The High Court has refused a tenant’s appeal against a Residential Tenancies Board determination that a notice ending her Ballsbridge tenancy was valid.
The appeal, brought under section 123 of the Residential Tenancies Act 2004, concerned a notice served on 25 March 2019. The landlord said he intended to sell his interest in the property within three months of the tenancy ending. The RTB’s Tenancy Tribunal upheld the notice, and the Board issued a Determination Order on 5 December 2019. The tenant appealed to the High Court on points of law.
The tenant argued that the Tribunal should have summoned the landlord to give evidence, allowing her to question him about whether his stated intention was genuine. She also challenged the evidence supporting that intention and argued that section 35A, which concerns sales involving ten or more units, applied.
The court noted that the landlord had previously served a notice based on refurbishment plans. The tenant relied on evidence that, as late as February 2019, the landlord’s letting agent had said refurbishment work was still intended, while also helping a sales agent prepare the properties for marketing. The landlord did not give evidence at the Tribunal hearing. His letting agent gave evidence, and documents included a statutory declaration and records of the properties being marketed and receiving offers.
The court said the evidence raised a sufficient question about the landlord’s intention to shift the burden of proof to him. It nevertheless found that the Tribunal had substantial evidence supporting its conclusion that he intended to sell when the notice was served. The judge said a statutory declaration could be considered as evidence of intention, but was not presumptive or conclusive and was not strong evidence on its own.
The court also rejected the argument that the tenant had been denied the chance to question the landlord. She had not asked the Tribunal to summon him or sought a subpoena, despite being told she could request a witness. The Tribunal was entitled to rely on documentary and hearsay evidence in its informal process, provided the hearing remained fair. The judge found no legal error or breach of natural justice warranting intervention.
Section 35A did not apply because only five units were occupied when the notices were served; the section applies to a sale of ten or more units within the prescribed period. The court also rejected the request to apply that provision through an inherent jurisdiction. It refused the orders sought in the appeal. The parties were given 14 days from receipt of the electronic judgment to make written submissions on the final order and any ancillary matters.