The High Court has cancelled a €20,000 award made by a tenancy dispute tribunal to a family of five who alleged significant damp and mould in their central Dublin apartment exposed them to health issues.
Mr Justice Alexander Owens found that a Residential Tenancies Board (RTB) appeals tribunal made legal errors in its handling of a complaint by Tetyana and Vassyl Soroka against their landlord, Tuath Housing Associaton, which is one of Ireland’s largest non-profit rental bodies offering affordable lets to people who cannot afford private rentals.
He said the tribunal incorrectly assumed Tuath owed the couple some sort of duty to pursue the management company of the apartment block over structural defects that were causing water ingress in the duplex unit.
The tribunal must apply the law as set out in the tenancy contract and legislation relating to a landlord’s repair obligations, he said. In this case it “omitted to decide an issue which it was required to decide and proceeded to decide something else”.
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He cancelled the RTB decision and award and returned the Soroka’s complaint for fresh consideration by the tribunal.
Mr and Ms Soroka, who paid rent of €129 per week, had complained to the RTB alleging there were rain leaks in their duplex apartment in Dublin’s Grand Canal Dock area since they moved in as the first occupants in 2006.
They and their three children were constantly around mould and damp which, they submitted, exposed them to various breathing and other health conditions.
Tuath told the RTB tribunal it owns 60 of the 290 apartments in the Gallery Quay development, which has had ongoing issues since 2009.
It said the Soroka’s apartment was not up to standard and needed work. It carried out remediation works but said structural and other repairs were the responsibility of the building management firm: Gallery Quay Management Company.
It said it recently offered the family a nearby three-bed property but this was declined. The Sorokas told the tribunal alternative accommodation offered by Tuath was not in a suitable location or was not the right size for their family.
In its ruling on the dispute late last year, the tribunal noted there was a 2021 settlement of a court case between the management company and its insurers over building defects. At the time of the hearing, repairs to prevent the rainwater ingress into the building fabric had not occurred.
The tribunal held that Tuath, as the biggest property owner in the building, could have undertaken works sooner or forced the management company to do repairs. It awarded the Sorokas €20,000 after finding there was a landlord breach of maintenance “at the most serious level”, given the length of time it persisted.
Tuath appealed to the High Court, asking to what extent a landlord can avoid futile repairs where the damage is caused by defects in other parts of the building for which it is not responsible.
Mr Justice Owens said a landlord’s maintenance obligations under the 2004 Residential Tenancies Act are confined to repair to the “structure of the dwelling”. Instead of considering how this obligation applies to an apartment in a block, the RTB tribunal decided Tuath was obliged to pursue the management company on behalf of its tenants.
The judge said the 2004 Act does not oblige landlords to press management companies of multi-dwelling buildings to perform their contractual duties to repair structures or other elements. Landlords are also not required to sue developers, builders or architects who may be responsible for faulty design or construction, he held.
“It would be impossible to imply such a vague duty into a tenancy agreement,” he said.
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