Courts

Tenant entitled to new hearing over moves to evict him from property, court rules

Judge rules that plaintiff established ‘good arguable case’ and it should be sent back to tribunal for new hearing

The judge said the plaintiff lived in a 'modest two-room flat' at the top of the house, which was divided into flats and offices. Photograph: Bryan O'Brien
The judge said the plaintiff lived in a 'modest two-room flat' at the top of the house, which was divided into flats and offices. Photograph: Bryan O'Brien
Thu Dec 19 2024 - 20:57

A tenant of an apartment on Dublin’s Lower Pembroke Street is entitled to a new hearing over moves to evict him by a developer who wants to convert the Georgian building and adjoining properties into a hotel, the High Court has ruled.

Kenneth Donfield, an artist and teacher of art in the National College of Art and Design, is entitled to a fresh hearing of a Residential Tenancies Board (RTB) tribunal finding that the termination of his tenancy after 21 years was valid.

Mr Justice Brian Cregan ruled that Mr Donfield had established he has a “good arguable case” and it should be sent back to the RTB tribunal for a new hearing. The judge said Mr Donfield lived in a “modest two-room flat” at the top of the house, which was divided into flats and offices.

His original landlord was John Shields, with whom he had what the judge said was “a cordial relationship over the years”. Mr Donfield paid his rent every month and was never in default. In 2018, Mr Shields put the house up for sale, advertising that existing tenants would not be affected.

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“Mr Donfield placed some reliance on this because, he said, it assured him that his tenancy would not be affected and that he would discuss any issues about his tenancy with the new owner,” the judge said.

The sale went ahead to a company called Rathdrinagh Land Ltd, which is owned by Eamon Waters and wants to convert the building and three adjoining buildings he owns into a hotel. A dispute arose about whether Mr Donfield had been served with a valid notice ending his tenancy. Mr Shields said it had been validly served and Mr Donfield said it was not.

Rathdrinagh applied to the RTB for a ruling on validity citing a May 4th, 2018, notice of termination from Mr Shields.

An RTB adjudicator found in favour of Mr Donfield. The adjudicator also noted Rathdrinagh bought the property knowing it was not with vacant possession. Rathdrinagh appealed that decision to an RTB tribunal and provided a short affidavit from Mr Shields saying he had served the notice of termination.

However, said the judge, Mr Shields did not give oral evidence to the tribunal while Mr Donfield did and was subject to cross-examination by Rathdrinagh and the tribunal. The RTB tribunal found, in June 2020, that the termination notice had been validly served.

In November 2021, Rathdrinagh asked the District Court to make an order requiring Mr Donfield to deliver up vacant possession. The District Court granted the order but placed a stay of six months on it.

Mr Donfield sought an appeal to the Circuit Court of that decision, but because he did not file the appropriate statutory declaration as to service, his notice of appeal was not accepted. He applied to the Circuit Court for an extension of time to allow his appeal but this was refused. The Circuit Court also ruled he had been validly served with a termination notice.

He appealed that decision to the High Court. He also sought an injunction against Rathdrinagh preventing it from evicting him and Rathdrinagh agreed not to do so pending the High Court proceedings.

In the High Court, Mr Donfield argued the RTB tribunal’s determination was manifestly erroneous. He believed that the entire application by the landlord was designed to deprive him of any claim to long possession equity to which he might be entitled.

This was why, he claimed, he had been “singled out” among other tenants who remain in occupation of neighbouring flats.

Rathdrinagh opposed the appeal which heard evidence from Mr Shields who insisted he served the termination notice on Mr Donfield.

In a decision on Thursday the judge said in view of “a significant disparity of treatment” afforded to Mr Donfield and Mr Shields by the RTB tribunal, the failure to allow for the cross-examination of Mr Shields meant that a fundamental requirement of procedural fairness was not complied with.