The High Court has overturned a Circuit Court injunction ordering Anthony and Sylvia Whelan to leave an apartment in Burnell Court, Dublin 17, while Clúid Housing Association pursues its claim for possession at trial.
In a judgment delivered on 20 May 2022, Ms Justice Bolger said Clúid had not met the strong case test required for a mandatory interlocutory injunction. The appeal concerned the Circuit Court’s May 2021 order to vacate the apartment and its October 2021 decision on costs. The High Court refused the injunction and set aside the Circuit Court’s order. It did not decide whether the couple’s occupation was a tenancy or a licence, or whether they had a right to remain after trial.
The couple had rented an apartment in Belmayne from Clúid. After storm damage in September 2018 made it necessary for them to move out during repairs, Clúid placed them in temporary accommodation and then in the Burnell Court apartment. Clúid said the arrangement was a temporary licence and that the couple were required to return to Belmayne once repairs were completed. The couple said their exclusive occupation and rent payments supported a tenancy in Burnell Court.
Justice Bolger found that the couple had exclusive use of the apartment and had paid rent, which was higher after they moved. She accepted their account that they understood the higher rent was for the Burnell Court apartment. Clúid’s evidence about the parties’ intentions when the arrangement began was vague and partly hearsay, she said. Temporary occupation did not, by itself, establish a licence rather than a tenancy. The court said further evidence, including discovery and oral testimony, could assist at trial.
The judge also said Clúid’s delay in seeking urgent relief was not adequately explained, apart from the period when Covid-19 restrictions applied. She expressed concern that the injunction could effectively dispose of the dispute without a trial. The couple would be homeless if required to leave, a consequence Clúid did not dispute. The apartment they had originally rented had since been assigned to another family, and was no longer available to them.
The judgment leaves Clúid free to pursue its claims for possession, mesne rates and damages for trespass at trial. On costs, the judge gave an indicative view that the couple should receive their costs of the appeal and Circuit Court proceedings, subject to any further submissions. The matter was to be listed on 16 June 2022 if either side sought a different costs order or final orders.