The High Court has declined all relief sought by a tenant challenging a Residential Tenancies Board determination that a notice ending her tenancy was valid.
Mary Duniyva appealed under section 123(3) of the Residential Tenancies Act 2004, which permits an appeal to the High Court on a point of law. In a judgment delivered on 12 October 2017, Mr Justice Max Barrett stressed that the appeal was not a rehearing of the original dispute.
The Board’s determination order, issued on 12 April 2017, found the notice served by the landlords on 3 November 2016 valid. The stated basis for termination was that the landlords required the dwelling for their grandson, who was attending college and wanted to live closer to where he studied.
Duniyva argued that the Tribunal had misapplied the statutory requirement that a landlord “requires” the property. The judge said the requirement must be essential or very important rather than merely desirable, and must be genuine. He found the Tribunal had considered both the landlords’ statutory declaration and the grandson’s direct evidence, and had concluded that the requirement was bona fide. The High Court said it was not being asked to decide whether the declaration or broader facts were sufficient in themselves; its task was to determine whether the Tribunal could lawfully reach its conclusion. It found no error of law.
The judge also rejected arguments that the termination notice interfered with Duniyva’s right to peaceful and exclusive occupation, or that the Tribunal was biased and denied her a fair hearing. He said she had been given an opportunity during a hearing lasting about two and a half hours to present evidence, cross-examine the landlords’ witnesses and make submissions.
A claimed constitutional right to accommodation or housing was raised only in oral submissions and was not developed. The judge observed that there is no express constitutional right to universal State provision of housing, while leaving open whether a qualified, unenumerated right might be recognised in a future case. He said no such right could be used in this appeal to set aside the Tribunal’s decision.
The High Court declined all the reliefs sought. The judgment records the tenant’s circumstances and the court’s sympathy, but its decision was confined to the legal issues raised by the appeal.