The High Court has affirmed a decision not to investigate a complaint about a licensed property services provider’s letter warning that locks would be changed if occupants did not make contact by a stated deadline.
Desmond Hayes appealed on a point of law under section 75 of the Property Services (Regulation) Act 2011 after the Property Services Appeal Board upheld the Authority’s refusal to investigate. The complaint concerned a letter sent on behalf of a receiver about a residential property in West County Dublin. It said the property would be deemed vacant and the locks changed if contact was not made by 5pm on 1 October 2021.
The Authority declined to investigate, finding the allegations did not fall within the Act’s definition of improper conduct. The Appeal Board affirmed that decision. Hayes argued that the provider had no lawful authority to threaten or carry out a lock change without a court order.
Justice Siobhán Phelan said the Authority and Board could not determine whether a receiver needed a court order to recover possession of a property in receivership. That issue fell outside their statutory remit. The appeal before her was narrower: whether the Board erred in concluding that service of the letter could not constitute improper conduct under the Act.
The judge said the bare contents of the letter did not establish that the provider was not a “fit and proper person”. The provider had told the Board that the letter was part of a process to establish whether the property was occupied and report back to the receiver. The court had no evidence before it supporting Hayes’s later assertion that the provider knew the property was occupied and sent the letter for an improper purpose. Those matters had not been included in the original complaint or put in evidence before the Authority or Board.
Justice Phelan said the mere sending of the letter could not, on its own, justify a finding that the provider was no longer fit and proper. She added that such a letter could constitute improper conduct in different circumstances, depending on the evidence, including evidence that a provider knew a property was occupied and acted on a false claim that it was vacant.
The court affirmed the Board’s determination under section 75(2)(a). The judge said she would hear the parties on consequential matters. The judgment did not decide whether the receiver could lawfully change the locks, and it did not find that such a letter could never amount to improper conduct.