Cork residents fail in 'class action' against landlord over anti-social activity by his tenants

DownByTheGarden

https://www.thejournal.ie/cork-antisocial-behaviour-6120899-Jul2023/

Am I reading this right. The quango who does everything it can to prevent/delay landlords evicting anti-social tenants so the neighbors can have peace, wants to make judgements where the person trying to carry out the eviction is the problem and gets punished by them?

Caranica

Reads to me that if it was a management company they'd have won the case, it's the unincorporated nature of the residents association that's the problem.

Peregrinus

https://www.boards.ie/discussion/2058305916/cork-residents-fail-in-class-action-against-landlord-over-anti-social-activity-by-his-tenants

You are reading it wrongly, yes. The RTB didn't do everything it could to prevent/delay the landlord evicting the anti-social tenants; on the contrary, it upheld the eviction notice he served.

Reading between the lines, the (now overturned) award of compensation against the landlord is because he didn't serve the notice of eviction soon enough; he delayed too long. He blames this delay on "defective legal advice" he received. There's no suggestion that the RTB was in any way responsible for the delay.

Peregrinus

https://www.boards.ie/discussion/comment/120878335#Comment_120878335

More than that, I think. I don't see how even an incorporated residents association would have standing to bring the claim; it wouldn't occupy any of the adjacent properties any more than the unincorporated residents association did. The appeal tribunal itself points to what is needed; it's "for the affected residents themselves to be named" as applicants in the claim.

Flinty997

The suggestion is the rtb decided to interpret the legislation where it applies to the nusance/noise complaint as invalid due to the association not being a legally defined body.

It's not about identifying the residents. Though if they did it would satisfy the requirement as legal definition of a body.

The association has to form as legal body. Though I'm not sure that's possible.

I assume the evidence the landlord needed came from the Garda.

Peregrinus

https://www.boards.ie/discussion/comment/120878472#Comment_120878472

No. Read the report in full. Also, think about the issues here. What was the basis of the claim in the first place?

The basis for the claim is that tenants have a right to quiet possession of the properties they have rented, and antisocial behaviour by their neighbours infringes that right. Therefore the tenants are given certain remedies to vindicate their right to quiet possession, one being the option of suing their antisocial neighbours (for being antisocial) and another being the option of suing their antisocial neighbours' landlord (for not exercising his rights under the least to control or evict the antisocial neighbours).

But the key to this is the right to quiet possession. That belongs to the tenants, not to the residents association. So the proper applicants were the tenants, not the residents association.

It's true that the residents association was unincorporated, but incorporating it wouldn't solve the problem; the incorporated association still wouldn't have any right to quiet possession, and so couldn't claim compensation for infringement of that right. Only the tenants could claim that compensation.

The unincorporated nature of the association wasn't the problem here. In fact, I think it was an attempt to get around the problem. An incorporated body - e.g. a limited company - is at law a separate person from its shareholders/members. If you infringe a right of mine, your liability is to me, and not to a company of which I happen to be a shareholder. Therefore, I have to sue you, not my company.

By not incorporating, I think the applicants hoped to argue that the residents association wasn't a separate person from the residents; it was simply all the residents acting collectively. Thus they could all sue the landlord without revealing their individual identities. That didn't work, obviously. But as far as I can see incorporating the residents association also won't work. This claim has to be brought in by the affected tenants themselves.

Flinty997

No. They could change the current legislation to facilitate it.

Even if it was facilitated, they'd then have to prove the LL had evidence to evict, and it wasn't done in a timely manner.

Peregrinus

https://www.boards.ie/discussion/comment/120878754#Comment_120878754

Oh, sure, the legislation could be changed to allow representative organisations to make compensation claims on behalf of neighbours. (If it is, I don't see any reason why the change should only allow incorporated representative organisations to bring claims.)

And, until it is, I don't think incorporation will change anything. I think it's a bit of a red herring, to be honest.

Flinty997

Whoever brings the case, would have to prove the Landlord delayed. That will be hard to do considering is very hard for a LL to evict people. If it got the point where there's Garda involved, why haven't they dealt with it. Landlord becomes a patsy because the authorities won't deal with problem tenants, so they passed the buck onto LLs as usual while giving them no means to evict quickly.

Peregrinus

https://www.boards.ie/discussion/comment/120878864#Comment_120878864

In this case they evidently did prove that the landlord delayed; that's why they won at first instance. And the landlord doesn't seem to be challenging that; he blames the delay on "defective legal advice".

If a landlord took steps to evict but the RTB frustrated those steps, he's have a fairly strong argument if sued by the neighbours that he couldn't be liable for failure/delay resulting from the orders of the RTB. But that wasn't the case here.

Flinty997

I'm not sure how you're interpreting.

In his appeal, O’Donovan explained that any slowness in responding to complaints about his tenants was due to “defective legal advice” he received at the time.

Or that the RTB frustrated steps to evict. It seems that the process was followed. Unless your implying something else.

Peregrinus

https://www.boards.ie/discussion/comment/120879272#Comment_120879272

I'm interpreting it at face value, assuming that it means what it says. He was advised that he wasn't entitled to evict, or that an attempt to evict would not be successful, or something of the kind, so he didn't take steps to evict until well after he could have. And if he didn't make an attempt to convict, then it simply cannot be true that the attempt was frustrated by the RTB. How can you frustrate an attempt that has not been made?

Plus, the report says elsewhere that, when he did serve an eviction notice and it was challenged by the tenant, the RTB upheld it. Which is the opposite of frustrating his attempts to convict.

Flinty997

I misread what you posted. I though you said the rtb frustrated this somehow. You actually said the opposite. A few times. Apologies.

It's quite common for LLs take a few attempts to get eviction notices right. I'm not sure you can interpret that as a deliberate delay. Or indeed taking legal advice about same as a delay.

If LLs risk facing massive penalties as suggested in this case, more will leave the market.

Marcusm

https://www.boards.ie/discussion/2058305916/cork-residents-fail-in-class-action-against-landlord-over-anti-social-activity-by-his-tenants

It’s not the RTB’s jurisdiction; a residents association is an unincorporated body of persons which cannot take action in its own name but rather tin the names of some or all of the members. There was a Law Reform Commission report on this some while ago concerning the need for reform of the law in this area.

Peregrinus

https://www.boards.ie/discussion/comment/120880837#Comment_120880837

There's no suggestion in this case that the landlord took a few goes to get the eviction notice right. It seems that, for what the tribunal considered an excessive amount of time (and the problem seems to have continued for years, not months) he took no steps at all. He blames this on "defective legal advice", implying that he got legal advice that he couldn't evict. I'll confess to a bit of scepticism about that but, even if it's true, you generally can't avoid your legal liabilities by saying that you were badly advised by your lawyers. The bad advice is the landlord's problem, not the tenant's. The landlord's recourse in this situation is to sue his lawyers, but other's people's rights can't be negated by the fact that the landlord got bad legal advice. (This isn't a special rule for landlords; it's generally true that you can't avoid legal liablity by saying that you were badly advised.)

If Landlords risk facing massive penalties as suggested in this case, perhaps more will leave the market. And perhaps they'll be replaced by landlords who will discharge their legal obligations and so avoid the massive penalties. The whole point of legal liability is to incentivise you to discharge your legal obligations so as to avoid the liability. If you don't want the obligations of a landlord them maybe leave the market and let someone else who actually wants to be a landlord do the landlording?

Flinty997

Bound to drive better landlords into the sector. How could it fail. I wonder will they try again in suing the LL.