A Supreme Court judge has concluded that excluding children under 18 from succeeding to a deceased parent’s residential tenancy is unconstitutional.
Ms Justice Iseult Donnelly delivered her judgment in a challenge brought by a boy identified as EW, whose mother was killed in 2023 when he was 14. They had lived together in an apartment rented from Clúid Housing Association under a Part 4 tenancy.
Section 39 of the Residential Tenancies Act 2004 allows certain relatives living in a property to continue the tenancy after the tenant dies. Children, stepchildren, foster children and adopted children qualify only if they are aged 18 or over.
After EW’s mother died, Clúid sought to terminate the tenancy because nobody qualified to succeed to it. EW now lives with his maternal grandparents. His aunt, who became his legal guardian, had indicated she was willing to live with him in the apartment.
The High Court rejected his constitutional challenge in July 2024.
In her Supreme Court judgment, Ms Justice Donnelly found that the correct comparison was between a child under 18 and an adult child who had been living with the deceased tenant. She said the constitutional recognition of children’s rights under Article 42A meant the age distinction required close scrutiny.
She concluded that excluding all minor children lacked a rational basis. The legislation already protects qualifying adult relatives and even allows decision-making arrangements for adults who lack capacity, yet makes no provision for a resident child under 18 following the death of a parent.
Ms Justice Donnelly would have declared section 39 inconsistent with the Constitution insofar as it excluded EW, holding that the distinction was arbitrary and irrational under the equality guarantee in Article 40.1.
The judgment itself notes that the Chief Justice delivered a majority judgment which criticised this analysis. The supplied decision is therefore Ms Justice Donnelly’s individual judgment and does not, by itself, establish the final majority disposition of the Supreme Court appeal.