The court held that the Residential Tenancies Act 2004 provided that a landlord could not terminate a Part 4 tenancy while a statutory appeal was pending before the High Court.

In reaching this decision, the court rejected an argument by the landlords that the tenant’s appeal was “doomed to failure from the outset” and that they should therefore be allowed to retake possession. The court stated that a landlord was not entitled to pre-empt the outcome of a statutory appeal.

Background

The tenant, Mr Reginald Carroll, entered into a Part 4 Tenancy will the landlords, Mr Terry Rowland and Mrs Margaret Rowland in March 2020. The landlords later served a notice of termination on Mr Carroll on the basis of anti-social behaviour. The tenant challenged the termination.

However, in June 2021, the RTB held that Mr Carroll had acted in an anti-social manner and issued a determination order for the termination of the tenancy. The tenant appealed the decision to the High Court within the 21-day statutory period.

Despite giving notice of the appeal to the landlords, they subsequently entered the property and changed the locks to deny access to the tenant. There was an altercation between Mr Carroll and Mr Rowland in which the gardaí were called.

Subsequently, the tenant made an ex parte application to the High Court, which granted an interim injunction to allow Mr Carroll to immediately retake possession of the property. However, Mr Rowland failed to deliver possession to the tenant and a further application for injunctive relief was made to the court two days later. In all, it took six days for Mr Rowland to comply with the court order.

The tenant’s application for an interlocutory injunction was opposed by the landlords, who issued their own motion seeking to set aside the interim injunction. The main point raised by the landlords was that the tenant’s appeal had very little prospect of success and accordingly, they should be entitled to retake possession. The landlords also claimed that the tenant had done a significant amount of damage to the property and that the court should exercise its equitable jurisdiction to refuse the injunction.

High Court

Delivering judgment in the case, Mr Justice Garrett Simons began by examining the statutory regime contained in the 2004 Act. In particular, the court considered section 86 and 123 of the 2004 Act.

Section 86 provided that a termination of the tenancy concerned may not be effected pending the determination of a dispute that has been referred to the Board, while section 123 provided that a determination order would be binding unless a statutory appeal was brought by the tenant.

The court held that the combined effect of these statutory provisions was that a landlord may not lawfully terminate a Part 4 tenancy where a statutory appeal had been made to the High Court within time.

The court rejected the landlord’s submission that the injunction should be refused based on the merits of the appeal. The court held that the only issue in the application was the entitlement of the landlords to enter the dwelling. The objective of the court was to put in place measures which served the balance of justice prior to the appeal being heard, the court said.

In determining the balance of justice, the court referred back to sections 86 and 123 of the 2004 Act and stated: “It follows, therefore, that a landlord is not entitled to pre-empt the outcome of a statutory appeal by demanding that the High Court put him back in possession of the dwelling and allowing him to exclude the tenant.”

As such, the underlying merits of the appeal did not arise in the present application for interlocutory relief. The effect of the legislation was to place a statutory stay on a termination for which an appeal was pending, the court said.

The court noted that a landlord was entitled to contests the merits of an appeal by bringing a motion to strike out an appeal in limine if it was frivolous or vexatious. However, no such application was before the court.

The court further held that the affidavit evidence did not come close to suggesting that there was a real risk of damage to the property before the appeal hearing. Taking the landlords’ evidence at its height (which was strongly contested by the tenant), the damage had already occurred and there was no evidence that further harm would be caused by the tenant.

The court also held that weight had to be given to the landlords’ unlawful entry to the property and to the failure to comply with a High Court order for several days. As such, this was not a case which justified the court to use exceptional jurisdiction to refuse the tenant’s application.

Conclusion

The court granted the tenant’s injunction application and refused the landlord’s motion to dismiss the interim injunction. The court made a formal order that the landlords were not to interfere with the tenant’s possession of the property. The court also required an undertaking as to damages from the tenant for any harm to the property before the appeal.