O'Gara v Residential Tenancies Board (Approved)

Factual and Procedural Background

This case concerns an appeal pursuant to section 123 of the Residential Tenancies Act 2004, as amended ("the 2004 Act"). The Appellant challenges a report of the Tenancy Tribunal dated 13 September 2023 and a Determination of the Respondent dated 6 December 2023. The Tribunal found that a Notice of Termination dated 8 September 2022, served by the Notice Party on the Appellant, was valid. The Notice required the Appellant to deliver possession of a leased property within 21 days. The Appellant contended that no tenancy existed between him and the Notice Party and that he had acquired title to the property by adverse possession due to continuous occupation without rent payment for over 15 years. The Appellant did not participate in the Tribunal hearing, maintaining that the Tribunal lacked jurisdiction as no tenancy existed.

The Notice Party purchased the property at an online auction on 19 May 2022, subject to an unknown tenancy. The Notice Party attempted to establish the existence of a tenancy through communications with the Appellant and inquiries with previous owners and the Residential Tenancies Board (RTB). Evidence before the Tribunal included hearsay from the previous owner regarding a tenancy commencing in 2007 with rent paid for approximately 12 to 18 months, and RTB records of tenancy registrations in 2007 and 2011. The Tribunal found the Notice of Termination valid and ordered possession to be delivered up.

Legal Issues Presented

1. Whether there was sufficient evidence before the Tenancy Tribunal to establish the existence of a tenancy between the Appellant and the Notice Party.
2. Whether the Tenancy Tribunal had jurisdiction under the 2004 Act to determine the validity of the Notice of Termination given the Appellant's claim of adverse possession and denial of tenancy.
3. Whether the Notice of Termination dated 8 September 2022 was validly served and complied with statutory requirements.
4. The scope and standard of review of the High Court on an appeal on a point of law from a Tenancy Tribunal determination under s.123 of the 2004 Act.

Arguments of the Parties

Appellant's Arguments

• The Appellant asserted that no tenancy existed between him and the Notice Party, as he had occupied the property continuously for over 15 years without paying rent and not under any tenancy agreement.
• He claimed ownership of the property by adverse possession, denying the jurisdiction of the Tribunal and the Respondent to deal with the matter.
• He did not participate in the Tribunal hearing on the basis that the Tribunal lacked jurisdiction.

Notice Party's Arguments

• The Notice Party provided evidence that he purchased the property subject to a tenancy, although the terms were unknown at the time of purchase.
• He attempted to obtain tenancy details from the Appellant, who refused to acknowledge tenancy status.
• Evidence from a previous owner indicated a tenancy agreement existed from 2007 with rent initially paid.
• The Notice Party registered a tenancy with the RTB in July 2022 naming the Appellant as tenant and served a Warning Notice and Notice of Termination for non-payment of rent.
• The Notice Party argued the Notice of Termination was valid and the Respondent had jurisdiction to determine the matter.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fitzgibbon v The Law Society [2015] 1 IR 516	Principles governing appeals on points of law, including deference to findings of fact unless no evidence exists, and the narrow scope of appeals on points of law.	The court applied these principles to confirm that it cannot overturn findings of fact unless unsupported by evidence but can intervene if there is an error of law or no evidential basis for a finding.
Petecel v Minister for Social Protection [2020] IESC 25	Clarification on the narrow scope of appeals on points of law and the importance of statutory language in defining appellate jurisdiction.	The court referenced this to emphasize the limited nature of appeals on points of law under the 2004 Act.
Marwaha v Residential Tenancies Board [2016] IEHC 308	Principles on the role of the High Court in appeals on points of law from the RTB, including when the court may set aside Tribunal determinations.	The court adopted these principles to assess whether the Tribunal erred in law or drew unreasonable inferences from the evidence.

Court's Reasoning and Analysis

The court began by addressing the submission that the Appellant's lodging of the appeal constituted an acknowledgment of the Respondent's jurisdiction. The court rejected this, affirming that the Appellant consistently denied such jurisdiction due to the absence of a tenancy.

Applying the established principles from the cited case law, the court reviewed the evidence before the Tribunal. The evidence was largely hearsay from the Notice Party and previous owner, indicating a tenancy agreement existed in 2007, with rent paid for a limited period. RTB tenancy registrations from 2007 and 2011 were noted, but the court emphasized that registration does not create a tenancy.

The court found no evidence of a tenancy agreement between the Appellant and the Notice Party at the time the Notice of Termination was served in September 2022. The Notice Party's interactions with the Appellant were limited and did not establish a tenancy. The Appellant's denial of tenancy and assertion of adverse possession were uncontested by direct evidence.

Given the absence of evidence of an existing tenancy, the Tribunal lacked jurisdiction under the 2004 Act to determine the validity of the Notice of Termination. Termination can only relate to an existing tenancy, and without evidence of such, the Tribunal's finding was unsupported by evidence and legally erroneous.

Consequently, the court concluded that the Tribunal erred in law by finding the Notice of Termination valid and that the Respondent had jurisdiction to determine the matter.

Holding and Implications

The court ALLOWED the appeal, set aside the report of the Tenancy Tribunal dated 13 September 2023 and the Determination of the Respondent dated 6 December 2023, and remitted the matter back to the Respondent for a fresh hearing.

The direct effect of this decision is that the prior determinations regarding the validity of the Notice of Termination and possession order are nullified. No new tenancy determination was made, and no precedent was set beyond the correction of jurisdictional error in this case. The matter will be reconsidered by the Respondent with proper regard to the existence or otherwise of a tenancy.