About this case:

• Citation:
  [2023] IEHC 491
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

The court found that the Tribunal incorrectly determined that the tenant had “allowed” this behaviour to occur in circumstances where she was abroad at the time.

Delivering the judgment, Mr Justice Garrett Simons held that the Tribunal had incorrectly interpreted the word “allow” in relation to the anti-social behaviour. The court highlighted that this was a single incident and the tenant did not “allow” it as she had neither constructive, nor actual, knowledge of the behaviour.

Background

This was an appeal on a point of law from a determination of the Tenancy Tribunal of the Residential Tenancies Board, regarding a notice of termination served on grounds of anti-social behaviour.

Section 16(h) of the Residential Tenancies Act 2004 imposes an obligation on a tenant of a dwelling not to behave within the dwelling, or in the vicinity of it, in a way that is anti- social. The tenant must, further, not “allow” other occupiers or visitors to behave in a way that is anti-social.

A tenancy may be terminated where the landlord can establish, to the satisfaction of the Tenancy Tribunal, that a tenant, occupier, or visitor has engaged in behaviour that “constitutes” the commission of an offence. This is an “unusual provision”, the court said, as it purports to allow a public authority to reach a view on the guilt or innocence of an individual.

The tenant in this case argued several grounds. First, she objected to the admission of certain evidence before the Tribunal. Second, she challenged the meaning of “allow” in relation to other occupiers’/visitors’ anti-social behaviour. Finally, she queried the meaning and extent of what anti-social behaviour in the “vicinity” meant.

Tenancy Tribunal’s determination

A notice of termination was served by the landlord in December 2021, based on events from November 2021. According to the complainant, there was an altercation between his son and the tenant’s son.

The tenant herself had been away in England for a number of months, and her parents were minding her son. The tenant’s older son, R, allegedly came to the complainant’s house with 20 others and broke doors and windows, and damaged the complainant’s van.

The Tenancy Tribunal determined: “It is clear that the incident of the 21st November 2021 met both the above definitions of anti-social behaviour […] The incident did not occur in the dwelling, but certainly in the ‘vicinity’ of the dwelling”.

Further, the Tribunal found that the tenant ‘allowed’ the anti-social behaviour to occur, because her parents, placed in loco parentis, did not prevent the anti-social behaviour from occurring.

Points of law

1) Video evidence

The tenant objected, during the Tenancy Tribunal, to the introduction of video footage of the incident. However, the court determined, following Stulpinaite v Residential Tenancies Board [2021] IEHC 178, that the Tenancy Tribunal has the power to act on documentary evidence and on hearsay evidence.

Therefore, the Tenancy Tribunal was entitled, in the exercise of its discretion, to admit the video footage as evidence. Oral evidence, supplemented by the video evidence, indicated that the tenant’s son had been present and had threatened the complainant.

2) Meaning of ‘allow’ anti-social behaviour

The next point of law queried the proper interpretation of the term “allow” for the purposes of section 16(h) of the 2004 Act. This subsection imposes an obligation on a tenant not to allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in an anti-social way.

The Tenancy Tribunal interpreted the term “allow” as including a failure to prevent the anti-social behaviour from occurring. The Tribunal rejected an argument that the tenant could not be found to have allowed her son to engage in anti-social behaviour in circumstances where she had been absent in England on the date of the incident.

Rather, the Tenancy Tribunal found that the tenant allowed the anti-social behaviour to occur because her own parents, whom she had placed in loco parentis to the children, did not prevent the anti-social behaviour from occurring.

However, the court found that this interpretation of the term “allow” involved an error of law on the part of the Tenancy Tribunal. While accepting that “allow” involves both positive acts and omissions, the court noted that the person must have actual or constructive knowledge of the behaviour of the other person.

This case involved a single incident of anti-social behaviour, and there was nothing in the findings made by the Tenancy Tribunal to suggest that the tenant could reasonably have anticipated, or taken steps to prevent, this single incident.

Therefore, the Tenancy Tribunal erred in law in finding the tenant liable for the anti-social behaviour of her son.

3) Interpretation of ‘vicinity’

Finally, it was argued that the Tenancy Tribunal erred in law in concluding that two houses could be said to be within the same “vicinity” merely because they were located within the same housing estate.

However, following the Supreme Court in In the matter of Ward [1966] I.R. 413, the court found that “vicinity” was imprecise, and had the same meaning as “neighbourhood”.

Here, the evidence indicated that the two houses were located within the same housing estate, approximately five minutes’ walk apart. In these circumstances, there was no basis for saying that the Tenancy Tribunal erred in law in concluding that the complainant’s dwelling was in the vicinity of the tenanted dwelling.

Conclusion

Ultimately, the Tenancy Tribunal erred in law in its interpretation of the statutory term “allow”. As a result, the Tribunal erred in determining to uphold the validity of the notice of termination.

Accordingly, the appeal was allowed. An order was therefore made, pursuant to section 123 of the Residential Tenancies Act 2004, cancelling the determination order.

Iyaba v. Residential Tenancies Board [2023] IEHC 491