The High Court has rejected a tenant’s claim that a company holding an assigned mortgage charge was her landlord, but has left open whether the company can enforce a possession order against her while she remains a tenant of the property’s owners.
In a judgment delivered on 9 November 2018, Mr Justice Allen considered the fourth defendant’s application to dismiss the claim against it as having no reasonable cause of action and being bound to fail. The application relied on the Rules of the Superior Courts or the court’s inherent jurisdiction.
The dispute concerns a Dublin 9 property bought by Keith and Margaret Doyle in 2005 with a loan from Ulster Bank, secured by a charge. Valerie Hayes says she has rented the property since at least January 2006 under a tenancy with the Doyles. The court treated the alleged tenancy and her statutory rights as established for the purpose of deciding the dismissal application; it did not make a final finding on them.
Ulster Bank obtained a Circuit Court possession order in March 2015 after serving a civil bill on the Doyles and on people in actual occupation. Hayes did not make a case in those proceedings that her tenancy should be protected. She later complained to the Private Residential Tenancies Board that a bank letter requiring the occupier to leave was an invalid termination notice. The Board found it had no jurisdiction because Ulster Bank was not her landlord, and the Circuit Court upheld that decision on appeal.
Ulster Bank assigned the charge to the fourth defendant, Promontoria (Finn) Ltd, in September 2015. Hayes’s claim sought, among other relief, a declaration that the company was the landlord of the premises. Justice Allen held that the Board and Circuit Court had already decided Ulster Bank was not her landlord. Because Hayes claimed the assignee was Ulster Bank’s privy, the company was entitled to rely on that decision. The court accepted that the claim that Promontoria was her landlord was bound to fail.
But the judge was not satisfied that Hayes had no case. He identified an unresolved issue: whether the 2015 possession order required her to deliver actual possession, or whether Promontoria’s right to enforce the security remained subject to her tenancy with the Doyles. The judge did not decide that issue or rule on the validity of the receiver’s appointment. He said the receiver’s correspondence appeared to offer to consider her tenancy claim, and that property managers had written describing her as a tenant and referring to the Residential Tenancies Acts.
The application to dismiss the entire claim was therefore not granted. Justice Allen offered Hayes an opportunity to reformulate her claim around the effect of the possession order and her tenancy. The judgment does not state whether she accepted that opportunity or what happened next.