Chief Justice Donal O’Donnell has rejected a constitutional challenge to legislation preventing a child under 18 from succeeding directly to a residential tenancy after the death of a tenant.
The case arose after a boy, identified as EW, lost his mother in tragic circumstances in 2023. She had held a tenancy with Clúid Housing Association, while EW was recorded as a permitted occupant. He was 14 when she died.
Section 39 of the Residential Tenancies Act 2004 allows a tenancy to continue after a tenant’s death in favour of certain people who were living in the property, including a spouse, partner, parent or child aged 18 or over. EW and his aunt, ZG, argued that excluding children under 18 was constitutionally underinclusive.
In his judgment, O’Donnell CJ rejected the argument that the provision discriminated on the basis of parental marital status. He also rejected the Irish Human Rights and Equality Commission’s argument that the age distinction itself breached Article 40.1’s equality guarantee.
The Chief Justice held that distinctions between minors and adults are commonplace in law and can be constitutionally valid where rationally connected to the legislation’s purpose. Here, the law sought to balance security of tenure with landlords’ property rights while conferring a limited statutory right of succession on specified adult occupants.
He also rejected arguments based on Article 42A, concerning children’s rights, and Article 40.5, concerning the dwelling. Neither provision, he held, required landlords generally to accept minors as statutory tenants or compelled the Oireachtas to extend the succession scheme further.
O’Donnell CJ also gave procedural guidance for future constitutional litigation. A direct challenge to the validity of primary legislation should generally be brought by plenary proceedings rather than judicial review, particularly where factual evidence may require oral examination.
He concluded that section 39 was not unconstitutional and said he would dismiss the appeal.