The High Court has allowed a tenant’s appeal against a Residential Tenancies Board ruling that had upheld a notice ending her tenancy over antisocial behaviour. The court cancelled the tribunal’s determination order, finding that the tribunal had misinterpreted the tenant’s legal duty to prevent behaviour by another occupier or visitor.
The appeal concerned a notice served by the Dublin Simon Community on 8 December 2021. The Tenancy Tribunal had found the notice valid after an incident on 21 November 2021 involving the tenant’s son and a neighbour’s household in the same housing estate. The neighbour told the tribunal that about 20 people came to his home, that his front door and two windows were broken and his van damaged. He said his family were frightened afterwards. The tribunal also viewed a video recorded by the neighbour’s wife.
The High Court rejected the tenant’s challenges to the tribunal’s handling of the video evidence, the civil standard of proof, the finding that the incident occurred within the dwelling’s “vicinity”, and an allegation of objective bias. The court said the video was admissible as corroborative material alongside the neighbour’s oral evidence. It also found no error in the tribunal’s conclusion that the two homes, at most a five-minute walk apart within the same estate, were in the same neighbourhood. The tribunal had confined its decision to the 21 November incident and did not rely on a separate, unproven allegation about 26 November.
The appeal succeeded on the meaning of “allow” under the Residential Tenancies Act 2004. The tribunal had reasoned that the tenant allowed the behaviour because her parents, who were caring for her children while she was away in England, did not prevent it. The High Court held that liability for failing to prevent another person’s behaviour requires the tenant to have actual or constructive knowledge of it. The tribunal found only one incident and made no finding that the tenant could reasonably have anticipated it or taken steps to prevent it.
The court said the law did not impose strict liability on tenants for the conduct of other occupiers or visitors. A tenant may be responsible where they permitted the conduct or failed to take reasonable steps to prevent foreseeable behaviour. The judgment did not establish that a single incident can never justify ending a tenancy; the court said an isolated incident could suffice where the tenant had reasonable grounds to anticipate it.
The High Court cancelled the tribunal’s 1 February 2023 determination order and declined to remit the matter, saying the tribunal could not lawfully uphold the notice on its findings. The judge gave a provisional view that the tenant should recover her costs from the RTB. Either party could seek a further hearing on costs by contacting the registrar within 21 days; the judgment does not state a final costs order.