High Court: Tenant of repossessed property given opportunity to reformulate claim

About this case:

• Citation:
  [2018] IEHC 623
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

While accepting that Promontoria was not the woman’s landlord, Mr Justice Senan Allen said that there were issues to be determined regarding the woman’s requirement to deliver actual possession of the property, or whether Promontoria’s entitlement to enforce its security was subject to the woman’s tenancy with her original landlords.

Background

In 2005, Mr Keith Doyle and Mrs Margaret Doyle bought a property in Ballymun, Dublin. The purchase was funded by a loan from Ulster Bank Ltd, secured by a charge on the property.

Ms Valerie Hayes submitted that she was in actual possession of the property from around 2005, and that Mr and Mrs Doyle, to the knowledge of Ulster Bank, bought the property as a buy to let and so consented to and acquiesced in the letting to Ms Hayes.

Order for possession

In 2013, Mr and Mrs Doyle got into difficulty with their loan, and Ulster Bank issued a Civil Bill for possession in the Dublin Circuit Court. In March 2015, the Circuit Court made an order for possession, which Ms Hayes submitted was subject to her tenancy.

Mr Justice Allen explained that Ms Hayes ‘did not avail of the opportunity made available to her… to make the case in the Circuit Court that she was in possession of the property as a tenant of Mr and Mrs Doyle, with the consent of Ulster Bank and that she should not be disturbed’. Mr Justice Allen said that she was ‘entitled to make the case that whatever order the Circuit Court might make should not affect her rights’.

In June 2015, Ulster Bank wrote a letter to ‘The Tenant’, rather than to Ms Hayes. The letter stated that the property was subject to a repossession order and that it would be sold by the bank. Ms Hayes “treated this correspondence as a putative termination of her tenancy”, stating that it advised her to vacate the premises within 112 days, and sought to make an invalid notice of termination case to the Private Residential Tenancies Board (PRTB), naming Ulster Bank as the respondent.

The PRTB held that it did not have jurisdiction; a decision which was affirmed by the Circuit Court in January 2016. Mr Justice Allen said that this was a direct consequence of the decision that Ulster Bank was not the landlord.

In the meantime, Ulster Bank assigned its charge over the property to Promontoria (Finn) Ltd. Ms Hayes complained that Ulster Bank refused to provide her with the name of the new charge holder, a move which Mr Justice Allen criticised stating that he did “not understand the reticence on the part of Ulster Bank” to identify Promontoria given that the transfer was a matter of public record by virtue of being registered in the Land Registry.

Claim not bound to fail

Ms Hayes brought proceedings against the Minister for the Environment, Community and Local Government, Ireland and the Attorney General, and Promontoria (Finn) Ltd. The judgment of Mr Justice Allen dealt with Promontoria’s application to dismiss Ms Hayes’ claim as against it on the grounds that it discloses no reasonable cause of action and is bound to fail.

Stating that the case made by Ms Hayes in the action was “at best ambiguous”, Mr Justice Allen said that on the one hand, Ms Hayes claimed to occupy the dwelling on foot of a valid Part IV tenancy which can only be terminated in accordance with the provisions of the Residential Tenancies Act 2004 and has not been determined, and on the other that she is left in a limbo situation. In addition, Ms Hayes claimed that her statutory rights were not altered by the order for possession, and yet claimed that she enjoyed no security of tenure, being “vulnerable to enforcement action” and living “in fear that her home will be repossessed without notice”.

The primary relief sought by Ms Hayes’ was a declaration that Promontoria was the landlord of the premises, but Mr Justice Allen held that Promontoria was entitled to the benefit of the PRTB’s finding that Ulster bank was not the landlord.

Mr Justice Allen said he was unconvinced that the proceedings were necessary, or that the High Court was the proper forum; however he was not satisfied that the claim was bound to fail.

Finding that there was an issue to be determined as to whether the Circuit Court order required Ms Hayes to deliver actual possession of the property, or whether Promontoria’s entitlement to enforce its security was subject to Ms Hayes’ tenancy with Mr and Mrs Doyle; Mr Justice Allen gave Ms Hayes the opportunity to reformulate her claim.

• by Seosamh Gráinséir for Irish Legal News