The High Court has allowed a landlord’s appeal on a point of law over whether rent due for a tenant’s unserved notice period could be reduced because the dwelling was re-let before that period ended.
Mr Justice Meenan ruled that section 37(4) of the Residential Tenancies Act 2004 preserved the tenant’s liability for rent covering the notice period. He held that this was a specific statutory entitlement, not damages subject to a duty to mitigate.
The case concerned a Part 4 tenancy of a dwelling at 17 Templemore Avenue, Rathgar, Dublin 6. The tenant, Colette Talbot, had been paying €2,400 a month after a rent increase in October 2014. She told the landlord’s wife in January 2018 that she planned to leave in early March, then confirmed in February that she would leave during the weekend of 10 March. She left on 10 or 11 March without serving the required notice, and rent was in arrears.
The landlord re-entered and inspected the dwelling on 13 March. He re-let it from 1 July at €3,500 a month. The Residential Tenancies Board Tribunal found the tenancy had ended by 12 March and that the landlord was entitled to 84 days’ notice, subject to a duty to mitigate losses. It awarded less than the full rent for that period. A separate dispute about the dwelling’s condition was not part of the High Court appeal.
The landlord argued that section 37(4) created a right to rent, rather than a claim for damages, and that the statute did not provide for a deduction when the dwelling was re-let. The Board submitted that the landlord’s re-entry effectively ended the lease, leaving a claim for damages subject to mitigation. It also argued that the landlord’s interpretation could permit double recovery.
The High Court rejected the Board’s interpretation. Justice Meenan said the statute did not state that the specified rent could be reduced, and that treating the provision as dependent on a fictional continuing lease would prevent a landlord from securing an empty dwelling during the notice period. He also said a Part 4 tenancy could not be terminated by the landlord’s re-entry under section 58.
The appeal was allowed. The judge said he would hear the parties on consequential orders and directed them to file written submissions within 14 days of judgment. The judgment did not itself specify those consequential orders.