Judgment: 2023-06-19 · Court archive

High Court refuses adjournment in Clare property possession case

The court ruled that it, rather than the Residential Tenancies Board, must determine whether the second defendant can assert a tenancy binding on the plaintiffs. The underlying possession claim remains to be heard.

High Court · [2023] IEHC 309

Who, what, where, when and why

Who
  • James Anderson
  • Pepper Finance Corporation (Ireland) DAC (Plaintiff)
  • David Fitzgerald
  • Helen Fitzgerald (Defendant)
  • Garrett Simons (Judge)
What

The court ruled that it, rather than the Residential Tenancies Board, must determine whether the second defendant can assert a tenancy binding on the plaintiffs. The underlying possession claim remains to be heard.

Where

Places mentioned in the report

  • County Clare
When

Judgment:

Other dates in the report
  • 1 December 2015

    Ms Fitzgerald says her brother granted her a seven-year tenancy from 1 December 2015. She says she paid no rent for the first 14 months, then paid him for about four or five years. From late November 2021, she says, she was directed to pay a company called Newgrange and has since paid €600 monthly. She argues that she is a tenant entitled to continuing occupation and that no valid notice to terminate was served.

Why

Reasons reported in the judgment

The High Court has refused an application to pause possession proceedings over a property in County Clare while the Residential Tenancies Board (RTB) considers a tenancy dispute. It held that the High Court retains jurisdiction to determine whether the second defendant can assert a tenancy binding on the plaintiffs.

The High Court has refused an application to pause possession proceedings over a property in County Clare while the Residential Tenancies Board (RTB) considers a tenancy dispute. It held that the High Court retains jurisdiction to determine whether the second defendant can assert a tenancy binding on the plaintiffs.

The proceedings were brought by James Anderson, who says he was appointed receiver, and Pepper Finance Corporation (Ireland) DAC, which holds a charge over the property. They seek possession from David Fitzgerald, the registered owner, and Helen Fitzgerald. The underlying claim has not been decided.

Ms Fitzgerald says her brother granted her a seven-year tenancy from 1 December 2015. She says she paid no rent for the first 14 months, then paid him for about four or five years. From late November 2021, she says, she was directed to pay a company called Newgrange and has since paid €600 monthly. She argues that she is a tenant entitled to continuing occupation and that no valid notice to terminate was served.

The plaintiffs dispute that account. They say the mortgage terms prohibited leases without the lender’s prior written consent, and that the account described as “PFCI Newgrange EUR Collections” is maintained by Pepper Finance. They say the monthly payments were credited against the loan debt, not treated as rent. Whether a tenancy arose, including by estoppel, remains for determination in the possession proceedings.

Ms Fitzgerald applied to adjourn the case pending an RTB adjudication. The court assumed for the purpose of its decision, without deciding, that her RTB application had been reactivated; it had no formal confirmation that the RTB had reopened its file. The court also declined to consider additional 2021 emails filed after the hearing, finding that they went beyond the limited permission to complete the RTB-related exhibits and that the plaintiffs had no opportunity to respond. Ms Fitzgerald may seek permission to rely on that material at the substantive hearing, with an opportunity for the plaintiffs to reply.

Justice Garrett Simons held that the RTB’s statutory jurisdiction presupposes an existing or terminated tenancy. It cannot conclusively decide the threshold question of whether a valid tenancy ever existed. The High Court therefore retains jurisdiction, and the statutory provision restricting parallel court proceedings was not engaged. The court refused the adjournment and directed that the judgment be brought to the RTB’s attention.

The judge gave a provisional view that the plaintiffs should recover the motion costs from Ms Fitzgerald, but left her an opportunity to argue for a different order when the case next comes before the court for directions. The possession proceedings are to be readied for hearing, with further directions to address outstanding procedural steps.

Read the original court judgment

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