The Court of Appeal has dismissed an appeal by Patrice McGuinness against an interlocutory injunction obtained by receiver Michael Kennedy over a residential property in Dublin. The court upheld the High Court’s conclusion that Kennedy had a strong case that McGuinness was not his tenant. It did not decide the underlying proceedings, which sought declarations about the receiver’s appointment and entitlement to possession.
The dispute arose after Brendan O’Kelly, the mortgagor, let the property without the mortgagee’s prior written consent, as required by the mortgage. O’Kelly and McGuinness maintained that she had a tenancy protected by the Residential Tenancies Act 2004. O’Kelly exhibited a 2015 letting agreement for a one-year term and evidence of utility bills. No agreement for the period from 2016 was produced, and the court said it was unclear whether one existed. The tenancy registration record confirmed registration but did not prove the tenancy’s terms.
After his appointment in April 2016, Kennedy wrote to the occupiers saying MARS Capital was the current landlord and asking that rent be paid to his office. McGuinness responded that she would not discuss her tenancy with him without a court order and insisted that O’Kelly was her landlord. The receiver and his solicitors repeatedly asked her to provide a tenancy agreement and offered to meet. She disputed their account of events and accused them of harassment. The Court of Appeal described her as having firmly and repeatedly rebuffed the attempts to engage.
The High Court granted the interim injunction in July 2018, requiring McGuinness to leave, with a three-month stay on condition that she pay rent to the receiver during that period. The High Court expressly said that this payment would not make her his tenant. A later stay was refused, and she had vacated by the appeal hearing.
The Court of Appeal said the governing question was whether a landlord-tenant relationship existed between McGuinness and the receiver. Applying the principles in Fennell v N17 Electrics Ltd, it found at least a strong argument that a lease made without the mortgagee’s required consent would not bind the receiver, and that the receiver’s initial letter had not created a new tenancy because McGuinness rejected that relationship. It considered the Residential Tenancies Act arguments dependent on first establishing a tenancy with the receiver; it agreed with a further analysis by Collins J on section 59.
The court dismissed the appeal and upheld the High Court’s conclusion at the interlocutory stage. It did not finally determine the tenancy’s validity or the claims in the substantive proceedings.