High Court dismisses appeal where Tribunal correctly determined landlord status based on rent receipt, not property assent.

THE HIGH COURT [2025] IEHC 384 Record No. 2024/645MCA

IN THE MATTER OF AN APPEAL ON A POINT OF LAW PURSUANT TO SECTION 123(3) OF THE RESIDENTIAL TENANCIES ACT 2004

BETWEEN DONNCHADH Ó LAOIRE APPELLANT AND THE RESIDENTIAL TENANCIES BOARD

RESPONDENT AND LOUISE DOLAN NOTICE PARTY

RULING of Ms. Justice Siobhán Phelan, delivered on the 8th day of July, 2025.

INTRODUCTION

1. In these proceedings, the Appellant Tenant seeks to appeal from a Determination Order of the Respondent dated the 4th of December, 2024 on foot of a tenancy dispute referred to it for resolution in respect of a long tenancy commencing in 2003. The Determination Order arose from the report and findings of the Residential Tenancy Tribunal (hereinafter “the Tribunal”) dated the 26th of November, 2024.

2. In his originating Notice of Motion dated the 20th of December, 2024, the Appellant Tenant alleges that the Tribunal erred in law by:

1. Wrongly holding that an executor of an estate who had not taken an assent of the property was entitled to form an intention to move in a family member for an indefinite period.

2. Wrongly failing to deal with the submission by the tenant that an executor of an estate who had not taken an assent of the property was not in a position to form an intention to move in a family member for an indefinite period.

3. The above points of law arise in circumstances where the Appellant Tenant’s former landlord died and following his death, the Notice Party served a Notice of Termination with the expressed intention of moving in a family member, her granddaughter, for an indefinite period. Of note, the Notice Party was the deceased Landlord’s wife and the executor and sole beneficiary of her late husband's estate and the property, the subject of the dispute, formed part of the said estate. It is a particular feature of this case that prior to his death, rent monies were paid into an account held in the joint names of the Notice Party and her deceased husband, the Appellant’s former landlord, making the Notice Party a recipient of rent ever before her husband’s death.

4. The Respondent denies that any error of law has occurred.

5. At the hearing before me, the Notice Party was represented by her solicitor who joined in the Respondent’s submissions as made through counsel and disputed the Appellant Tenant’s entitlement to relief on this appeal. The Appellant Tenant appeared without legal representation.

BACKGROUND

6. Both the background to this tenancy dispute and the evidence offered during the hearing before the Tribunal is summarised in the Report of the Tenancy Tribunal. From this, it is clear that a Notice of Termination was served on the Appellant Tenant in November, 2022 stating:

“The reason for the termination of the tenancy is because the landlord requires the dwelling or the property containing the dwelling for occupation by a family member. [Name], my granddaughter, expects to occupy the dwelling indefinitely.”

7. The Notice of Termination was accompanied by a statutory declaration made by the Notice Party confirming that as Landlord she required the dwelling for her Granddaughter for use for the period from the 1st of July, 2023, indefinitely.

8. On the 1st of September, 2023, the Appellant Tenant made an application to the Respondent pursuant to s. 78 of the Residential Tenancies Act, 2004 (hereinafter “the 2004 Act”). The matter was referred for adjudication which took place on the 10th of May, 2024. The Adjudicator determined that the Notice of Termination with a service date of the 15th of November, 2022, served by the Landlord upon the Tenant in respect of the tenancy of the identified dwelling, was invalid.

9. Subsequently an appeal was received by the Respondent from the Landlord and the appeal proceeded as a de novo hearing. The transcript of the hearing before the Tribunal is before me in evidence. It is apparent from the transcript that the Appellant Tenant challenged the validity of the Notice of Termination served on him on various grounds, including that ground which is at the heart of this appeal, namely, the status and capacity of the Notice Party to terminate a tenancy for her own or family use.

10. From the transcript it appears that evidence was given that the former Landlord, John Dolan, had dementia for six years before his death in July, 2022 and his son-in law, Paul McDevitt, had taken over the management of the flat on his behalf. Rent was paid into a joint account held in John and Louisa Dolans’ name (the deceased former Landlord and his wife) although the property was held in John Dolan’s name alone. Evidence was also given that Louisa Dolan, the Notice Party herein, was named as executor and sole beneficiary of her husband’s will and the position maintained before the Tribunal was that she was entitled to receive the rent from the property on his death. The evidence was that she made returns to Revenue in respect of rent receipts as part of her own tax returns.

11. Evidence was also offered that probate had come through on John Dolan’s estate in the early months of 2023. The case made on the evidence offered to the Tribunal was that the Notice Party’s granddaughters were in college at the time the Notice of Termination was served and that both were now working in Dublin. While one granddaughter occupied the flat at first floor level it had been intended that the second granddaughter would move into the downstairs flat occupied by the Tenant following termination of the tenancy. The evidence before the Tribunal was that this granddaughter had been required to move her lodgings three times since the Notice of Termination was served because the Appellant Tenant had not surrendered possession of the Property.

12. On behalf of the Landlord, further evidence was given to the Tribunal to the effect that the Notice of Termination had been served by registered post in November, 2022 but the letter was returned on two occasions as the Appellant Tenant did not sign for it.

Ultimately, the Notice was served by one of the Notice Party’s granddaughters physically putting it through the letterbox. Subsequent correspondence with the Appellant Tenant was said to have been ignored and according to the evidence offered on behalf of the Landlord, there had been no engagement around the issues relating to the tenancy.

13. For his part, the Appellant Tenant gave evidence that he was away from the property a lot in 2021 and 2022, sometimes for periods of up to seven weeks, as his own father was very ill in Waterford. He said that his father died a few days before the Notice of Termination was served. He said there was piles of mail and junk mail when he returned to the flat and that he had not seen the Notice of Termination. He also said that he had got on very well with his former landlord, John Dolan, deceased, stating that he had reduced the rent to €700 per month after the financial crash.

14. The Appellant Tenant maintained that the Landlord was not entitled to terminate his tenancy as probate had not been granted on the date of service of the Notice of Termination. He further maintained the tenancy could therefore not be terminated by the Notice Party until the title had been vested in her by way of a required “assent”.

15. Relevant to the points of law arising on this appeal, the Tenant submitted before the Tribunal (p. 44 of the transcript of hearing) that one of the main roles of the executor is to preserve assets for the benefit of any potential creditors. He maintained that he had been advised that it was not permissible to terminate a tenancy if the intention is to vest the property in the executor. He told the Tribunal that he had been advised that an executor may be entitled to collect rent but that until she was able to “assent” the property to herself, she could not put a relative into the property. As a lay litigant, he invited the Tribunal to consider the legality of an executor moving in a relative into the property before probate had been granted.

16. In a closing statement, the Appellant Tenant reiterated that he wanted the exact legal position re the granting of probate to be examined maintaining that only when the Landlord was able to assent the property to herself could she terminate his tenancy on the grounds of occupation by her granddaughter.

STATUTORY FRAMEWORK

17. Section 5(1) of the 2004 Act provides at the relevant part that the term “landlord”

means:

“the person for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof...”

The term “agent” is not defined but “an authorised agent” is defined at ss. 4 and 12(1)(e) as the person authorised to act on behalf of either tenant or landlord.

18. It is also relevant to note that s. 110 of the 2004 Act provides that:

“The title to any lands or property shall not be drawn into question in any proceedings before a mediator, an adjudicator or the Tribunal under this Part.”

19. Section 34 of the 2004 Act sets out the circumstances in which a Part 4 tenancy may be terminated by a landlord. A Part 4 tenancy is provided for under the Act, as a tenancy of greater than six months’ duration. The tenancy in question falls into this category.

Section 34 provides for a Table under which a number of grounds for termination are set out. Ground 4 explains the requisite provision for terminating a tenancy for a landlord’s own or family use and provides that the landlord may terminate where he or she requires the dwelling or the property containing the dwelling for his or her own occupation or for occupation by a member of his or her family and the notice of termination contains or is accompanied, in writing, by a statement (a) specifying the intended occupant's identity and (if not the landlord) his or her relationship to the landlord, and the expected duration of that occupation, and (b) sets out further provisions around the reoccupation of the original tenant where the family member or landlord vacates the dwelling within 6 months’ of the expiry of the notice period under the Notice of Termination in question.

20. A granddaughter is a “family member” as defined within the meaning of the 2004 Act as defined in s. 35(4) of the 2004 Act. By the terms of s. 4 of the 2004 Act a “personal representative” is given the same meaning as under the Succession Act, 1965, to wit a personal representative means the executor or the administrator for the time being of a deceased person.

21. Section 123(3) of the 2004 Act provides in relation to an appeal on a point of law that:

“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.”

22. The decision of the High Court on a point of law is final and conclusive by reason of the provisions of s.123(4) of the 2004 Act.

SCOPE OF APPEAL ON POINT OF LAW

23. The principles governing the High Court's jurisdiction on an appeal on a point of law are well established. The leading summary of those principles is that set out by the High Court (McKechnie J) in Deely v. Information Commissioner [2001] 3 I.R. 439 as follows (at para. 18.2) :

“There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following: a. it cannot set aside findings of primary fact unless there is no evidence to support such findings; b. it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw; c. it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally; d. if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision...”

24. The above paragraph was later cited approvingly in the Supreme Court by Fennelly and Kearns JJ in Sheedy v. Information Commissioner [2005] IESC 35 and by Clarke J (as he then was) in FitzGibbon v. Law Society of Ireland [2014] IESC 48, where the learned judge added (at para. 7.4):

“In one sense it may be said that two types of points of law can legitimately be raised in an appeal which is limited to points of law alone. First, there may be an error of law in the determination of the first instance body. Second, it may be the case that the way in which the first instance body has reached its conclusions on the facts involves an error which itself amounts to an error in law. There may have been no evidence to support a finding or inferences may have been drawn on the facts which no reasonable decision maker could have drawn. It follows that a higher degree of deference, so far as the facts are concerned, is paid by the appellate body to the decision of the first instance body in an appeal on a point of law only, as opposed to an appeal against error. In the latter case the court is entitled to form its own view on the proper inferences to be drawn (although not on primary facts).”

25. It is well established that the Appellant is not permitted to make a case that was not advanced before the Tribunal (Rotunda Hospital v. Information Commissioner [2011] IESC 26 and Fitzpatrick v. Residential Tenancies Board [2023] IEHC 229). An error of law may include a failure to make a finding on a complaint properly made and falling within the Tribunal’s jurisdiction (O’Sheehan v. RTB & Anor. [2024] IEHC 409).

26. It is clear from the authorities that an appeal to the High Court on a point of law is not a rehearing. I am not free to substitute my findings for that of the decision-maker. My view of the merits is not the issue in an appeal on a point of law and is not a legally relevant factor.

TRIBUNAL DECISION

27. The issues now arising were not the only matters raised before the Tribunal and the Tribunal Report addresses a range of issues before dealing finally with the issues of law now pursued on this appeal. In particular, the Tribunal considered the oral evidence presented and the documentation submitted in advance of the hearing and satisfied itself on the balance of probabilities, that the Notice Party required the dwelling for the use of her granddaughter, concluding that the Landlord’ requirement for vacant possession of the dwelling was genuine and lawful and that there had been compliance with statutory notice periods applicable in the case of a long tenancy.

28. Having referred to the definition of landlord in s. 5 of the 2004 Act, the Tribunal addressed these submissions in the following terms in its decision:

“Finally, the Tribunal addressed the Tenant's contention that the Landlord was precluded from serving any Notice of Termination in respect of the property until she had obtained a grant of probate and thereby acquired full legal ownership, as a "full-blown landlord." The Tenant asserted that the absence of the grant of probate at the time of serving the Notice of Termination in or around 15 or 16 November 2022, approximately four to six months prior to the issuance of the grant, rendered the notice invalid. The Tribunal does not accept this assertion.

In considering the matter, the Tribunal notes that the Residential Tenancies Act provides a statutory framework for determining the status of a landlord. Under the Act, the critical test of landlord status is the entitlement to receive rent from the tenant, which is a central aspect of the landlord-tenant relationship as defined by the legislation. The Tribunal is satisfied that the Landlord, as the personal representative of the deceased owner of the property but also as the joint account holder of the bank account into which the rent was being paid, was both entitled to collect rent from the Tenant during the relevant period and the 'landlord' within the meaning of the Act. Further, the Tribunal is precluded under section 110 of the Act from enquiring into matters of title. The requirement is to establish who the landlord is within the meaning of the Act, that is the person entitled to receive the rent and the Tribunal is satisfied that Ms Dolan is such a person. Accordingly, the Tribunal finds that the absence of a grant of probate at the time of serving the Notice of Termination does not invalidate the notice. The Landlord's status as the person entitled to receive rent establishes her legal capacity to serve the notice in compliance with the provisions of the Residential Tenancies Act.”

DISCUSSION AND DECISION

29. The Appellant Tenant does not query the Tribunal’s decision on the genuineness of the Landlord/Notice Party’s intention to make the Property available for occupation by her granddaughters nor compliance with statutory notice periods, matters in issue before the Tribunal. Somewhat curiously, on affidavit in support of his appeal, the Appellant Tenant avers that he has never denied that the Notice Party was the Landlord but rather his position is that she was obliged to preserve the estate for the benefit of creditors, if any, of the estate and could not form a bona fide intention of providing accommodation to a family member until such time as the Property vested in her by execution of an “assent”.

30. In this way, the Appellant Tenant’s legal argument relies on the succession law concept of an “assent”. An “assent” which is defined in Murdoch and Hunt's Encyclopaedia of Irish Law as the “instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject matter of the disposition to the person entitled to it.”

31. An objection was raised on behalf of the Respondent that the Appellant Tenant had expanded his legal argument before me in reliance on arguments not made before the Tribunal. Bearing in mind that the Appellant Tenant is a lay litigant and having regard to the case as clearly made before the Tribunal, I consider this objection lacks real substance. I am satisfied that the points of law identified in the Notice of Appeal properly relate to submissions which were also advanced before the Tribunal and are amenable to being raised by way of an appeal on a point of law in respect of the findings made by the Tribunal.

32. Having considered the submissions made by all parties, I am, however, satisfied that the absence of an assent in this case is not determinative of the question, for the purposes of the 2004 Act, of who the “landlord” is. This is because the 2004 Act establishes a distinct code the terms of which are found within the terms of that statute, applying in respect of landlord and tenant relations falling within the scope of that Act.

In particular, the 2004 Act is not concerned with succession nor with title to property.

The Tenancy Tribunal is established pursuant to statute with jurisdiction limited by and deriving from statute, namely, the 2004 Act and the Act expressly provides that the Tribunal shall not determine questions of title.

33. As already noted above, s. 5(1) of the 2004 Act provides at the relevant part that the term “landlord” means “the person for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof...” It is clear from s. 5 that the term “landlord” is tied to the entitlement to receive the rent paid in respect of the dwelling, without reference to the legal status or capacity of the person entitled to receive the rent, save that a person who receives as “agent” is excluded from the definition.

34. The Tribunal properly identified the test it is required to apply in deciding whether a person acts in the capacity of a landlord for the purpose of the 2004 Act as that set down in the definition contained in s. 5 of the 2004 Act. The Tribunal squarely relied on this definition in its report and findings. Indeed, as correctly pointed out in the Tribunal Report, the Tribunal was precluded from considering any question of title by virtue of s. 110 of the 2004 Act. Accordingly, who held the title to the property in question was not relevant to the question the Tribunal had to consider and the sole question for the Tribunal was whether the Notice Party was entitled to receive the rent other than as agent for someone else. For this reason, arguments advanced based on the absence of an “assent” were irrelevant to the question the Tribunal had to decide.

35. Despite the Appellant Tenant’s reference to the exclusion of “agent” from the definition of Landlord under the 2004 Act, this argument was not addressed further in legal argument and the Appellant Tenant at times referred to the s.5 definition as if it excluded a “representative” rather than an “agent”, ignoring the fact that a personal representative and an agent are not the same for the purposes of the 2004 Act and bear different legal meanings.

36. While not central to the reasoning of the Tribunal, it seems to me that the Appellant Tenant is in error to the extent that he appears to conflate “agent” with “personal representative”. An “agent” within the meaning of ss. 4, 5 and 12 is not to be equated with a “personal representative”, separately defined in the 2004 Act. A “personal representative” under the 2004 Act is given the same meaning as in the Succession Act, 1965 in the interpretation provisions set out under s. 4. Separate reference is made to an “authorised agent” in s. 4 where reference is made to the meaning of an authorised agent in s. 12 (1)(e) of the 2004 Act. Under s. 12(1)(e) an authorised agent is defined as a person authorised to act on behalf of either a landlord or a tenant in matters related to residential tenancy agreements. A “personal representative” is not by virtue of their status as personal representative in the estate of a deceased landlord or tenant to be treated as an “agent” for the purposes of the 2004 Act.

37. The Notice Party has not dealt with the Appellant Tenant as agent for the Landlord but as Landlord in her own right. I am satisfied that she is not excluded from the definition of Landlord in s. 5 of the 2004 Act because she is only an agent for the Landlord. No basis in law or fact is demonstrated for such a proposition, if this is part of the Appellant Tenant’s case.

38. The only relevant question for the Tribunal, therefore, under the 2004 Act was who was entitled to receive the rent or put otherwise whether the Notice Party was entitled to receive the rent other than as agent for someone else. If she was, then she was a landlord. This was the question applied by the Tribunal in reaching its decision having regard to the evidence in this case.

39. I am satisfied that the Tribunal was entitled to find, having regard to the evidence in this case and the law, that the Notice Party herein was the person entitled to receive the rent and was the “landlord” per the definition provided in the 2004 Act. Notably, the Tribunal did not make this decision because the Notice Party was the personal representative or executor of the deceased owner under his will, albeit this was a factor, but looked also at the fact that she was the joint account holder of the bank account into which the rent as being paid at the time the Notice Party was receiving rent by means established under the letting agreement and thus entitled to collect rent from the Tenant during the relevant period. The evidence established that the Notice Party was not merely the person entitled to extract a grant of representation in respect of the Estate under the terms of the Will of the late John Dolan and former Landlord (a fact not in dispute) but went considerably further by establishing that she was also his widow and that monies paid to the said John Dolan qua Landlord was being paid into a joint account also bearing the Notice Party’s name and that she was his sole beneficiary under his will. These cumulative factors were relied upon by the Tribunal in concluding that she was the person entitled to receive the rent.

40. Having made the finding that she was a person entitled to receive rent, the Tribunal was thereafter entitled, having regard to the evidence before it and the law, to find that the grounds provided for in number 4 of the Table to s. 34 of the 2004 Act existed, i.e. that the Notice Party required the dwelling for occupation by a member of her family, in this case her granddaughter.

41. The reasoning underpinning the above findings is clearly explained in the Tribunal's report. The Tribunal's report goes into significant detail in explaining its reasoning and how it engaged with the evidence. The Tribunal, in its report, dedicates several paragraphs to dealing with the arguments made by the Appellant regarding the status of the Notice Party as landlord notwithstanding the absence of a grant of probate. The Tribunal's report clearly explains why it has found the Notice Party to be the landlord and, also, why it has found that she was entitled to serve a Notice of Termination since she required the dwelling for occupation by her granddaughter. Moreover, I am satisfied that the Tribunal properly applied the law in arriving at those findings.

42. Although not a matter for the Tribunal and therefore not a matter strictly arising on this appeal which should relate only to matters of law properly before the Tribunal, it seems to me the Appellant Tenant’s submission that as personal representative the Notice Party has a duty to maintain the Estate for the benefit of creditors and is therefore precluded from moving her granddaughter into the Property, presupposes an automatic inconsistency between a duty to maintain the Estate for the benefit of creditors with an entitlement qua landlord to terminate a tenancy under the terms of the 2004 Act.

43. The 2004 Act is a code directed to regulating landlord and tenant relations, not succession law rights and entitlements. Duties arising under the Succession Act, 1965 are unaffected by the terms of the 2004 Act and apply in tandem. The fact that a tenancy is terminated to allow for occupation of a property by a family member of the Landlord is not necessarily in any way inconsistent with a duty to maintain the Estate for the benefit of creditors, if any, pending full administration of the Estate. Even if on the facts of a given case it were to be established that there was an inconsistency, however, this would not be a matter for the Tribunal or the Appellant Tenant in any event.

44. I do not accept the Appellant Tenant’s contention that there has been a failure on the part of the Tribunal to determine the principal issues in the appeal. The Tribunal approached the issue by identifying the question which it was entitled to determine under the 2004 Act, as opposed to the broader question of title to the Property on foot of an assent or duties under the Succession Act. The Tribunal had no jurisdiction to determine competence or ownership, only whether the Notice Party was the person entitled to receive the rent.

45. Although the Appellant Tenant referred in general terms to the personal representative’s duty to preserve the estate for the benefit of creditors, it bears note that it is no part of the Appellant Tenant’s case that anyone else was entitled to receive the rent. This is significant. It might well be that on the facts of another case, the Tribunal would not conclude that entitlement to extract a grant of representation established that a person was a landlord under s.5 of the 2004 Act where the named personal representative was neither receiving rent nor the beneficiary. Who the person entitled to receive the rent is requires to be determined based on the evidence on a case-by-case basis.

46. It seems to me that by expressly averring that he did not dispute that the Notice Party was his Landlord yet maintaining an objection to her entitlement to terminate his tenancy by reason of the absence of an assent, the Appellant Tenant failed to appreciate that by accepting that she is his Landlord, he essentially concedes the question which the Tribunal had jurisdictional competence to determine where the Tribunal has no authority to consider questions of title established by the presence of an assent.

47. In sum, I am satisfied that the Tribunal properly engaged with the questions raised within the parameters of its limited jurisdiction under the 2004 Act. It is no function of the Tribunal to determine questions relating to the duties of personal representatives under the Succession Act, 1965 or title to property. The Tribunal’s decision was based on the statutory definition of landlord under the Act from which its derived its jurisdiction, this being the question which the Tribunal was required to determine.

CONCLUSION

48. For the reasons outlined above, I am satisfied that the Determination Order made was not vitiated by error of law. As no error of law warranting variation or cancellation of the Determination Order made has been found, it follows that the Determination Order of the Respondent stands. I will hear the parties in relation to any consequential matters unless consent terms are communicated to the Registrar. In the absence of agreement in relation to the terms of a final order, this matter will be listed for mention before me following the expiry of fourteen days from the electronic delivery of this judgment.