Illegal Eviction

Samuel T. Cogley

Okay this IS following on from a thread in A&P so I understand if it gets locked. However a fairly interesting point was being made over there. It also seems the OP is fairly sensible and the seemed to realise that the when the subtle legal points about Justice Laffoy's sex had began to crop up his thread was probably going to yield no more practically useful information.

What happens if a valid notice of termination of a tenancy is issued, the period expires, the tenants over-hold and the LL locks the tenant out, peacefully?

I think it was Alan Shore who said he was taught two wrongs don't make a right but no one ever said anything about four wrongs. I realise we've a two wrong situation here but I curious as to people's thoughts.

My own personal thought is a very dim view would be taken due to the inviolability of the dwelling and that half cut and rehearsing for a moot I read somewhere that even a squat could be considered a dwelling, so over holding tenants are almost certainly covered in my view - as faulty as it probably is.

Fred Swanson

This post has been deleted.

Samuel T. Cogley

Fred Swanson wrote: »

This post has been deleted.

Me too. But to confirm, when they're out - no argy-bargy (Jesus I'm not having that argument again :P) but the tenants have had their tenancy legally terminated and are now over-holding.

Peregrinus

Nevertheless, the proper course is for the landlord to take eviction proceedings and enforce the judgment he gets in those proceedings (assuming he is successful in getting a judgment).

GGTrek

Unfortunately a troll in the A&P effectively killed a very interesting discussion, which went much further than what the OP of this thread explained. The situation would be the following:
- landlord issues termination notice
- tenant overholds or challenges the termination at the RTB
- tenant looses (either at first adjudication or appeal, it does not matter)
- RTB issues binding and final determination order giving tenant date to vacate
- tenant, knowing the awful state of Irish justice and how long it takes to forcefully kick him/her out, ignores the RTB determination order and stays put
- landlord, after date determined by RTB for the tenant to vacate, waits for tenant to leave the dwelling (for example tenant going shopping or visit someone), changes the locks, puts the tenant stuff in a deposit and puts himself or a trusted person inside the dwelling refusing entrance to the tenant.
- tenant calls Garda, occupier inside does not let anyone in the dwelling accusing them of trespassing since he has an RTB determination order saying that the tenant has no more rights to possesion, Garda will very likely refuse to intervene in such case since possesion of the dwelling is a civil matter (while the trespassing is criminal and they cannot allow it: Section 13 of Criminal Justice (Public Order) Act, 1994)

The question is, can the evicted tenant successfully challenge the eviction as an unlawful eviction given the fact that the tenant had no more rights of possession of the dwelling and it was confirmed by proper administrative court and the eviction happened peacefully with no violence?

There was a poster saying that in such case the eviction would be lawful and the tenant had no case.

Mr. Incognito

It's an unlawful eviction.

The Tenant could apply to the High Court for an injunction and would likely win it together with costs for possession but would likely have to give the Judge an indication of the date they intend vacating.

GGTrek

Mr. Incognito wrote: »

It's an unlawful eviction.

The Tenant could apply to the High Court for an injunction and would likely win it together with costs for possession but would likely have to give the Judge an indication of the date they intend vacating.

There are practical cost issues to perform your suggested route. The tenant would have to support the fees of filling an High Court injuction petition + other fees in advance:
http://www.courts.ie/Courts.ie/library3.nsf/pagecurrent/86F3E130183672A080257FB2003DD36A?opendocumentplus extremely high legal counsel fees again paid in advance (a few thousand euros probably?).

Only if legal aid is available to tenant (not easy for a civil case):
http://www.legalaidboard.ie/en/Our-Services/Legal-Aid-Services/Do-I-qualify-/
Then the tenant could really try the injuction route.

The question was more like, could the tenant try to go back to RTB, claim unlawful eviction (even though he has a determination order from the RTB ordering to vacate) and request compensation? In such cases compensation would probably be extremely reduced (on average RTB provides 10x monthly rent compensation for an unlawful eviction performed without any RTB order, I guess performing the eviction after tenant ignored the order to vacate would be looked at much more amicably by the adjudicators)

Samuel T. Cogley

Mr. Incognito wrote: »

It's an unlawful eviction.

The Tenant could apply to the High Court for an injunction and would likely win it together with costs for possession but would likely have to give the Judge an indication of the date they intend vacating.

What would be a rough estimate of costs in that situation? Any thoughts on what would happen if the LL rocked up the day after than indicated date and did this all over again?

I'm assuming the tenant would get a ex parte hearing in the High Court, pretty much that day?

Fred Swanson

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Marcusm

Mr. Incognito wrote: »

It's an unlawful eviction.

The Tenant could apply to the High Court for an injunction and would likely win it together with costs for possession but would likely have to give the Judge an indication of the date they intend vacating.

Is an injunction an equitable remedy? In such a case would the court not be entitled to weight the absence of clean hands on both the tenant and landlord and be permitted to deny the injunction on the grounds of overholding? While it would seem a nonsense to permit unlawful evictions, it is equally nonsense to allow the overholding tenant against whom an eviction order has been obtained to get the benefit of an injunction to recover unlawful possession of the property.

Claw Hammer

Mr. Incognito wrote: »

It's an unlawful eviction.

The Tenant could apply to the High Court for an injunction and would likely win it together with costs for possession but would likely have to give the Judge an indication of the date they intend vacating.

What law is it against? How does the High Court have jurisdiction given Section 182 of the Residential Tenancies Act 2004. Why would the Circuit Court not have jurisdiction? How do you reconcile that decision with the case of F.G.  Sweeney Ltd. v Powerscourt Shopping Centre Ltd? The tenant would be seeking an equitable remedy in circumstances where they were in breach of a direction from the RTB. Any solicitor they would seek to engage would want substantial money up front.

Samuel T. Cogley

Claw Hammer wrote: »

What law is it against? How does the High Court have jurisdiction given Section 182 of the Residential Tenancies Act 2004. Why would the Circuit Court not have jurisdiction? How do you reconcile that decision with the case of F.G.  Sweeney Ltd. v Powerscourt Shopping Centre Ltd? The tenant would be seeking an equitable remedy in circumstances where they were in breach of a direction from the RTB. Any solicitor they would seek to engage would want substantial money up front.

AFAIK the CC does not have equitable jurisdiction does it?

Samuel T. Cogley

On solicitors etc. I imagine in my little head that this could be done, as seems to happen occasionally by the 'anorak run in' by an aggrieved tenant. I don't want to derail the thread but is the need for a well funded solicitor a bit of a red herring?

Claw Hammer

Samuel T. Cogley wrote: »

AFAIK the CC does not have equitable jurisdiction does it?

Of course it does. The CC has the same jurisdiction as the High Court subject to the limitations set out in the Courts Act 1961, as amended.

nuac

Samuel T. Cogley wrote: »

AFAIK the CC does not have equitable jurisdiction does it?

Yes, it has.

I have known Circuit Judges go to some lengths to promote settlements - often going out to inspect the place.

They are usually appointed to their Circuit Court area, and like to ensure good relations.

High COurt judges not so much

Samuel T. Cogley

My mistake, thanks for the clarification. I was under the impression injunctions had to go to the HC.

Any thoughts on whether the CC would entertain an agitated Lay litigant 'on the day'?

GGTrek

Claw Hammer wrote: »

Mr. Incognito wrote: »

It's an unlawful eviction.

The Tenant could apply to the High Court for an injunction and would likely win it together with costs for possession but would likely have to give the Judge an indication of the date they intend vacating.

What law is it against? How does the High Court have jurisdiction given Section 182 of the Residential Tenancies Act 2004. Why would the Circuit Court not have jurisdiction? How do you reconcile that decision with the case of F.G.  Sweeney Ltd. v Powerscourt Shopping Centre Ltd? The tenant would be seeking an equitable remedy in circumstances where they were in breach of a direction from the RTB. Any solicitor they would seek to engage would want substantial money up front.

You raised a lot of interesting questions and I started to have even more doubts. So I performed some searches.

- F.G.  Sweeney Ltd. v Powerscourt Shopping Centre Ltd I believe it is not applicable to Residential Tenancies in Ireland since section 193(b) of the RTA 2004 expressely prohibits using section 14 of the Conveyancing Act 1881, which is the necessary pre-requisite for this case

- Section 182 of the RTA 2004 "182.—(1) On and from the commencement of Part 6, proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part". If one looks at Part 6 section 78 of the RTA 2004, especially section 78(f), would see that the tenant would have to go back to the RTB to dispute the eviction performed in the manner above, not the High Court and not even the Circuit Court and would have against him section 78(n) "an alleged failure by a person to comply with a determination order made by the Board" so my belief is that the tenant could not look for equitable remedy in any other court but the RTB. I am open to any counter argument based on statute or case law.

The RTB would have to balance:
(a) the landlord failing to follow enforcement procedures established by section 124 of the RTA 2004
vs
(b) the tenant failing to obey a determination order to vacate

I could not find any RTB Tribunal case law on similar cases, but I believe that RTB having previously ordered to the tenant to vacate, cannot order the landlord to allow the tenant back (i.e. an equitable remedy). What it could do is inflict monetary damages to the landlord for having breached section 124 of the RTA 2004, which would probably be much less than the very high monetary compensation it usually awards for unlawful eviction.

In case of a non-rent paying tenant, it might be a practical course of action for a landlord to take in order to stop the irrecuperable rent-arrears accumulating (.i.e. the justice system is so slow and inefficient that the monetary compensation would be much less than 6-9 months of rent lost in order to enforce the RTB order through all the legal avenues)

Please provide case law references or statutory references when replying, it makes the counter-arguments much easier to understand and to reply to.

4ensic15

GGTrek wrote: »

You raised a lot of interesting questions and I started to have even more doubts. So I performed some searches.

- F.G.  Sweeney Ltd. v Powerscourt Shopping Centre Ltd I believe it is not applicable to Residential Tenancies in Ireland since section 193(b) of the RTA 2004 expressely prohibits using section 14 of the Conveyancing Act 1881, which is the necessary pre-requisite for this case

- Section 182 of the RTA 2004 "182.—(1) On and from the commencement of Part 6, proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part". If one looks at Part 6 section 78 of the RTA 2004, especially section 78(f), would see that the tenant would have to go back to the RTB to dispute the eviction performed in the manner above, not the High Court and not even the Circuit Court and would have against him section 78(n) "an alleged failure by a person to comply with a determination order made by the Board" so my belief is that the tenant could not look for equitable remedy in any other court but the RTB. I am open to any counter argument based on statute or case law.

The RTB would have to balance:
(a) the landlord failing to follow enforcement procedures established by section 124 of the RTA 2004
vs
(b) the tenant failing to obey a determination order to vacate

I could not find any RTB Tribunal case law on similar cases, but I believe that RTB having previously ordered to the tenant to vacate, cannot order the landlord to allow the tenant back (i.e. an equitable remedy). What it could do is inflict monetary damages to the landlord for having breached section 124 of the RTA 2004, which would probably be much less than the very high monetary compensation it usually awards for unlawful eviction.

In case of a non-rent paying tenant, it might be a practical course of action for a landlord to take in order to stop the irrecuperable rent-arrears accumulating (.i.e. the justice system is so slow and inefficient that the monetary compensation would be much less than 6-9 months of rent lost in order to enforce the RTB order through all the legal avenues)

Please provide case law references or statutory references when replying, it makes the counter-arguments much easier to understand and to reply to.

How can the RTB entertain a tenant when it has ordered the tenant to vacate? T28th Junehe tenant going to court for an equitable remedy would also have a problem in coming to court with clean hands. They had been ordered to vacate and the presumption must be that they would do so. There may also be a problem with jurisdiction if the property is not rated, which most dwellings built since 2001 are not. The Court of Appeal in Permanent TSB against David Langan decided on 28/07/16 that the Circuit Court has no jurisdiction if the property has no rateable valuation. the problem a tenant faces that if they start in the High Court and it turns out that they should have been in the Circuit Court, they will have to pay the extra costs of the High Court to the landlord.
This issue is not free from doubt but I can see the courts being very reluctant to deal with a tenant who says, I am defying the RTB order, which i didn't appeal and i am insisting on sitting here until the Sheriff comes. The tenant would probably be made pay a substantial sum of money into court before getting an injunction.

Mr. Incognito

Claw Hammer wrote: »

What law is it against? How does the High Court have jurisdiction given Section 182 of the Residential Tenancies Act 2004. Why would the Circuit Court not have jurisdiction? How do you reconcile that decision with the case of F.G.  Sweeney Ltd. v Powerscourt Shopping Centre Ltd? The tenant would be seeking an equitable remedy in circumstances where they were in breach of a direction from the RTB. Any solicitor they would seek to engage would want substantial money up front.

I missed this apologies.

1. The law. Ill come to which law presently.

2. Section 182 sets out the matters that the prtb has jurisdiction as set out in Part 6 of the RTA. They can order monetary damages. They cannot order injunctions. Accordingly the HC has jurisdiction.

3. Circuit court jurisdiction.
If this was ordinary ejectment yes. However id be claiming detinue, damages, reinstatement and im sure I could add one or two other orders. CC has limited jurisdiction for detinue of 6.25k http://www.irishstatutebook.ie/eli/1991/act/20/section/7/enacted/en/html#sec7
High court is a safer jurisdiction. The rates point was overcome in January with a further amendment to the courts act which presumes the cc has jurisdiction. Anyway rates dont apply on residential property.

4. Sweeney v powerscourt.
This covers reentry on commercial leases. This is not the same thing. Its a private individual in their home.

5. Equity seeks equity. I dont see how a LL who has just illegally evicted someone can raise that argument.

The law.

The starting point is the end and work back. Not the chronology.
The landlord has evicted someone from their home. Their constitutionally protected property. The landlord has rights which is the repossession of his property but this must be effected legally. You cannot simply lock someone out and say, well, it was their fault for xyz.

If the tenant is overholding and in breach of the prtb then you or the prtb go to the circuit court and get an ejectment order. If you dont, its an actionable wrong and personally id not be looking for much up front to run it.

CIARAN_BOYLE

Completly anecdotally but from work (accountant tax advisor and auditor) I know of a landlord who had been fined €8,000 for illegally evicting someone who was over holding.

The landlord considered it a cheap way of getting the person out until he found out he couldn't claim it as a tax deductible expense.

4ensic15

Mr. Incognito wrote: »

I missed this apologies.

1. The law. Ill come to which law presently.

2. Section 182 sets out the matters that the prtb has jurisdiction as set out in Part 6 of the RTA. They can order monetary damages. They cannot order injunctions. Accordingly the HC has jurisdiction.

3. Circuit court jurisdiction.
If this was ordinary ejectment yes. However id be claiming detinue, damages, reinstatement and im sure I could add one or two other orders. CC has limited jurisdiction for detinue of 6.25k http://www.irishstatutebook.ie/eli/1991/act/20/section/7/enacted/en/html#sec7
High court is a safer jurisdiction. The rates point was overcome in January with a further amendment to the courts act which presumes the cc has jurisdiction. Anyway rates dont apply on residential property.

4. Sweeney v powerscourt.
This covers reentry on commercial leases. This is not the same thing. Its a private individual in their home.

5. Equity seeks equity. I dont see how a LL who has just illegally evicted someone can raise that argument.

The law.

The starting point is the end and work back. Not the chronology.
The landlord has evicted someone from their home. Their constitutionally protected property. The landlord has rights which is the repossession of his property but this must be effected legally. You cannot simply lock someone out and say, well, it was their fault for xyz.

If the tenant is overholding and in breach of the prtb then you or the prtb go to the circuit court and get an ejectment order. If you dont, its an actionable wrong and personally id not be looking for much up front to run it.

That link you have given for the Circuit Court refers to the District Court. It is far from safer if you go in the wrong jurisdiction. The tenant is not coming with clean hands, whatever about the LL. As for locking someone out what about the case of Gale v First National [1985] I.R. 609?
You might personally want to take a punt on a High Court action without much up front but that doesn't mean you are anything like 100% right.
Did this guy have a reported case or ever get back into his house?
http://www.boards.ie/vbulletin/showthread.php?p=83284813

As I stated in the previous thread if the op has the time and money to go down the legal route by all means do that. I was previously in a similar situation and I didn't have the time or money to wait as I have a family to feed. I preformed my own lock change after the legal notice period expired and I got the usual oh we are going to take you to court etc but nothing ever came of it.

newacc2015

CIARAN_BOYLE wrote: »

Completly anecdotally but from work (accountant tax advisor and auditor) I know of a landlord who had been fined €8,000 for illegally evicting someone who was over holding.

The landlord considered it a cheap way of getting the person out until he found out he couldn't claim it as a tax deductible expense.

I have heard this too. That if you sit down and do the maths. You can wait a year for the RTB to hear the case or you illegal evict the tenant ie change the locks and have them out ASAP.

The problem with the RTB is that they getting harsher with illegal evictions. The fine used to relatively small years ago about €3k. Now it is €8-10k. If you are losing €2k a month and it is 12 months for the RTB to hear your case. It is cheaper to illegally evict. There is the fact even if you get the tenant out, you probably wont get the rent arrears from them

At the end of the day, the RTB is the person handing out fines for illegal evictions. If a tenant has ignored their request to vacate the property. If you change the locks, they should not be compensating the tenant for an illegal eviction when they have been asked to leave to the RTB. They fine for illegal eviction when the tenant has asked a tenant to leave and they have not should be minimal

Claw Hammer

newacc2015 wrote: »

I have heard this too. That if you sit down and do the maths. You can wait a year for the RTB to hear the case or you illegal evict the tenant ie change the locks and have them out ASAP.

The problem with the RTB is that they getting harsher with illegal evictions. The fine used to relatively small years ago about €3k. Now it is €8-10k. If you are losing €2k a month and it is 12 months for the RTB to hear your case. It is cheaper to illegally evict. There is the fact even if you get the tenant out, you probably wont get the rent arrears from them

At the end of the day, the RTB is the person handing out fines for illegal evictions. If a tenant has ignored their request to vacate the property. If you change the locks, they should not be compensating the tenant for an illegal eviction when they have been asked to leave to the RTB. They fine for illegal eviction when the tenant has asked a tenant to leave and they have not should be minimal

The RTB don't hand out fines. The RTB direct payment be made by the landlord. The tenant then has to try and collect it.