Judge dismisses woman's appeal over termination of tenancy

by Ann O'Loughlin

A High Court judge has expressed a view there is potential for a future finding of a right under Irish law to State provision of accommodation or housing.

Mr Justice Max Barrett made the remarks when dismissing an appeal by an elderly woman, Mary Dunivya, who has health difficulties, aimed at preventing her lawful eviction from her rented dwelling so her landlords’ grandson can move in instead and be closer to college.

Ms Dunivya appealed an April 2017 decision of the Residential Tenancies Board (RTB) that a notice of termination of tenancy served on her by her landlords in late 2016 was valid.

In his judgment, Mr Justice Barrett said he had sincere sympathy for her, but she was effectively asking the court to ignore the law and “do justice” as she perceived it.

The judgement continued: the landlords wanted this dwelling for occupation by a family member; the courts are rightly bound by law, and our elected “sensible” lawmakers have decided, under the Residential Tenancies Acts, (RTAs) this was a good basis on which to evict a sitting tenant.

It would be “gravely presumptuous” of an unelected court, and “profoundly unjust” to deny the landlords, on “a judicial whim”, their legal entitlement, the judgement said.

Ms Dunivya, he noted, had not argued in her pleadings there was a constitutional right to accommodation/housing such as acted to frustrate the RTAs and that point was raised only in submissions with “very little amplification” as to what was being contended for.

In these circumstances, he would remark only there is “no express constitutional right to universal provision of housing by the State”.

That did not mean a court might not, in a future case, find some unqualified, unenumerated “and as yet unrecognised” constitutional right to accommodation/housing exists as a matter of Irish law.

Such a finding might perhaps be achieved by reference to the insights to be gleaned from the burgeoning case law, and elaboration of principle, by the European Court of Human Rights concerning “minimum State obligations” in the area of housing rights, he said.

In this case, there was no ‘free-wheeling’ or constitutional right to accommodation/housing that could be deployed by Ms Dunivya or the court, certainly not without being pleaded or subject of substantive argument, to upset the lawful finding of the RTB under a law presumed constitutional.

Earlier, the judge stressed the appeal was concerned solely with points of law. The “unfailing experience” of the courts is persons bringing such appeals essentially seek a rehearing of their case before the RTB, and it might be contended they should be legally permitted such a re-hearing, he observed.

Under the RTAs, a landlord may terminate a tenancy on grounds including they “require” the property for their own, or a family member’s occupation, he said.

The phrase “to require” means a landlord must need the relevant dwelling with the effect termination of the tenancy must be essential, or very important to them, rather than just “desirable”.

He was satisfied the RTB properly assessed whether the landlord's perceived requirement of the dwelling was bona fide and was satisfied the dwelling was required for the landlord's grandson and there was no unlawfulness in the landlords’ bona fide requirement of the property.

He rejected further arguments of interference with Ms Dunivya’s right to enjoy peaceful and exclusive occupation of the dwelling and also held there was no breach of her right to a fair hearing before the tribunal. She was given a full opportunity to cross-examine witnesses, including the landlords’ grandson, he said.

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