The Court of Appeal has dismissed Valerie Hayes’s appeal over her claim that Promontoria (Finn) Limited became her landlord after obtaining the benefit of a possession order against the owner of the Dublin home she rented.
The judgment, delivered by Ms Justice Baker on 9 March 2020, upheld the High Court’s conclusion that the claim as pleaded against Finn was bound to fail. The court held that a possession order did not, by itself, create a landlord and tenant relationship between the lender and Ms Hayes.
Ms Hayes had occupied a home at Santry Cross, Ballymun, since 2006 as tenant to its registered owner. Ulster Bank, which held a charge over the property, obtained a Circuit Court possession order against the owner and his wife in March 2015. Ms Hayes was not a party to that case, though the civil bill was served on her as a person in possession. She did not attend and has not disputed the order’s validity.
After Ulster Bank declined to treat her as its tenant, Ms Hayes complained to the Residential Tenancies Board. The Board declined jurisdiction, finding that it was not satisfied Ulster Bank was her landlord. The Circuit Court upheld that decision in January 2016. That ruling was not appealed or challenged by judicial review.
Finn later acquired Ulster Bank’s loan and security. In her proceedings, Ms Hayes sought declarations that Finn should be treated as her landlord under the Residential Tenancies Act 2004 and that her tenancy protections could be enforced against it. Finn argued that the earlier Circuit Court decision was final and prevented her from relitigating whether Ulster Bank was her landlord.
The Court of Appeal agreed that the Circuit Court’s determination was final and binding on that issue. It also considered the legal argument and held that the 2004 Act did not create a contractual relationship between a tenant and a landlord’s charge holder. Obtaining possession made a mortgagee entitled to receive rents and profits, but did not transfer ownership of the property or extinguish the owner’s interest.
The court distinguished that conclusion from a separate possible claim: a lender’s security might be subject to a tenancy in some circumstances, such as where consent had been given to the letting. The court said such a claim was not bound to fail if properly pleaded, and it was not necessary for Ms Hayes to establish that Finn was her landlord to advance it.
The appeal concerned Finn’s motion to dismiss the claim, not a final trial of all issues. The High Court had refused that motion and allowed Ms Hayes to seek permission to amend her statement of claim. The Court of Appeal did not interfere with that direction and dismissed the appeal. Baker J proposed that any amendment motion be delivered within a specified time, subject to hearing from the parties.