Court of Appeal: Tenant who sublet apartment to students loses appeal against eviction

About this case:

• Judgment:
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Dismissing the appeal, Mr Justice Gerard Hogan dismissed the man’s fundamental complaint regarding the validity of the appointment of the receiver, and found that there were no arguable grounds of appeal to warrant the extension of time.

Factual background

Mr John Keon was the tenant of an apartment premises in Salthill, Co. Galway under a letting agreement with Joe McNamara as landlord, for the fixed term of two years from June 2012. The monthly rent was €400.00.

The landlord had mortgaged the premises to IIB Home Loans Ltd (now KBC Bank), and following default by the landlord, the Bank appointed Mr Mark Gibbs, as receiver over the assets secured by the mortgage, including the apartment at which Mr Keon was a tenant.

In October 2012, the receiver notified Mr Keon of his appointment and directed that that rent be paid to him.

Mr Keon did in fact make three payments of rent but did not pay any rent since February 2013.

Vacant possession

In March 2013 the receiver informed Mr Keon that he intended to sell the premises and required vacant possession for that purpose. Mr Keon then informed the receiver that the property had been sub-let to some University students and he requested that they be allowed to remain in possession until they had finished their examinations in May.

Mr Keon did not deliver possession in May 2013, and in January 2014 the receiver served a statutory form claiming that Mr Keon had failed in his obligations qua tenant by reason of the non-payment of rent and the unlawful subletting of the premises without the consent of the landlord.

Following a 14-day warning notice demanding rent in accordance with s. 67(3) of the Residential Tenancies Act 2004; and a notice of termination under s. 34 of the Residential Tenancies Act 2004; the receiver referred the matter to the Private Residential Tenancies Board for determination.

In June 2015, the Tribunal directed Mr Keon deliver up vacant possession of the apartment premises within fourteen days; €9,992.50 in respect of arrears of rent; and €1,000.00 in damages.

The formal determination order stated that:

“This determination order shall, on expiry of the period of twenty-one days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then, pursuant to s. 123 (3) of the Residential Tenancies Act 2004”.

The High Court

In the High Court, Ms Justice Marie Baker considered that the application to extend time fell to be considered under Ord. 84C of the Rules of the Superior Courts.

Justice Baker considered whether

Examining the explanations for the delay, Justice Baker did not think that any were satisfactory.

Justice Baker noted that the majority of the grounds related to an alleged want of fair procedures; particularly the Tribunal’s decision to admit documents establishing the appointment of the receiver and the entitlement of the Bank to appoint a receiver over the assets of the landlord.

Justice Baker observed that the landlord’s interests would be prejudicially affected if time were extended; and concluded that the appellant had not made out any good and sufficient reason why he should be permitted to appeal the decision of the Tribunal

In a reserved judgment in December 2015, Justice Baker refused to extend the time for the purposes of the s. 123(3) of the Residential Tenancies Act 2004 so as to permit Mr Keon to appeal on a point of law against the determination order which had been previously made by the Private Residential Tenancies Board.

Court of Appeal

Justice Hogan reiterated that the scope of the appeal under s. 123(3) of the Residential Tenancies Act 2004 was confined to a point of law.

The fundamental complaint before the Tribunal related to the validity of the appointment of the receiver, but the Tribunal found that the receiver had been validly appointed. Furthermore, the appellant did pay rent on three separate occasions to the receiver, a factor which was found to be highly relevant in the High Court.

In any event, it was not clear how that issue as to the validity of the appointment of the receiver would really be relevant given that s. 108(5) of the Land and Conveyancing Law Reform Act 2009 “provides protection to any person dealing with the receiver such that a person is not required to look behind that appointment.”

Justice Hogan found no arguable ground of appeal under s. 123(3) had been advanced.

Concluding that Justice Baker had correctly refused to grant the appellant an extension of time, Justice Hogan dismissed the appeal.