The Court of Appeal has clarified the powers of the Circuit Court when landlords challenge sanctions imposed by the Residential Tenancies Board, ruling that such cases are not limited to reviewing the RTB for serious error.
The ruling arose from 20 appeals brought by Xerico Limited against RTB sanction decisions concerning alleged unlawful rent increases in rent pressure zones. Two Dublin properties were selected as pathfinder cases while the Circuit Court sought guidance on the correct scope of its appeal jurisdiction.
Ms Justice Faherty held that an appeal under section 148AA of the Residential Tenancies Act 2004 is an appeal "on the record". This means the Circuit Court must reach its own conclusion on the issues before it, rather than merely asking whether the RTB decision was vitiated by a serious or significant error.
The appeal mechanism also contains an important additional feature: the Circuit Court has statutory discretion to consider evidence or arguments whether or not they were previously presented to an RTB authorised officer or decision maker.
The court reached that conclusion after examining the structure of the RTB's enforcement process. An authorised officer investigates alleged improper conduct and prepares a final report for a decision maker. However, the legislation allows the decision maker to determine the matter without giving the landlord the final investigation report or inviting further submissions or an oral hearing.
In Xerico's cases, that was the procedure followed. The Court of Appeal found it difficult to reconcile an error-only appeal with a process in which a landlord may not have seen the material underpinning the final decision.
The ruling does not determine whether Xerico committed the alleged rent breaches or whether the individual sanctions should stand. Those issues return to the Circuit Court under the clarified appeal framework.
As Xerico largely succeeded on the legal issue referred, the Court of Appeal proposed awarding it the costs of the case stated unless a different costs order was sought.