Kelly v Residential Tenancies Board (Approved)

Factual and Procedural Background

This appeal arises from a determination order made by the Residential Tenancies Board ("RTB" or "Tribunal") on 10th January 2024 under the Residential Tenancies Act 2004, as amended ("the 2004 Act"). The dispute concerns a residential tenancy at a property located at 52 Morehampton Road, Dublin 4, let by the notice party, Miracove Holdings Limited ("the notice party/landlord"), to the appellant under a tenancy agreement dated 27th November 2019.

The RTB had determined that the Notice of Termination served by the landlord on 1st June 2021, with a termination date of 16th January 2022, was valid. The RTB ordered the appellant to vacate the property within 42 days of the determination order and to pay rent arrears up to the jurisdictional limit of €60,000. The tenancy was a Part 4 tenancy under the 2004 Act, which can only be terminated on specified grounds, including the landlord's intention to sell the property within a statutory period.

The appellant challenged the RTB's finding that the landlord had a bona fide intention, as of the date of the Notice of Termination, to enter into an enforceable agreement for the sale of the property within nine months after the tenancy termination date. This appeal seeks to cancel or vary the RTB's validation of the Notice of Termination.

The appellant also contended that the statutory declaration accompanying the Notice of Termination, sworn by a director of the landlord company, was insufficient evidence of the landlord's intention, especially given the absence of direct oral evidence from persons with personal knowledge at the relevant time.

The RTB responded with affidavits and argued that sufficient evidence supported its findings, including the statutory declaration and the direct evidence of a current company director who could "follow the files".

Legal Issues Presented

1. Whether the RTB erred in law in finding that the landlord had a bona fide intention, as of 1st June 2021, to enter into an enforceable agreement for the sale of the property within nine months after the termination date of 16th January 2022, pursuant to section 34, paragraph 3 of the 2004 Act.
2. Whether the statutory declaration accompanying the Notice of Termination constituted sufficient evidence of the landlord's intention.
3. Whether the RTB properly applied the statutory scheme and relevant case law in validating the Notice of Termination.
4. Whether the presence of a Lis Pendens registered by the tenant and ongoing specific performance proceedings affected the validity of the landlord's stated intention to sell.

Arguments of the Parties

Appellant's Arguments

• The RTB erred in law by validating the Notice of Termination despite insufficient evidence that the landlord had a genuine intention to sell within the statutory period.
• The statutory declaration of the landlord's director was insufficient evidence, particularly as no direct oral evidence was given by the declarant or any person with personal knowledge at the time the notice was served.
• The RTB wrongly relied on evidence from a director appointed after the Notice of Termination was served, who could not speak to the landlord's intention at the relevant time.
• The existence of an option agreement between the appellant and the landlord, coupled with specific performance proceedings and a Lis Pendens registered by the tenant, rendered it implausible that the landlord intended to sell the property within the nine-month period.
• The RTB erred in law by dismissing the tenant's reliance on the Lis Pendens as irrelevant to the landlord's intention.
• The RTB failed to give sufficient evidential weight to the fact that the property was not sold within nine months after the termination date.
• The appellant sought cancellation or variation of the RTB's determination order on the grounds outlined above.

Respondent's (RTB) Arguments

• The RTB found on the balance of probabilities that the landlord had the requisite intention to sell the property within nine months after tenancy termination, supported by evidence including the statutory declaration and direct evidence from a current director.
• The statutory declaration, while not strong evidence, is admissible and given some evidential weight, especially considering the penal consequences of making a false declaration.
• The RTB has broad powers to act informally and fairly, including accepting hearsay and documentary evidence, and ensuring parties have opportunities for cross-examination and witness summons.
• The Lis Pendens and specific performance proceedings registered after the Notice of Termination do not negate the landlord's intention as of the date the notice was served.
• The RTB contended that the appellant's appeal challenged a factual finding supported by evidence, and thus the High Court should not interfere absent a legal error or absence of evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Deely v The Information Commissioner [2001] IEHC 91; [2001] 3 I.R. 439	Principles governing statutory appeals and the scope of appellate review on points of law.	Referenced as part of the general principles limiting appellate interference with findings of fact.
Sheedy v Information Commissioner [2005] IESC 35; [2005] 2 I.R. 272	Clarification of appellate jurisdiction on mixed questions of fact and law.	Supported the framework for reviewing RTB determinations on points of law.
Fitzgibbon v Law Society [2014] IESC 48; [2015] 3 I.R. 516	Standards for appellate courts in reviewing findings of fact and mixed questions.	Used to explain limits on appellate intervention absent legal error or no evidence.
Doyle v Private Residential Tenancies Board [2015] IEHC 724	Distinction between judicial review and statutory appeals; setting aside decisions vitiated by legal error.	Guided the court in assessing whether the RTB's decision was vitiated by legal error despite evidence supporting findings.
Marwaha v Residential Tenancies Board [2016] IEHC 308	Grounds for setting aside a tribunal determination on mixed questions of fact and law.	Supported the appellant's submission on misdirection in law or mistake in reasoning as grounds for appeal.
Hennessy v Private Residential Tenancies Board [2016] IEHC 174	Interpretation of statutory grounds for termination and evidential requirements.	Distinguished by the court; statutory wording was properly followed in the present case.
Gunn & Gunn v Residential Tenancies Board & Anor [2020] IEHC 635	Assessment of evidence for landlord's intention to sell within statutory period; evidential weight of statutory declarations.	Referenced for the evidential status of statutory declarations and the statutory period change from 3 to 9 months.
Stulpinaite v The Residential Tenancies Board [2021] IEHC 178	Evidential status of statutory declarations and tribunal powers to admit hearsay and documentary evidence.	Supported the court's view on the admissibility and probative value of statutory declarations and the informal tribunal process.
Web Summit Services v RTB [2023] IEHC 634	Scope of statutory appellate jurisdiction and when appellate courts may interfere with tribunal findings.	Confirmed that appeals may only succeed if no evidence supports findings or if inferences are unreasonable.
Whelan & Ors v AIB & Ors [2014] 2 I.R. 199	Standard for appellate courts in setting aside findings of fact based on evidence.	Applied in assessing whether the RTB's findings were reasonably supported by evidence.
Probets v Glackin [1993] 3 I.R. 134	Rules on proof of contents of statutory declarations in court proceedings.	Distinguished by the court as relevant to courts but less so to the informal statutory tribunal process.
Northern Bank Finance v Charlton [1979] I.R. 149	Appellate standards for setting aside factual findings and proof of mental states by inference.	Guided the approach to assessing evidence of intention and the limits of appellate interference.

Court's Reasoning and Analysis

The court carefully reviewed the statutory framework governing termination of Part 4 tenancies under the 2004 Act, particularly section 34 and the accompanying Table which permits termination where the landlord intends to sell the property within nine months after tenancy termination.

The court acknowledged the appellant's challenge to the sufficiency of evidence supporting the landlord's intention to sell. It considered the statutory declaration sworn by a director of the landlord company at the time of the Notice of Termination, noting that while such declarations are not strong evidence and may raise issues of self-corroboration, they are admissible and carry some evidential weight due to penal consequences for falsehoods.

The court also considered direct evidence from a current director, who, although appointed after the Notice of Termination, had authority to act on behalf of the landlord and access to company records, thus providing supplementary evidence of the landlord’s continuing intention to sell.

The court rejected the appellant's argument that the registration of a Lis Pendens and ongoing specific performance proceedings undermined the landlord's intention. It found that these factors arose after the Notice of Termination and did not negate the landlord's intention as of the relevant date.

Importantly, the court emphasized the legislative context, including the 2019 amendments extending the period from three to nine months to allow landlords a realistic timeframe to secure enforceable sale agreements. It recognized the balancing act in the legislation between tenant protections and landlords' rights to sell at market value.

The court applied established principles limiting appellate interference to cases where there is no evidence to support findings or where legal errors or unreasonable inferences occur. It concluded that the RTB's findings were supported by evidence and that the inferences drawn were reasonable.

The court also noted the informal nature of the RTB proceedings and its broad powers to admit hearsay and documentary evidence, provided fairness is maintained, and that the appellant had the opportunity to challenge the evidence.

Holding and Implications

The court DISMISSED the appellant's appeal against the RTB determination order dated 10th January 2024.

The effect of this decision is that the Notice of Termination served by the landlord on 1st June 2021, terminating the tenancy on 16th January 2022, is valid. The appellant is required to vacate the property within the time prescribed by the RTB order and to pay rent arrears as directed.

No new legal precedent was established. The decision confirms the application of existing principles regarding the evidential weight of statutory declarations, the scope of the RTB's powers, and the limits of appellate review on questions of fact and mixed fact and law in the context of residential tenancy terminations under the 2004 Act.