The High Court has refused a judicial review application challenging the constitutionality of section 39 of the Residential Tenancies Act 2004, which sets out who may take over a Part 4 tenancy when a tenant dies.
The case was brought by a 15-year-old boy, identified as EW, and his aunt, ZG, who is his legal guardian and next friend. EW had lived with his mother in a rented apartment. After she died in July 2023, no one qualified under section 39 to become the tenant. The landlord, Clúid Housing Association, sought to terminate the tenancy in September 2023.
The law allows certain people who lived with the deceased tenant to elect to take over the tenancy, including a spouse or civil partner, a qualifying cohabitant, an adult child and a parent. A child under 18 cannot take it over. A minor may continue living in the home if an eligible adult takes on the tenancy and allows the child to stay.
EW had been living with his maternal grandparents since his mother’s death, though he regularly visited the family home. His aunt said she was willing to move into it to care for him. The court noted she had not explained whether her current accommodation was suitable for him. A doctor’s letter said his wellbeing should be considered before the locks were changed, but did not state that it was in his best interests for him or his aunt to remain in the property.
The applicants argued that section 39 unlawfully discriminated against a minor child in a one-parent family and breached constitutional and European Convention rights. The judge accepted that the provision had an indirectly discriminatory impact: a minor living with a single parent could be excluded where no other eligible adult lived in the home, while an adult child in similar circumstances could qualify.
But Justice Bolger found that this difference was not arbitrary, capricious or irrational. She said the law recognises that minors have different rights and responsibilities from adults, and that a child’s accommodation after a parent’s death is to be provided by a guardian or the State, with any available assistance. The Constitution did not give the child or guardian a right to continue in this particular rented home.
The court also rejected the claims under Articles 40.3, 40.5 and 42A of the Constitution and the Convention claim. It held that the application had not established that section 39 was unconstitutional or breached the Convention, and refused it.
The judge gave an indicative view that each party should bear its own costs. The matter was listed for 10:30am on 23 July 2024 for submissions on final orders, including costs. The judgment does not state what final costs order was subsequently made.