The Court of Appeal has dismissed Eileen Daly’s appeal against an order giving Allied Irish Banks plc possession of premises on Pembroke Road, Dublin, where Daly relied on a 35-year lease granted after the bank’s mortgage.
The court held that the Residential Tenancies Act 2004 did not require the bank to serve a notice of termination on Daly. It concluded that the lease could not be asserted against the bank because the 1995 mortgage barred the borrower from granting a lease without the bank’s written consent, and the evidence did not establish that consent had been given.
The mortgage was granted by Richard Finbarr Fitzgerald on 1 June 1995. Daly’s lease was documented in an agreement dated 3 April 2002, with rent of €800 a month to be set off against a stated €800,000 debt owed to her by Fitzgerald. The bank said it had not consented to the lease. Daly said she had been told that the bank had consented, but produced no supporting documentation. The Court of Appeal described her account as hearsay and found it insufficient to require the possession claim to be sent for a full hearing.
The bank began High Court possession proceedings in 2019. In April 2020, the High Court found the bank entitled to possession. After Daly sought an opportunity to participate, the court gave her time to make submissions and revisit that decision. Following a second hearing in March 2021, the High Court again ordered possession, allowing a 28-day stay, or a stay pending further order of the Court of Appeal if an appeal was brought.
The Court of Appeal said the High Court had given Daly a full opportunity to present her case, so the initial dispute about service did not invalidate the result. It also held that, for a mortgage created before the 2009 law reform, a lease granted without required mortgagee consent does not create a landlord-tenant relationship between the mortgagee and tenant. Without such a relationship, the 2004 Act’s termination notice rules did not apply. The court also noted that Daly had not lived at the premises; the evidence was that third parties occupied it.
The court rejected other grounds raised on appeal, including complaints about demand and the detail of the bank’s claim, because they had not been raised in the High Court and no exception was warranted. It did not alter the High Court costs order, which applied only from when Daly began participating. Its provisional view was that the bank should receive the appeal costs; Daly had 14 days to seek a short hearing on that issue. The judgment records the agreement of the other two Court of Appeal judges.