By Ann O'Loughlin
A woman is to be given an opportunity to reformulate a High Court action brought when she feared she would lose her rented home because a fund took possession of the property.
Mr Justice Senan Allen said Valerie Hayes' case that the fund, Promontoria (Finn) Ltd, is her landlord was bound to fail. But he was not satisfied she had no case in regard to other claims she made.
Promontoria had brought an application to strike out her case on grounds that it showed no reasonable cause of action but the judge said he would now allow her an opportunity to reformulate her claim.
He said the issue to be determined is whether a possession order granted over her home at the Turnpike, Santry Cross, Ballymun, Dublin, requires her to deliver actual possession or whether Promontoriais entitled to enforce its security over the property, not with her, but with the landlords the fund acquired the house from over failure to repay a loan.
Ms Hayes lived in the house for 12 years as a tenant of a couple who acquired it as a buy-to-rent property with loan assistance from Ulster Bank, the judge said.
The couple got into difficulty with their loan in 2013 and Ulster Bank issued repossession proceedings. In March 2015, the Circuit Court made a repossession order.
Ms Hayes, in her High Court action, claimed that because a letter was sent in June 2015 by Ulster Bank to the "tenant", stating that as the house was subject to repossession, she treated this as a putative termination of her tenancy.
She then complained to the Residential Tenancies Board (RTB) that Ulster Bank had served an invalid notice of termination. The RTB decided it did not have jurisdiction in the matter and this was affirmed by the Circuit Court in January 2015.
In the meantime, September 2015, Ulster Bank assigned the loan on the house to Promontoria.
Mr Justice Allen said Ms Hayes complained Ulster Bank refused to inform her of the name of the new loan holder. The judge said he could not understand "the reticence" of Ulster Bank to do so given that this was public information in the Land Registry in October 2015.
The judge said the case made by Ms Hayes is at best ambiguous. While she has asserted long term tenancy rights, she said she has been left in a situation where she was living in fear her home will be repossessed without notice on foot of a possession order.
She says the Circuit Court is not empowered to terminate her statutory tenancy but, the judge said, he understood Promontoria did not contend otherwise.
He was "unconvinced these proceedings were necessary" or that the High Court was the proper forum to make the case that Promontoria is bound by her tenancy and/or that her right to remain in the property was unaffected by the possession order.
He noted there had been efforts by agents for the receiver appointed by Promontoria over the property to liaise with her in relation to payment of rent and regularisation of the tenancy.
If she engaged with the receiver, she might very well establish her tenancy, he said.
He adjourned the matter so the parties could consider his judgment and for Ms Hayes to consider, if she wishes, to reformulate her claim.