations of the Tribunal, it may seek the opinion of the Tribunal that determined the case and direct a re-hearing to facilitate a fresh determination being made.

 

176.   It is common case that in this instance the RTB did not engage s. 122.  In an Affidavit sworn by the Head of Legal Affairs on behalf of RTB, it was averred that the Tribunal decision was not inconsistent with previous Tribunal determinations.  It is further averred and submitted on behalf of the RTB that even if the RTB were of the view that the Tribunal determination in this case was inconsistent with previous determinations of the Tribunal, it is not mandated to exercise its powers under s. 122.   

 

177.   The Tenant's complaint in this regard is easily disposed of in that the appeal under s. 123 of the 2004 Act is an appeal of a determination of a Tribunal.  The Tribunal has no power to engage s. 122 of the 2004 Act.  Insofar as criticism is therefore open with regard to a failure to exercise the power in s. 122, this is a criticism properly levelled against the RTB and not the Tribunal and cannot be pursued by way of an appeal on a point of law in this appeal. 

 

178.   Insofar as the Tenant contended that if this were the case that he could not maintain his complaint regarding the failure to invoke s. 122 on this appeal, he should be given leave to bring such a challenge, counsel on behalf of the RTB pointed out that it is open to the Tenant to seek to judicially review the RTB arising from its failure to exercise powers under s. 122 of the 2004 Act but this was not a matter which could be raised during the course of the hearing of these appeal proceedings.  I am satisfied that this is correct and the matter of the exercise of powers under s. 122 is not properly before me and does not arise for determination on the proceedings as constituted.  Where a tenant wishes to require the RTB to engage its powers under s. 122, in the normal course he or she should correspond with the RTB pointing out the alleged inconsistency and inviting the RTB to consider exercising its s. 122 power.  I have seen no such correspondence in this case.

 

179.   While I do not decide the issue absent an application in proper form in appropriately constituted proceedings, it is manifestly the case that any proceedings which the Tenant might contemplate as against the RTB arising from its failure to engage s. 122 face the difficulty that the power under s. 122 is discretionary.  This means that the RTB is not mandated to exercise.  A challenge to its failure to exercise the power would require a strong evidential basis, particularly where if the Tribunal has erred in law in its determination of a dispute, an appeal lies under s. 123 of the 2004 Act. 

 

180.   Although the matter is not before me, it is not immediately obvious from what I have seen that there is any basis for the Tenant's contending that the Determination Order under appeal is inconsistent with previous determination orders.  This would be a difficult case to substantiate where a determination order is made based on an assessment of the evidence in each case guided by legal principles identified in the 2004 Act and through the case law with the result that establishing cases to be sufficiently alike to warrant being treated as inconsistent with each other requires a very high level of similarity between the facts and evidence in each case, itself a significant evidential burden.

 

181.   The real question for me on this appeal on a point of law where inconsistency with prior determinations has been complained of is whether I am satisfied that the decision in this case is correct in law having regard to established applicable legal principles.  I am satisfied that the Determination Order made in this case aligns with previous determinations and no inconsistency or error of law in the Tribunal's approach to this case regarding the case-law of the Superior Courts has been established.

 

 

(f)     erred by failing to recognise that the Landlord had breached section 12(1)(a) of the 2004 Act

 

 

182.   The Tenant maintains that the Landlord's unannounced visits, instructions to a neighbour to monitor him, unwanted communication and aggressive behaviour created a "hostile and intimidating environment" constituting a breach of his right to peaceful enjoyment protected under s. 12(1)(a) of the 2004 Act.  In this regard he relies on a series of encounters occurring following the service of the Notice of Termination.  The Tribunal heard evidence in relation to these encounters, including recordings and decided that these encounters were sometimes civil, sometimes heated but in the Tribunal's mind, never resulting in a breach of the Landlord's obligation to allow the Tenant peaceful and exclusive occupancy as had been alleged.  The Tenant maintains that the Tribunal's decision in this regard flies in the face of the evidence.  Reliance is placed on recordings, some of which the Tribunal found inadmissible. 

 

183.   Upon application on behalf of the Tenant and despite the objection made on behalf of the RTB, I watched several recordings in Chambers and understand that these recordings were admitted in evidence by the Tribunal.  I did so in circumstances where it was strongly argued by the Tenant that my jurisdiction extends to a power to find an error of law where a decision of fact is not one open on the evidence, which is a case he sought to make.  On behalf of the RTB, it was contended that this is not an appropriate ground of appeal on a point of law because it goes to the merits of the decision and the way the Tribunal assessed the evidence before it.  It was urged on me that the Tribunal was entitled to consider the evidence of the Tenant and the Landlord on the Tenant's allegation of breach of obligation and reach a conclusion based on its assessment of that evidence. As stated in Lyaba:

 

"the assessment of the evidence is quintessentially a matter for the Tenancy Tribunal."

 

184.   I was satisfied to view the videos identified to me because I agreed with the Tenant's submission that just because the assessment of evidence is a matter for Tribunal does not mean a finding made against the weight of the evidence could never be subject to challenge as an error of law.  Patently there may well be circumstances where a finding is so lacking in evidential support that it may be amenable to a challenge on a point of law as being one which no reasonable decision maker could arrive at.

 

185.   Having viewed the contested videos and considered the evidence before the Tribunal as apparent from the transcript, I am satisfied that the videos do little more than show that which had already been given in oral evidence as recorded on the transcript and not, in fact, disputed by the Landlord.

 

186.   In summation, the evidence establishes that the Landlord attended at the dwelling on a small number of occasions in June, August and September, 2023 (perhaps 3  in total) to inquire about the Tenant's intentions.  The later visits did not go well.  The Tenant contends the attendance of the Landlord and his remonstrations and behaviour vis a vis the Tenant amounted to harassment and it was freely accepted by the Landlord during the RTB process that exchanges were heated but that the Landlord was frustrated, worried and stressed by the situation he found himself in.  Separately, the Tenant also maintained that the Landlord had instructed a neighbour to spy on him but this allegation was made on the simple basis that a neighbour reported seeing a person moving out.

 

187.   It does not seem to me that the evidence in its totality establishes that the Tribunal's decision that there was no breach of Landlord's obligations was unsustainable as one which no reasonable decision maker could make.  The exchanges amounted to little more than the Landlord asking why more tenants were being moved in and placing a foot in the doorway to prevent the door being closed in his face on one occasion, events occurring in a context where a notice of termination had been served, a dispute referred to the RTB and the Landlord's consent to new occupants moving in being required under the Lease not having been sought.

 

188.   Having assessed all the admissible evidence, the Tribunal made a finding that the Landlord's neighbour was entitled to attend the Dwelling in circumstances where landscape work was being carried out which would affect the neighbour's property.  The Tribunal did not accept the Tenant's contention that the neighbour was monitoring the Tenant.  I am satisfied that this was a conclusion which was open to the Tribunal on the evidence which had been advanced.

 

189.   Furthermore, the Tribunal was satisfied when asking the Tenant what endeavours had been made to find alternative accommodation and to ascertain who else was living at the Dwelling or why the Tenant was advertising for new people to move in, the Landlord asked reasonable questions.  In relation to advertising a room to let the Tribunal was satisfied that the Landlord had a concern that the Tenant was continuing to lease or rent out rooms which would have suggested that the Tenant had no intention of moving out on the termination date.  It seems to me that it was open to the Tribunal to conclude that the Landlord could legitimately raise issues with the Tenant in this regard without being treated as in breach of an obligation to allow peaceful enjoyment.

 

190.   A degree of frustration on the part of the Landlord is understandable and while there are limits to what might be tolerated as an expression of frustration, it was within the Tribunal's sphere of competence to determine whether that limit had been transgressed on the facts of this case.  Crucially, no illegal eviction occurred and was not alleged.  It is particularly noteworthy that once complaint was made to the Gardaí, the Landlord did not attend again at the dwelling, electing to press instead for an early resolution of the RTB dispute.

 

191.   While the Tenant claims to have felt distress and trauma because the Landlord continued to press the Tenant as to when he was leaving the dwelling up to September, 2023 and challenged him as to why he was seeking to move in new tenants at a time when a notice of termination had been served and did not await the outcome of the RTB process, it was open to the Tribunal to conclude that the evidence does not establish that any serious act occurred such as to warrant a finding of breach of landlord duty.  There is no evidence of any contact other than through the RTB process from September, 2023.  In all the circumstances, the Tribunal's conclusion that no actionable breach of Tenant's rights had been established could not in my view be considered unsustainable.

 

192.   I am satisfied that it was open to the Tribunal, as an expert body familiar with landlord and tenant disputes, viewing the circumstances in the round, to conclude that the Landlord's behaviour did not amount to a breach of the Tenant's right to peaceful occupation of the dwelling and did not establish an entitlement to a finding of breach of tenant rights.  I cannot conclude that such a finding was unreasonable in all of the circumstances.  On the facts of this case, the Tribunal was entitled to make a finding that the Landlord did not breach his obligations based on the material before it.  In the absence of error of law in the approach to the assessment of the evidence, the decision on whether a breach of Landlord's obligations is established or not is a matter entirely for the Tribunal.

 

Miscellaneous

 

193.   It is appropriate that I address the Tenant's application, on his feet, to be allowed to initiate proceedings against the RTB by way of judicial review should I determine that arguments he advanced ought properly to have been pursued by way of public law proceedings against the RTB.  While a degree of latitude is warranted in proceedings involving lay litigants, it is not for me to construct an arguable case for the Tenant just because he is not legally represented.  No coherent basis for applying for leave to proceed by way of judicial review was identified by the Tenant and there was no formal application before me.

 

194.   It is for the moving party to identify grounds of challenge and present those grounds to the Court in appropriately constituted proceedings issued within time.  This has not occurred in this case.  As I observed to the Tenant during the hearing, time limits apply to the institution of judicial review proceedings under the Rules of the Superior Courts.  The decision impugned as vitiated by error of law was notified to the Applicant more than a year ago.  Opposition papers were delivered in September, 2024.  Any application now would be out of time and would not be permitted to proceed absent evidence demonstrating an entitlement to an extension of time in accordance with the Rules of the Superior Courts.

 

195.   Throughout this period the Tenant has continued to reside at the dwelling notwithstanding a finding made by the Tribunal that the Notice of Termination served on him operated to terminate his tenancy and he is overholding.  Permitting the bringing of fresh grounds of challenge in differently constituted proceedings, even where an application in this regard were properly presented before me (which it was not), would in my view be entirely contrary to the Landlord's constitutional right to an expeditious decision as a part of his personal right to access to the court.  In my view permitting such an application at this late remove raises a significant question of compatibility with the proper administration of justice and any court invited to grant leave would have to consider whether permitting such an application proceed at this remove would constitute an abuse of the court process.  A determination on this question, however, can only be made based on an application formally presented and properly grounded and no such application was before me.

 

CONCLUSION

196.    For the reasons given, the Tenant's appeal on a point of law must fail.  It has not been established that the Tribunal decision challenged in these proceedings has been vitiated by error of law.  Therefore, I dismiss this appeal. 

 

197.    Submissions may be made as to the form of the final order and I will hear the parties regarding any consequential order, if necessary, following the expiry of fourteen days from the electronic delivery of this judgment.  A date for mention for this purpose will be assigned unless I am otherwise notified through the Registrar that all matters have been agreed and an order may be made on consent.

 

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