The High Court has ruled that Shay Murtagh Limited is entitled to possession of an apartment in Aisling Court, Killucan, and an order restraining trespass by Trevor Cooke and other occupants. The court said it would hear submissions on the terms of the order.
Ms Justice Siobhán Phelan’s judgment, delivered on 15 July 2022, concerned an appeal against interlocutory injunctions granted by the Circuit Court. The company had bought the apartment from a receiver in November 2021 under a contract stating that it was sold occupied and without vacant possession. The company’s ownership was registered in January 2022.
Cooke said he had rented the apartment from the former owner under a written agreement dated 19 October 2021. Two other occupants also relied on written tenancy agreements. They argued that the tenancies had not been terminated in accordance with residential tenancy law. The company said the agreements were not binding on it because the mortgage terms required the lender’s written consent to a lease, and there was no evidence that consent had been given.
Justice Phelan found that the company had established its ownership, but said ownership alone did not resolve whether the occupants could lawfully remain. She considered the company’s evidence about when the occupants moved in and alleged antisocial behaviour to be weak, citing the lack of direct knowledge and specific details. She gave little weight to claims that the occupants had been installed in January 2022.
The judge nevertheless found a strong case that the lender had not consented to the leases. Applying Court of Appeal and High Court decisions on unauthorised leases over mortgaged property, she concluded that the claimed tenancies were unlikely to bind the lender or receiver, and that the occupants were very likely trespassers in relation to the company’s interest. She said it remained possible that Cooke could establish consent at a full hearing, but considered that prospect very slim. The ruling was interlocutory; it did not finally determine the issue after a full hearing.
The court also considered Cooke’s health, recovery from addiction, work and risk of homelessness, and the constitutional protection of a home. Justice Phelan concluded that, weighing those circumstances against the rights of a private property owner, the owner’s rights outweighed the occupants’ interests and an order for possession and to restrain trespass was proportionate.
The Circuit Court had ordered possession in March 2022. The High Court’s conclusion followed the appeal hearing; the judgment states that submissions on the terms of the resulting order remained to be heard.