The High Court refused the Private Residential Tenancies Board’s application to overturn a Circuit Court ruling that it could not hear a management company’s claim for service charges against an apartment leaseholder. The court held that, under the Residential Tenancies Act 2004 as it stood when the Circuit Court ruled, the apartment was covered by the Act and the dispute could not proceed in court.
The dispute concerned apartment 62 at Elmfield Court, Ninth Lock Road, Clondalkin. Gary Mallon held it under a 500-year lease. S&L Management Company Limited, acting for the landlord, obtained a District Court judgment for €1,862.56 in service charges on 11 April 2008. Mallon appealed.
On 3 April 2009, Circuit Court Judge Jacqueline Linnane vacated the District Court order, concluding that the courts had no jurisdiction over the dispute. The Board sought judicial review, asking the High Court to quash that decision and to require the Circuit Court to deal with the dispute. The Board argued that the Act was not intended to cover owner-occupied apartments held under long leases, and that applying it would produce impractical results. Mallon argued that the Act applied to every dwelling subject to a tenancy unless one of its listed exceptions applied, and that the court could not add an exception the Oireachtas had not enacted.
Mr Justice Declan Budd agreed with Mallon’s interpretation. He said the apartment did not fall within the exclusions in section 3(2) of the 2004 Act. The court could not create another exclusion for long leases to address what might have been a drafting omission; that was for the legislature. The Act’s section 182 restricted court proceedings over disputes that could be referred to the Board, subject to exceptions that did not apply to this claim.
The judgment also addressed the Board’s earlier position that an unregistered tenancy could not be referred to it. The Circuit Court had recorded that a tenant could refer a dispute even where the tenancy was unregistered, and the High Court noted that the Board had conceded this point.
The High Court refused the reliefs sought by the Board. It said it would hear counsel on the appropriate orders. The judgment noted that legislation enacted on 15 July 2009 had since amended the Act to exclude tenancies longer than 35 years. That later change did not alter the court’s conclusion about the law applicable when the Circuit Court made its decision.