The High Court has cancelled a Tenancy Tribunal determination that upheld a notice requiring tenants to leave a Wicklow town dwelling so it could be sold. The appeal succeeded on a point of law: the tribunal had not properly considered whether the owner intended to enter a binding sale agreement within the statutory three-month period.
Mr Justice Garrett Simons delivered the judgment on 18 December 2020. The tenants, Brendan Gunn and Erika Gunn, had occupied the dwelling since September 2012 under a Part 4 tenancy. The registered owner was David Warrick, although earlier tenancy documents and a Residential Tenancies Board registration named his wife, Laura Harding, as landlord. The High Court upheld the tribunal’s finding that Warrick was the landlord, saying the evidence allowed that conclusion and supported the inference that Harding had acted as his agent.
Warrick served a notice dated 18 December 2018, stating that the tenancy would end on 10 June 2019 because he intended to enter an enforceable agreement to transfer his interest in the property. The notice was accompanied by a statutory declaration. The tribunal later found the notice valid, relying on steps including appointing an estate agent, putting up a “For Sale” sign, attempting to arrange photographs and instructing a solicitor to obtain title deeds.
The tenants argued that the evidence did not establish the required intention to sell within three months after the tenancy ended. The High Court agreed. Under the law applying when the notice was served, the landlord had to intend to enter an enforceable agreement within three months of termination. An intention to sell at some point was not enough, and the required intention had to exist when the notice was served.
The evidence before the tribunal indicated that Warrick had been advised to market the property with vacant possession, after the tenants left. The estate agency agreement ran for 18 months, and the agent had not completed a full valuation. The court said later steps relied on by the tribunal reflected a changed intention, rather than Warrick’s intention on 18 December 2018. The tribunal had therefore erred in treating those steps as proof of the required intention at the relevant time.
The court also addressed the RTB’s argument that the statutory declaration could establish the landlord’s intention. The tribunal had not relied on the declaration, so the RTB could not use it to supplement the tribunal’s reasoning on appeal. The court added that the declaration did not carry presumptive evidential status that would prevent a tenant from challenging the stated ground at an oral hearing.
The court directed that the tribunal’s determination be cancelled. It made no order to send the matter back, noting that the law had since changed the relevant period from three to nine months and did not apply retrospectively. The court said the landlord could serve a fresh notice under the current law if he wished. The parties were asked to seek agreement on costs; if they could not, they were directed to file written submissions.