Latest RTB case appealed to High Court in the press

GGTrek · 13-10-2017 1:24pm #1

The same judge that gave the tenant a way out on a technicality in early 2016, this time finally applied the law:
http://www.irishexaminer.com/breakingnews/ireland/judge-dismisses-womans-appeal-over-termination-of-tenancy-809666.html

I shall post in this thread some excerpts of the judgement when it becomes available in Courts.ie.

This tenant has a very long history of litigiousness and must have almost cost the landlord the property in legal fees. Now the tenant life will only go downhill due to her massive playing of the system and her name having become so public.

I am sure she will try to appeal to the court of appeals (delaying tactics are typical of players), but lately Court of Appeals is not allowing frivoulous appeals from tenants, so I believe that in 2018, sheriff will knock the door and she will probably live the rest of her life either under emergency accommodation or if she is lucky in a few years under social housing.

Her frivolous litigiousness and pettiness has been her downfall and the RTA guarantees have been played to the full. Took the landlord more than three years of RTB cases and two High Court appeals to evict this tenant (it is an extreme case I admit). Only Canty was worse than this case. She should have moved out of D2 three years ago and been thankful that she was lucky enough to be living for so many years in one of the best locations of Dublin, but I have seen how pride obscures good judgment.

In any case it shows again to which lengths a landlord must go to legally evict a motivated playing/litigious tenant.

LuckyLloyd · 13-10-2017 2:40pm

The story says the notice of termination was served to her in late 2016, so it's taken under a year to get to this point? How has it taken three years, or have I overlooked something obvious?

GGTrek · 13-10-2017 9:41pm

LuckyLloyd wrote: »

The story says the notice of termination was served to her in late 2016, so it's taken under a year to get to this point? How has it taken three years, or have I overlooked something obvious?

Please investigate.

exaisle · 13-10-2017 9:50pm

From the article in the Examiner....."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."

With all due respect m'lord, what a load of absolute bullsh1t!

If it's a constitutional right, it'll be in the Constitution. The judge was entitled to find that there was such a right if he so pleased, but he didn't. If he felt that there was one, then why didn't he p1ss or get off the pot rather than complicate matters with drivelous meanderings like that?

LuckyLloyd · 13-10-2017 10:31pm

GGTrek wrote: »

Please investigate.

Well that's unhelpful, as the story on this case doesn't assist. What this story as written demonstrates is the RTB ruling in favour of the LL and that ruling being rightfully upheld in the courts. While a year process is regrettable and would ideally be expedited I fail to see the broader context. Or, at least, the broader context is not referenced to the public via the media in this instance.

davo10 · 13-10-2017 10:57pm

LuckyLloyd wrote: »

Well that's unhelpful, as the story on this case doesn't assist. What this story as written demonstrates is the RTB ruling in favour of the LL and that ruling being rightfully upheld in the courts. While a year process is regrettable and would ideally be expedited I fail to see the broader context. Or, at least, the broader context is not referenced to the public via the media in this instance.

This ain't her first rodeo.

GGTrek · 14-10-2017 12:27am

LuckyLloyd wrote: »

GGTrek wrote: »

Please investigate.

Well that's unhelpful, as the story on this case doesn't assist. What this story as written demonstrates is the RTB ruling in favour of the LL and that ruling being rightfully upheld in the courts. While a year process is regrettable and would ideally be expedited I fail to see the broader context. Or, at least, the broader context is not referenced to the public via the media in this instance.

If you refute one of my assertions, you better investigate to provide some evidence. I am saying this tenant started her litigious behaviour in 2011, she had three tribunal (i.e. appeals) and two high court appeals (and a few other adjudications as well), she believes she has the divine right to stay at the rented property indefinitely and she knows pretty well that once she is out of the property, she is screwed, since no sane landlord in Ireland would rent to her.

I know the whole history pretty well and the solicitor of the landlord of the case is my solicitor, look for her name in the RTB database and do your research and then come back. Until then, please refrain from disputing my assertions without evidence.

In early 2016 she was very lucky and got out on a technicality and the spineless RTB tribunal did not kick her out on anti-social behaviour (after fellow neighbour tenants were driven out by her behaviour), the situation was so bad that the landlord representatives had to present themselves to the dwelling in the presence of police, so that her false allegations of harassment would not be taken seriously by the pro-tenant tribunal. She is anything but a frail old lady, like the journalist presented her.

Indeed Mr Barrett in previous judgement stated "However, the court cannot but note in passing that there are the proverbial two sides to every story and that there is evidence before the court to suggest that Ms XXX is a most challenging neighbour and tenant."

The journalist presented the tenant in what I would gently call an excessive positive light :D and performed zero research.

Actually after the high court judgment is properly published I will write to the journalist of the article personally to show her the whole history and see if she changes the piece and stops making pieces supporting bad tenants like the one in the case. The Irish Times has been running an anti-landlord campaign in the past few months and it is time they get their facts right.

LuckyLloyd · 14-10-2017 2:55am

GGTrek, I was not “disputing” your assertion sir, merely noting that the history you described was omitted from the media coverage of this case. A reader of the story would have concluded that this was a standalone ~1 year process.

Fol20 · 14-10-2017 9:20am

Your a lovely person to talk to. It’s a forum and as mentioned above it appears like it’s one year. Maybe it should be you refuting it when the article says otherwise or by just kindly providing whatever you have that shows it was 3 years

__..__ · 14-10-2017 9:21am

Fol20 wrote: »

Your a lovely person to talk to. It’s a forum and as mentioned above it appears like it’s one year. Maybe it should be you refuting it when the article says otherwise or by just kindly providing whatever you have that shows it was 3 years

Did you not bother reading his post?

Mrs Shuttleworth · 14-10-2017 9:22am

All press reports of this case have this tenant's surname spelled wrong. Hence if you search RTB you won't find anything under the name given by the Examiner and the Irish Times.

The correct tenant, as you say OP, is a very different kettle of fish from "an elderly lady with health difficulties".

The_Conductor · 14-10-2017 10:03am

Actually the December 2011 case- has it spelt under the Duniyva variant.

https://www.rtb.ie/archive/2011-12/90.2011.pdf

So this has been ongoing since early 2011- over 6 years......... Thats Mary Duniyva btw.

Original complaint was when the landlord attempted to end the tenancy on the basis of third party complaints about the tenant's antisocial behaviour from neighbours?

myshirt · 14-10-2017 10:05am

This is a complete joke. All it does is make it more expensive to be a landlord. And of course who gets impacted but the good tenants.

The_Conductor · 14-10-2017 10:16am

myshirt wrote: »

This is a complete joke. All it does is make it more expensive to be a landlord. And of course who gets impacted but the good tenants.

It also calls the actions of advocacy groups such as Threshold- who provided the 'lady' with advice- into question. She was actively encouraged by an agency who receive state funding- into making all manner of spurious claims- and strung out the termination of her tenancy and her imminent eviction- for over 6 years. Also- what about all the neighbours who she terrorised- who made third party complaints to the RTB? They are presumably entitled to compensation for the protracted antisocial behaviour they have been forced to endure. Threshold will assist in bringing cases by tenants in the immediate vicinity to the RTB against the landlord- in some curious Kafka'esque reality- when it is the system that is at fault- not the landlord. The landlord isn't out of the woods just yet.

I hope his grandson enjoys college- though at this rate- he probably graduated 1-2 years ago.............

Mrs Shuttleworth · 14-10-2017 2:29pm

Is this the same Mary Dunivya who sued Dublin City Council in the High Court for not accepting her "Sun Pillar" proposal where they now have the Spire?

https://www.irishtimes.com/news/sculptor-wins-right-to-challenge-dublin-s-millennium-monument-1.183171?mode=amp

GGTrek · 14-10-2017 4:17pm

Mrs Shuttleworth wrote: »

Is this the same Mary Dunivya who sued Dublin City Council in the High Court for not accepting her "Sun Pillar" proposal where they now have the Spire?

https://www.irishtimes.com/news/sculptor-wins-right-to-challenge-dublin-s-millennium-monument-1.183171?mode=amp

She is indeed!

On Social welfare for a very long time, never paid legal fees. Easy trigger for suing since so far she never paid the consequences. She might be starting to pay them next year however after court of appeals quickly throws out her spurious claims and sheriff is called.

The problem this case highlights is that she is not going to pay the tens of thousands of euros that the RTB paid to its barristers to defend the case.

Attachments should be made to social welfare payments (something significant like 20-30%) so that all these tenants that go to high court lately (there is a fourth one in the queue this year and they cost so much to the taxpayer) are made to partially pay the consequences of their foolish actions.
There is a serious moral hazard issue in the whole Irish tenancy law system that provides such massive legal guarantees and multiple appeals without paying: tenants become willing to bring forward meritless cases due to the asymmetrical reward / punishment system that favours massively social welfare tenants. That is a very important reason to discourage landlords to take up social welfare tenants of any type.

GGTrek · 14-10-2017 4:29pm

The landlord really tried hard to evict only starting end of 2014 when her part 4 rights were coming to an end. Unfortunately he was very unlucky and a bit naive. Thi last successful attempt was brutally executed in legal terms as it should have been done from the start. It must have cost a lot of money.

garhjw · 14-10-2017 5:08pm

If someone ever deserved to be homeless....

Mrs Shuttleworth · 14-10-2017 10:42pm

garhjw wrote: »

If someone ever deserved to be homeless....

She's from the Ukraine. Says she's lived in 13 countries across three continents. I hope she's kept all LL references.

15-10-2017 7:58am

There is something deeply wrong with our system when free legal aid is granted in cases where no normal person would dare take (and pay for) the case from their own resources.

Lumen · 15-10-2017 8:15am

For me, the weird thing about this case, judging only from the reported remarks, is this bit:

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.

This suggests that if there was a constitutional right to housing by the State, this landlord would be required to continue providing that housing indefinitely.

W, T, and F.

The_Conductor · 15-10-2017 9:00am

Perhaps someone should politely enlighten the good judge, that private landlords are not 'the state' and while the state may outsource its obligations- the obligation or a failure to comply with that obligation- falls on the state (or other entity on which an obligation is vested).

I.e. If you have to do something- you can get someone to do it for you- but if they don't do it- and while you may still an issue with them not doing it- the lack of follow through on the obligation- is a fault that rests with the person on whom the obligation was originally placed.

I can understand the judge is a socialist at heart- however, I thought they were not supposed to make blatantly political statements such as this?

Mrs Shuttleworth · 15-10-2017 9:56am

The moral of this story is:

Rent Allowance Not Accepted

The_Conductor · 15-10-2017 10:06am

Mrs Shuttleworth wrote: »

The moral of this story is:

Rent Allowance Not Accepted

Not necessarily- there is nothing on record to indicate that she was initially a rent-allowance tenant. Perhaps she was, maybe she wasn't- we simply don't know. There are plenty of perfectly decent Rent Allowance and HAP tenants- and there are plenty of cowboy landlords and private tenants who try to cause trouble. No-one, tenant or landlord- is immune from misbehaving. And in the case this particular tenant- Ms. Duniyva- could just as well have started out as a private tenant- as any other class of tenant.

I don't like the RAS and HAP schemes- because of the way they're designed- but my immediate next door neighbours are probably the most pleasant HAP tenants you could ever dream of- I have friends who are letting properties on RAS- and have never encountered issues- and I've a sibling who ended up with severe structural damage to an apartment from a private tenant (two siblings- both solicitors practising in Dublin). You really can't suggest that a HAP or a RAS tenant- is any better or worse than any other tenant- or any other tenant is a model tenant in comparison to a HAP or RAS tenant.

We see the very worst cases of tenants and landlords in this forum- we don't see what happens to 95% of all tenants and landlords- we hear of all the disasters. It colours your expectations- in an unreasonable and unacceptable manner. Thats what you get on the internet- the extremes of human behaviour.

Mrs Shuttleworth · 15-10-2017 10:13am

The_Conductor wrote: »

Not necessarily- there is nothing on record to indicate that she was initially a rent-allowance tenant. Perhaps she was, maybe she wasn't- we simply don't know. There are plenty of perfectly decent Rent Allowance and HAP tenants- and there are plenty of cowboy landlords and private tenants who try to cause trouble. No-one, tenant or landlord- is immune from misbehaving. And in the case this particular tenant- Ms. Duniyva- could just as well have started out as a private tenant- as any other class of tenant.

I don't like the RAS and HAP schemes- because of the way they're designed- but my immediate next door neighbours are probably the most pleasant HAP tenants you could ever dream of- I have friends who are letting properties on RAS- and have never encountered issues- and I've a sibling who ended up with severe structural damage to an apartment from a private tenant (two siblings- both solicitors practising in Dublin). You really can't suggest that a HAP or a RAS tenant- is any better or worse than any other tenant- or any other tenant is a model tenant in comparison to a HAP or RAS tenant.

We see the very worst cases of tenants and landlords in this forum- we don't see what happens to 95% of all tenants and landlords- we hear of all the disasters. It colours your expectations- in an unreasonable and unacceptable manner. Thats what you get on the internet- the extremes of human behaviour.

Relax, I was having the craic.

What I meant exactly in reference to your earlier post is that if a judge is going to hint at the State having a responsibility to provide housing and such a judgment could be handed down then private landlords need to run for the hills right now away from the RAS and HAP schemes.

Calina · 15-10-2017 10:18am

Mrs Shuttleworth wrote: »

Relax, I was having the craic.

The problem is this: ads used to come with comments that social tenants would not be accepted. Discrimination by private landlords has been/can be/is a reality for some people.

So I'm reluctant to find it funny given that it has happened and for the people on the receiving end of it, it just makes their lives a lot harder.

Arguably, this case should never have gotten this far and one of the issues I had while living in Ireland was a complete absence of trust in the private rental market. Landlords kept deposits for no reason, for example, and tenants trashed the place. To rebuild trust, you need a system which deals with disputes in a timely manner for both sides. It looks like you still don't have this.

GGTrek · 15-10-2017 10:48am

The particular tenant of the case is a social welfare tenant (this is a fact and also stated in one of the old and long RTB Tribunal reports of her many claims, she also made statements about discrimination against her because being non-Irish she has been discriminated by the Tribunal and the landlord, I mean she tried the whole shenanigans).

I would wait until the full judgement is published before making assumptions about what Mr Barrett stated about housing rights. The journalist has already shown to have done zero research and they tend to bend the facts and statements according to the journalist political agenda. The agenda of the Irish Times has been very pro-tenant and anti-landlord in the past few months and news like this one do not fit well in their pre-conceived political agenda.

I did say in my very first post that this is an extreme case that does not represent at all the average case, but the big issue is that the legal system should not allow to reach this far because it costs a lot of money to every party involved but the tenant. A case like this one can cost to the RTB as much as a few hundred adjudications and to the small landlord its own property.

It easy to see that the RTB adjudication system on average is quite fast since for example looking at this year, approximately 87% of the cases stopped at the fist instance adjudication that can take from dispute request to issuance of adjudication order approximately 4 months (the whole cycle), the big issue are the remaining 13% of the cases that go to the tribunal, where times get stretched to 9 months to one year (that is why RTB Tribunal should be abolished and appeals should go through District or Circuit court where legal fees are covered). The High Court cases are not statistically significant, even though this year there were 4 appeals which is unheard of and all appeals requested by tenants.

Also these High Court appeals cost a lot of money to the taxpayer since the RTB (i.e. read the taxpayer) has to fund the significant legal costs. The right is almost automatic if the appeal has been prepared correctly in formal terms. Even though the claims are spurious, the court still has to provide an hearing, barristers involved and judgement issued. Court of appeals is different, there is no automatic right of appeal and all these spurious appeals from High Court (these tenants do try since it does not cost them) are thrown out by the court very quickly.

Mrs Shuttleworth · 15-10-2017 12:10pm

GGTrek wrote: »

The particular tenant of the case is a social welfare tenant (this is a fact and also stated in one of the old and long RTB Tribunal reports of her many claims, she also made statements about discrimination against her because being non-Irish she has been discriminated by the Tribunal and the landlord, I mean she tried the whole shenanigans).

I would wait until the full judgement is published before making assumptions about what Mr Barrett stated about housing rights. The journalist has already shown to have done zero research and they tend to bend the facts and statements according to the journalist political agenda. The agenda of the Irish Times has been very pro-tenant and anti-landlord in the past few months and news like this one do not fit well in their pre-conceived political agenda.

I did say in my very first post that this is an extreme case that does not represent at all the average case, but the big issue is that the legal system should not allow to reach this far because it costs a lot of money to every party involved but the tenant. A case like this one can cost to the RTB as much as a few hundred adjudications and to the small landlord its own property.

It easy to see that the RTB adjudication system on average is quite fast since for example looking at this year, approximately 87% of the cases stopped at the fist instance adjudication that can take from dispute request to issuance of adjudication order approximately 4 months (the whole cycle), the big issue are the remaining 13% of the cases that go to the tribunal, where times get stretched to 9 months to one year (that is why RTB Tribunal should be abolished and appeals should go through District or Circuit court where legal fees are covered). The High Court cases are not statistically significant, even though this year there were 4 appeals which is unheard of and all appeals requested by tenants.

Also these High Court appeals cost a lot of money to the taxpayer since the RTB (i.e. read the taxpayer) has to fund the significant legal costs. The right is almost automatic if the appeal has been prepared correctly in formal terms. Even though the claims are spurious, the court still has to provide an hearing, barristers involved and judgement issued. Court of appeals is different, there is no automatic right of appeal and all these spurious appeals from High Court (these tenants do try since it does not cost them) are thrown out by the court very quickly.

It seems very strange that this particular tenant was capable of privately retaining solicitors, instituting proceedings against Dublin City Council and have Senior Counsel represent her in the High Court in such case yet still be eligible for social welfare.

__..__ · 15-10-2017 12:44pm

If you get someone with a job and a career then at least you have someone who has something to lose if they act like this, so it's less likely to happen. You also have someone to go after for damages if they lose their case against you.

GGTrek · 27-10-2017 1:45pm

The judgement has been finally published: http://courts.ie/Judgments.nsf/0/F354B3CDDB35AAEA802581C400450E3C
I cannot find in the whole judgement a single new interpretation of the RTA, this case is just a desperate and manipulative attempt of the tenant to extend her stay and judge Barret conclusions leave no doubts:

"11. Ms XXX, an elderly lady who has suffered recently from ill-health, has the sincere sympathy of the court that she now faces lawful eviction from the dwelling that she rents. In her closing submissions, Ms XXX effectively asked the court to ignore the law and its ‘technicalities’ (as she perceives them) and to do justice (as she considers it to lie). But none of us is above the law; and that includes the judge on the bench. The courts may bring equitable precepts to bear upon the problems that present before them; but the courts are bound by law, and rightly so. Ms XXX's landlords require their premises for occupation by a member of their family; and our elected lawmakers, sensible men and women of the world, have determined in the Act of 2004, as amended, that such affords a good basis on which to evict a sitting tenant. It would be gravely presumptuous of an unelected court and profoundly unjust to Ms XXX’s landlords, if the court were now to yield to Ms XXX’s supplications and deny to those landlords, on a judicial whim, an entitlement that they enjoy under a comprehensive statutory régime devised by our elected lawmakers.
12. For all of the reasons identified above, the court is coerced as a matter of law into respectfully declining all of the reliefs that Ms XXX has sought in the within appeal."

Another more interesting appeal to the High Court was quite technical and decided at the beginning of October and mostly was based on contention of the definition of "child" in order to avoid the jurisdiction of the RTB: http://courts.ie/Judgments.nsf/0/5FA3C8B640A065EC802581C500308715
Again the tenant appeal failed (she had more than two years of rent arrears outstanding).

Unfortunately there is a relatively long queue (above 10 cases) of these very expensive appeals (for the taxpayer clearly since the penniless tenant who is usually a litigant in person does not pay the consequences) this year compared to previous years, almost all raised by tenants who lost at the RTB Tribunal phase: this does not bode well for the Irish private rental market.

Spanish Eyes · 27-10-2017 2:48pm

Any LL who provides accommodation on behalf of the State to HAP or RAS etc. should automatically be given cover by the LA for legal fees if things go wrong. I know I am probably being naive in the extreme in calling for this, but the reality is that the tenant can get FLA ad infinitum it seems, whereas the LL must pay from own resources.

There should also be a "legal costs" insurance policy for every LL. Well worth taking out, but I suppose either none exists here, or the cost is prohibitive.

In all honesty who the feck would be a LL these days at all.

GGTrek · 27-10-2017 3:15pm

Spanish Eyes wrote: »

Any LL who provides accommodation on behalf of the State to HAP or RAS etc. should automatically be given cover by the LA for legal fees if things go wrong. I know I am probably being naive in the extreme in calling for this, but the reality is that the tenant can get FLA ad infinitum it seems, whereas the LL must pay from own resources.

There should also be a "legal costs" insurance policy for every LL. Well worth taking out, but I suppose either none exists here, or the cost is prohibitive.

In all honesty who the feck would be a LL these days at all.

The legal costs of defending RTA section 123 High Court appeals are almost fully sustained by the RTB (they cost tens of thousand of euros each in legal fees) which is directly funded by RTB landlord registration fees and (in big part) by the taxpayer (who is loosing out big). The landlord would just be a notice party usually with a solicitor and/or a barrister writing an affidavit on his part, which cost is not astronomical, but not small (2-3k) and not recoverable. A welfare or penniless tenant as a litigant in person has to source a few hundred euros for the various court fees and that's the maximum amount he/she will loose (well worth it to delay by a further 6-9 months the eviction). There was another thread today where it was suggested to abolish automatic rights of appeal starting from RTB Tribunal and even more for High Court.
With respect to legal costs, a decent landlord insurance will cover them, but will exclude any RTB dispute, so only when case has reached Circuit Court or High Court the insurance kicks in. However the excess is usually between 500-1000 euros (quite high) and sometimes the policies cap the legal costs claims to just a few ks (even though on my multi-property insurance I have the cap at 25k which is quite reasonable in my opinion).

__..__ · 28-10-2017 6:29pm

The only.way really for any landlords who are let to fight back against this treatment is basically to all just not rent to people looking for hap or any other sw payment.
Maybe then the government will cop on and figure out that they can't just comandeer the rental market.

As well as just plain protection for the landlord. If you rent tomsomoen who has nothing to lose and free legal aid then you are on a loser if anything goes wrong. Always rent to someone who you have a chance of getting compensation off if they do lose. To someone who stands to lose a lot by being a dick.

GGTrek · 23-06-2018 12:10pm

I shall continue on this thread because a very recent High Court judgement really nailed the public interest issues that were raised in this thread about the absurdity of the appeal system setup by the Residential Tenancies Act (only the RTB/govvie/legal profession are insterested in keeping it since they are spending a lot of taxpayers' money on it):
http://www.courts.ie/Judgments.nsf/0/D36CEEDE50913A7C802582A30045A4F4
Nestor -v- Residential Tenancies Board
JUDGMENT of Mr. Justice Twomey delivered on the 8th day of May, 2018.
Summary – thousands of euro in legal costs to appeal an award of €910
It was one of the very few times a landlord appealed a badly argued case at the RTB Tribunal:
https://www.rtb.ie/documents/TR0716-001870/TR0716-001870-DR0516-26171%20Report.pdf
the high court judge actually stated this (since the occupant was a lodger, the RTB should not not have had jurisdiction), but said he could not go back to the merits (so the landlord got got screwed massively more):
"A. RTB has no jurisdiction as premises are landlord’s dwelling?
7. First, Mr. Nestor claims that the premises in question which Mr. Tabuka occupied is Mr. Nestor’s dwelling, as distinct from a self-contained unit, and so the RTB did not have the jurisdiction to deal with the dispute between Mr. Tabuka and Mr. Nestor under s. 3(2)(g) and s. 4(2) of the 2004 Act.

8. This would appear to be a valid argument on the facts as presented by Mr. Nestor of the layout of the dwelling and indeed it is possible that if Mr. Nestor had raised this argument at the hearing before the Adjudicator or at the appeal before the RTB, which appeal is a de novo hearing, Mr. Nestor might have been successful on this point."
So the (ignorant) landlord is now left with probably tens of thousands of legal fees as the loosing party (penniless tenants never pay so they have a massive incentive to always appeal). However the most important statements of the judge are probably directed at the govvie and are well detailed below and hopefully some politician will read it (but I doubt it). Senior judges (Laffoy for example) do not like the RTA and clearly do not think it is fit for purpose, but somehow the Irish politicians keep worsening it by making amendments to it. I suggest to the readers of this forum to peruse the statements of the judge below and make their own opinion.
"Illogical to risk thousands of euro to appeal an award of €910
24. However, while deciding this substantive point of appeal before this court, it became clear that the most significant issue arising out of this appeal is that under the appeal system in place for decisions of the RTB, it is likely to cost an appellant such as Mr. Nestor several thousand euro in legal costs to appeal a case with a value of €910, which to this Court defies all logic.
25. This is because the appeal of the RTB decision under s. 123(3) of the 2004 Act is not to the District Court or the Circuit Court, but to the High Court. The hearing of the appeal in this case took circa two hours (i.e. a half-day hearing in the High Court). This means that the costs of appealing the award of damages of €910 by the RTB are likely to be many thousands of euro, since High Court litigation is so expensive. In this Court’s view this is the most significant issue arising out of this appeal.
26. This is because whether Mr. Nestor is successful or not in his appeal, it must be observed that there is something illogical with a system where it costs several thousand euro to appeal an award of €910. It means that while a landlord or tenant has an appeal in principle from a decision of the RTB, in practice very few people would risk having thousands of euro awarded against them in legal costs, if they lose, on a chance that one might recover €910. It seems to this Court that the appropriate court for appeals of decisions of the RTB is a court where the costs are commensurate with the money at stake, in this case that would be the District Court. However, the 2004 Act provides that appeals on a point of law from the RTB are made to the High Court without, it seems, any fixed costs for appeals such as these, and so one is left in a situation where an appellant risks several thousand euro in costs in order to appeal an award of €910.
Thousands of euro of taxpayers’ funds used in an appeal over hundreds of euro
27. It is not just individual landlords and tenants who are affected by the disparity between the cost of an appeal and the value of the appeal. It is also a matter that affects taxpayers. This is because the RTB is funded by the taxpayer, which means that the taxpayer is expending significant resources to defend appeals even though, if the RTB were a private-sector organisation it would have made financial sense for the RTB to simply concede the appeal and pay Mr. Tabuka the €910 award out of its own resources. This is because it would have made financial sense to pay the €910 to Mr. Nestor rather than incur thousands of euro in costs in fighting the appeal and risk an award of legal costs against the RTB and/or risk the chance that, even if the RTB won, it might not recover its costs from Mr. Nestor (if for example Mr. Nestor did not have the resources to pay the RTB).
28. While this would have been the financially sensible approach (if the RTB were a private-sector organisation), it is important to note that this Court is not suggesting that this would have the correct approach in this case.
29. This case does however highlight a more significant issue, namely that if the value of this case (€910, or indeed anything even close to that figure) is reflective of the value of appeals involving the RTB (and that may well be the case, since residential tenancies deal normally with relatively small monthly amounts of rent which are fractions of the €75,000 jurisdiction of the High Court and fractions of the costs involved), this cannot be a proper use of taxpayers’ funds. However, the law as it currently stands is that an appeal to the High Court is what is set down by the 2004 Act and it will remain so, unless the 2004 Act is amended.
Most expensive court chosen for the hearing of RTB appeals
30. It seems to this Court that the 2004 Act does not appear to have been drafted with the public in mind, since it cannot be in a tenant’s or landlord’s interests that the most expensive, rather than the cheapest, court is chosen for the hearing of their appeals. Undoubtedly it benefits the lawyers who are acting in such cases, since the fees for resolving an appeal in the High Court are many multiples of the fees for resolving an appeal in the District Court, but this approach would not appear to be benefit the public or the taxpayer.
31. It also seems to this Court that this situation epitomises some of the flaws in the current system of civil justice, where it does not always appear to have been designed with the financial interests of the users in mind. It seems to this Court that by concentrating litigation in the High Court (and so long as High Court litigation remains as expensive as it currently is), the civil justice system will live up to the well-known adage quoted extra-judicially by Kelly P. in the recent Bar Review (2018) Vol 23 No. 1 at page 1:

“Under the current system, as they say, the only people who can litigate in the High Court are paupers or millionaires”.
Yet ironically, s. 123(3) of the 2004 Act, as if oblivious to the foregoing adage, expressly provides that in relation to appeals between landlords and tenants over residential tenancies:

“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.” [emphasis added]"

The_Conductor · 23-06-2018 12:19pm

__..__ wrote: »

The only.way really for any landlords who are let to fight back against this treatment is basically to all just not rent to people looking for hap or any other sw payment.
Maybe then the government will cop on and figure out that they can't just comandeer the rental market.

As well as just plain protection for the landlord. If you rent tomsomoen who has nothing to lose and free legal aid then you are on a loser if anything goes wrong. Always rent to someone who you have a chance of getting compensation off if they do lose. To someone who stands to lose a lot by being a dick.

However- you *cannot* discriminate on these grounds.
Personally- I think unless you have a long term tenant with whom you have a good relationship- you should just sell, and get out of the sector. And if you do have a long term tenant- who advises you they will be moving at some stage- agree a reasonable set of terms and take good care of them- until they do move- and then sell. There isn't a future in this sector any longer- and while prices are as strong as they are- the logical thing to do- is to liquidate any properties as expeditiously as possible- and pay down debt- before interest rates start to ramp up again.

The_Conductor · 23-06-2018 12:20pm

Sorry- posts are appearing and vanishing on thread- think there is a website issue- will do a cleanup in here (and other threads) later.

Latest RTB case appealed to High Court in the press

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