High Court dismisses appeal where Tribunal correctly found landlord status based on rent receipt without requiring property ownership proof.

THE HIGH COURT IN THE MATTER OF SECTION 123(3) OF THE RESIDENTIAL

TENANCIES ACTS, 2004-2021

[2025] IEHC 702

Record No. 2024/457 MCA

BETWEEN

ABDALLAH ALSALEH

APPELLANT

-AND-

THE RESIDENTIAL TENANCIES BOARD

RESPONDENT

-AND-

SHARON MCDONNELL AND WAYNE FRAREY

NOTICE PARTIES

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 8th day of December, 2025

INTRODUCTION

1. This is an appeal brought by the Appellant pursuant to s. 123 of the Residential Tenancies Act, 2004 (as amended) (hereinafter the “RTA 2004”) against a Determination Order of the Respondent dated the 14th of August, 2024, embodying the terms of a determination of a Tenancy Tribunal (hereinafter “the Tribunal”) regarding a dispute (reference TR0224-007198) between the Appellant (landlord) and the Notice Parties (tenants) arising from a tenancy at and addressed in County Kildare (hereinafter “the Dwelling”).

2. The question of law at the heart of this appeal is whether the Tribunal wrongly assumed jurisdiction in reliance on the definition of “landlord” in s. 5 of the RTA 2004 on the basis of a finding on the evidence that an oral tenancy agreement had been entered into and rent had been paid and without requiring it to be established that the contracting party owned the property.

BACKGROUND

3. The relevant timeline as apparent from the pleadings is as follows:

10 July 2022: Tenants claim tenancy commenced.

31 Oct 2023: Alleged illegal eviction (locks changed and another person takes up occupation).

01 Nov 2023: Tenants filed RTB dispute application.

18 Dec 2023: Adjudication—RTB found no jurisdiction on the basis that evidence did not establish on the balance of probabilities that rent or deposit had been paid or a tenancy agreement entered into.

13 Feb 2024: Tenants appealed adjudication finding.

19 Feb 2024: Appeal approved for processing by RTB.

30 May & 09 July 2024: Tribunal hearings (de novo determination on the evidence at hearings).

13 July 2024: Tribunal issued determination.

14 Aug 2024: Determination Order—€7,500 damages awarded.

19 Aug 2024: Determination Order and Report issued to the parties.

06 Sept 2024: High Court appeal lodged by Appellant with a first return date on the Notice of Motion for the 13th of November, 2024.

EVIDENCE BEFORE THE TRIBUNAL

4. The evidence heard by the Tribunal is summarised in the Tribunal decision but, as is common in appeals on a point of law in respect of a Tribunal decision, a full transcript of the Tribunal hearing is exhibited by the Respondent.

5. From the contemporaneous record of proceedings provided by the transcript, the only matter which was agreed as between the parties was the location of the Dwelling.

6. Both tenants gave evidence in support of their appeal before the Tribunal. The First Notice Party explained that her partner, the Second Notice Party, was a patient of the Appellant who was a medical doctor. She said that she met the Appellant in his surgery when attending with her partner and a conversation arose about accommodation. She said that he told them that he had a house to let. It transpired that the house was adjacent to the Appellant’s surgery.

7. The First Notice Party described her delight on viewing the house and the offer to let it to them. It was their first home together. She told the Tribunal that on or about the 10th of July, 2022, she left €2,600 (one month’s rent plus deposit) at the Appellant’s surgery and received the keys in return. She also told the Tribunal that the Appellant purchased white goods for the Dwelling which were delivered in July, 2022, just after they moved in and while they were living at the Dwelling. She referred to electricity receipts to demonstrate the Appellant's knowledge of and agreement to the Tenancy as evidenced by the transfer of the utility account into their own name after Christmas 2022, despite the Appellant’s contention that the Notice Parties were squatters who had no permission to be in occupation. The First Notice Party similarly referred to a text message from the Appellant reminding them that rent was due.

8. The First Notice Party described how she began working for the Appellant in the adjacent surgery from October, 2022. She described paying the rent in cash, initially by leaving it with the practice manager, who put it in a safe and subsequently by giving it directly to the Appellant when she started working in the surgery herself. She confirmed that she worked in the surgery from October, 2022, until August, 2023. The First Notice Party referred to correspondence from the practice manager, who left the Appellant’s employment shortly after the First Notice Party started working for him, confirming that rent was delivered to the surgery and placed in the safe.

9. After the First Notice Party gave notice to the Appellant that she was leaving his employment in August, 2023, her evidence was that the relationship deteriorated.

She described the circumstances of her decision to leave work and the fact that this was the subject of complaint under another process. After that, a man arrived at the Dwelling in September, 2023, advising that he was moving in. There was a physical altercation involving the Second Notice Party and the Appellant consequent upon these events. Although no Notice of Termination was served on the Notice Parties, their evidence was that they were looking for another place to live but this was not an easy task.

10. On the 31st of October, 2023, before they had found alternative accommodation, the Notice Parties found themselves locked out of the Dwelling and an unknown man had moved in. They were denied access to the property and the Gardaí were called but indicated that it was a matter for civil remedy and the Notice Parties were advised to contact the RTB. Some belongings (passports) were delivered to the Garda station after the Notice Parties were locked out. They attended at the Dwelling by arrangement seemingly negotiated by the Gardaí to collect other belongings three days later. Their evidence was that by then their belongings had been removed from the Dwelling and some were soiled and damaged. Other items of furniture were never returned. The Notice Parties did not produce receipts in respect of any of these items.

11. Under cross-examination, the First Notice Party told counsel for the Appellant that he said he bought the house for his wife. It was put to her that she had helped herself to the keys and moved into the property after she started working with the Appellant but the First Notice Party denied this referring to the video dating to July, 2022, taken when

she and her partner took up occupation having received the keys and documentation from Harvey Norman in relation to the delivery of the fridge and cooker, charged to the Appellant but notified to them as well. She also referred to the text reminder from the Appellant that rent was due. All of these pre-dated her employment in the surgery by several months.

12. In his evidence, the Second Notice Party also referred to text messages from the Appellant referring to delivery of keys to the Dwelling and delivery of white goods as well as the text message from the Appellant reminding them that rent was due.

The Second Notice Party claimed that valuable possessions of his were stolen or damaged upon eviction.

13. The Second Notice Party in evidence confirmed the existence of a tenancy in the Dwelling agreed with the Appellant. He further confirmed that he had paid a deposit and rent. He acknowledged repeatedly that he had foolishly never insisted on a written lease agreement being signed or on rent receipts being provided. He accepted responsibility for this but explained that they were delighted to get the Dwelling and had not anticipated the turn events took.

14. As apparent from the foregoing, in support of their claims, reliance was placed by the Notice Parties, inter alia, on photographs and videos including a photo of keys handed over at the surgery and a video showing the tenants entering the property on move-in day (July, 2022); WhatsApp messages and most specifically a text said to be from the Dr. Al Saleh reminding: “Rent is due on the 10th of every month” (dated the 12th of August, 2022) and texts regarding delivery of washing machine and fridge to the dwelling with said delivery noted to be the 14th of July, 2022 as well as a back door key; utility documentation (specifically an Electric Ireland letter addressed to the Second Notice Party dated the 29th of May, 2023, showing €1,247.16 due) and evidence of attempts to switch electricity account to tenant’s name; a prescription issued by the Appellant showing the First Notice Party’s address at the Dwelling; a witness statement in the form of a letter from former practice manager stating she witnessed rent being handed over on several occasions; an email from the said practice manager confirming presence during key handover and rent payments.

15. For his part, the Appellant gave evidence to the effect that there was no safe in the surgery and, according to him, the practice manager denied writing a letter stating she received rent from the First Notice Party. He maintained that the text messages submitted by the Notice Parties, ostensibly sent by him referring to due rent, had been fabricated. He claimed that the Second Notice Party had four mobile phones and that he was able to fabricate fake text messages. He said that in July, 2022, he had instructed the office manager to show the property to prospective tenants but subsequently he changed his mind about letting it and that the house, which was owned by his wife, was then used for storage. He added that it was occasionally occupied by locum doctors.

16. He maintained that the First Notice Party had moved into the Dwelling without any permission and the Second Notice Party had moved in thereafter. He claimed that the Second Notice Party had threatened him and was aggressive. He stated in evidence that there were no electricity bills in the Notice Parties’ names and the Electric Ireland account was linked to his own domestic account. He claimed the First Notice Party had refused to pay for electricity when he asked her to do so. He said bills later issued to the Notice Parties but were not paid. He claimed that the First Notice Party fabricated a claim of the Appellant harassing her and made a complaint to the Medical Council and An Garda Síochána.

17. The Appellant maintained that in April, 2023, neighbours complained of noise coming from the Dwelling. He said An Garda Síochána became concerned when clamps on cars at the back of the house were interfered with. In his evidence, the Appellant said that in September, 2023, the Second Notice Party attacked the Appellant and was arrested. He said that a builder contracted to do work on the surgery was permitted to occupy the Dwelling in October, 2023 and there was an altercation between this man and the First Notice Party. He said he informed An Garda Síochána that squatters were living in the Dwelling and An Garda Síochána asked the Notice Parties to leave upon request from the Appellant and their possessions were boxed and left in the shed. He maintained that the damage to possessions had been done by the First Notice Party herself.

18. When asked by the Tribunal who owned this house next door to his surgery, he initially responded that he did not know who owned the house. He later stated that he had bought it for his wife. He said that he had not understood the question posed earlier.

In support of his claim that the property belonged to his wife and not to him, he referred to a redacted copy transfer document. The document was undated. He also referred to one page purporting to be an extract from the Register of Ownership of Freehold Land (indicated as p. 1 of 4) which described the property but did not show ownership details.

The only date appearing was a date of printing of the 27th of June, 2018. No explanation was tendered as to why the full extract from the folio showing the registered owner at the material time was not provided.

19. The hearing was adjourned to facilitate cross-examination of the Appellant which did not conclude on the first day. At the resumed hearing on the 9th of July, 2024, the Appellant was asked by the Tribunal to outline the circumstances leading to the occupant’s departure from the property. He said that a builder from Dublin was contracted to do work on his surgery which would last for 6 weeks and that the builder needed accommodation and was allowed to occupy the Dwelling. He further claimed the property had since been sold saying: “I sold the house last month”.

20. In her closing statement, the First Notice Party said that she wanted the Tribunal to find that she and her partner were tenants in the dwelling and that she wanted her belongings including items of furniture to be returned.

21. Counsel on behalf of the Appellant submitted that as the Appellant was not the owner of the property, the RTB had no jurisdiction in this dispute. Referring to s. 5 of the 2004 Act, he said that as he was an agent for his wife who owned the property, he was not entitled to receive rent. He repeated that the Notice Parties never had a tenancy and that they came back to damage their own goods to seek compensation.

TRIBUNAL DECISION

22. As can be seen from the Tribunal Report, the Tribunal made two key findings, supported by detailed reasons in respect of each finding.

23. First, as noted above, the Tribunal accepted jurisdiction and upheld the allegation of unlawful termination of the tenancy in the Dwelling. Having regard to the definitions of “tenancy” and “tenant” in s. 5 of the RTA 2004, the Tribunal found there was no requirement for a written agreement between the parties in order to establish the existence of a tenancy. The Tribunal stated that the conflicting evidence of the parties regarding the existence or otherwise of a tenancy was considered and weighed. The Tribunal expressly preferred the evidence of the Notice Parties “that they paid a deposit and rent for the dwelling” and “resided there for 15 months”, and the Tribunal thus concluded that there was a Part 4 tenancy created in the Dwelling. The Tribunal referred to the fact that communications between the parties contained in the Case Files corroborated the Notice Parties’ evidence and substantiated the allegation that a tenancy was created in the Dwelling when the Notice Parties moved into it in July, 2022. The Appellant’s assertion that these communications had been fabricated by the Notice Parties was rejected.

24. The Tribunal found to be implausible the Appellant’s evidence that he had been unaware of the occupation of the Dwelling, located adjacent to his surgery, until he was contacted by the ESB in March, 2023, some eight months after the claimed tenancy agreement had been entered into. On the balance of probabilities and having regard to the evidence presented, the Tribunal found that the Notice Parties had paid rent to the Appellant. While the Appellant had not discharged his obligation to furnish rent receipts, the Tribunal found that did not prevent a tenancy from arising.

25. The Tribunal rejected the argument that the Appellant could not be considered the Landlord in respect of the Tenancy based on a claim that he did not himself own the Dwelling. The Tribunal relied on the fact that it had found that he had received the rent from the Notice Parties and no evidence had been put forward to suggest that somebody else owned the Dwelling during that time (other than certain incomplete land registry documents which did not adequately establish ownership of the Dwelling). In this way, the Tribunal rejected the contention that he was acting as agent for a different owner. The Tribunal went on to point out that the definition of a “landlord” under the RTA 2004 did not turn on ownership of a dwelling. The reasons for the Tribunal Decision are recorded as follows:

“The Tribunal refers to section 5 of the Act which states: ""tenancy" includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and, where the context so admits, includes a subtenancy and a tenancy or sub-tenancy that has been terminated; "tenant" means the person for the time being entitled to the occupation of a dwelling under a tenancy and, where the context so admits, includes a person who has ceased to be entitled to that occupation by reason of the termination of his or her tenancy."

Therefore the absence of a written agreement between the parties does not preclude the existence of a tenancy, not (sic) the ensuing status of the occupying part to being that of at (sic) tenant.

The Tribunal acknowledges the conflicting evidence of the parties and to that end the Tribunal prefers the evidence of the tenants that they paid a deposit and rent for the dwelling and because they resided there for 15 months the tenancy in the dwelling was a Part 4 tenancy. Communications between the parties submitted in the case file are further evidence that a tenancy existed despite Dr Alsaleh's assertion that these were fabricated. Section 34 of the Act sets out the grounds on which a Part 4 tenancy may be terminated by a landlord. Section 62 of the Act sets out the requirements for a valid Notice of Termination and Sections 66, 67 and 68 of the Act set out the notice periods required. The respondent landlord did not serve a Notice of Termination, instead he claimed that the appellants were squatters.

The appellant tenant Ms Mc Donnell has given evidence of returning to the dwelling on the October 31 2023 to find that she could not gain access as the locks had been changed in the back door. She said that she had been warned some days earlier that the locks would be changed and that a man was moving in. She said that a man had moved into the dwelling and that she panicked and left the premises. Dr Alsaleh confirmed that a builder who was doing work in his surgery, which would take six weeks, was allowed to occupy the dwelling.

Dr Alsaleh's evidence that he was unaware for some time that the dwelling which was adjacent to his surgery was occupied until the ESB contacted him in March 2023 is not plausible. Moreover his evidence was inconsistent in relation to the way the tenancy was terminated. He claimed on the first day of the hearing that neighbours complained the tenants to the guards because of noise and that the guards came and removed them.

However at the adjourned hearing he said that he had moved a builder in and the guards merely asked Ms Mc Donnell to bring her lease to the station at a later stage.

Relations between the parties seemed cordial for quite some time despite Dr Alsaleh's failure to provide a rent book or receipts for rental income which he is obliged to do by law. He offered Ms. McDonnell a job in his surgery but sometime in the late summer of 2023 the relationship appears to have deteriorated Ms. Mc Donnell stopped working in the surgery in August 2023.

Mr Dixon's argument that because Dr Alsaleh did not own the property he could not be classed as a landlord is not accepted by the Tribunal.

Nowhere is it stated in the Act that a landlord has to own the property and in practice many landlords are not the actual owners of property they are renting to tenants. Moreover while some incomplete land registry documents were submitted in the case files no documents were submitted as to who actually owned the property during the tenancy or at the time of the dispute.

The Tribunal on the balance of probability having regard to the evidence furnished accepts the Appellant Tenants evidence that they paid rent in case to the Respondent Landlord, that no written agreement was entered between the Parties and that no rent receipts were furnished by the Respondent Landlord.”

26. Having found the existence of a tenancy and an unlawful termination on the evidence, the Tribunal made no finding in respect of claimed losses by the Notice Parties regarding their possessions, in the absence of receipts. The sum of €7,500.00 was awarded by way of damages for breach by the Appellant of his obligations as landlord in unlawfully terminating the Tenancy and in failing to allow the Notice Parties to enjoy peaceful and exclusive occupation of the Dwelling.

27. On foot of these findings and in accordance with s.108(1) of the RTA 2004, the Tribunal proceeded to make a Determination Order.

LEGAL FRAMEWORK

28. As made clear in the Long Title to the RTA 2004 , the purpose of the Act is to make provision, inter alia, in accordance with the exigencies of the common good, for a measure of security of tenure for tenants of certain dwellings, to amend the law of landlord and tenant in relation to the basic rights and obligations of each of the parties to tenancies and to establish a body with powers and functions in relation to the cheap and speedy resolution of disputes between parties to tenancies of dwellings coming within the scope of the Act.

29. Section 3 of the RTA 2004 is addressed to its field of application.

30. Section 5(1) of the RTA 2004 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...”

31. A “tenant” is defined as meaning the person for the time being entitled to the occupation of a dwelling under a tenancy and, where the context so admits, includes a person who has ceased to be entitled to that occupation by reason of the termination of his or her tenancy.

32. Section 10 of the RTA 2004 refers to legislation which is repealed by the Act. Schedule

3 of the Act provides a list of Statutes referred to. It is pointed out on behalf of the Appellant that s. 3 of the Landlord and Tenant Law Amendment Act, Ireland, 1860 (hereinafter “Deasy’s Act”) does not stand repealed. It provides that the relation between landlord and tenant shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and a reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent.

33. Section 12 of the RTA 2004 makes provision for landlord’s obligations upon entering into a tenancy including under s.12(1)(e) an obligation to notify the tenant of the name of the person, if any, who is authorized by the landlord to act on his or her behalf in relation to the tenancy for the time being.

34. Section 34 of the RTA 2004 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. Section 34 provides for a Table under which a number of grounds for termination are set out. No Notice of Termination was served in this case as the existence of a tenancy was denied.

35. Part 5 of the RTA 2004 is addressed to the termination of tenancies under the Act and s. 59 provides that neither any rule of law nor provision of any enactment in force immediately before the commencement of that Part shall apply in relation to the termination of a tenancy in a dwelling.

36. Part 6 of the Act addresses the new dispute resolution process established under the RTA 2004 to deal with any disagreement arising between parties with regard to the compliance by either with his or her obligations as landlord or tenant under the tenancy and any matter with regard to the legal relations between the parties that either one or both requires to be determined. Section 76 provides for a right of referral of a dispute by parties to a tenancy and certain other parties. Section 77 provides for the referral of complaints concerning a breach of either landlord or tenant duties. Section 78 provides, non-exhaustively, for the types of disputes which may be referred and expressly provides (at s. 78(1)(e) for referral of a dispute concerning the alleged failure by the landlord to comply with any of the obligations applicable to the landlord, including those contained in any lease or tenancy agreement and s. 78(1)(f) an allegation that the landlord has sought to terminate a tenancy other than in accordance with Part 4.

37. Section 110 of the RTA 2004 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.”

38. Section 193 of the RTA 2004 further disapplies certain provisions of existing landlord and tenant law by providing:

“None of the following enactments applies to a dwelling to which this Act applies—

(a) section 42 of the Landlord and Tenant Law Amendment Act Ireland 1860,

(b) section 14 of the Conveyancing Act 1881,

(c) sections 2, 3 and 4 of the Conveyancing and Law of Property Act 1892,

(d) sections 66, 67 and 68 of the Landlord and Tenant (Amendment) Act 1980, and

(e) section 16 of the Housing (Miscellaneous Provisions) Act 1992.”

39. Section 3 of the Deasy’s Act is not disapplied. Section 3 of the Act provides:

“The relation of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties, and not upon tenure or service, and a reversion shall not be necessary to such relation, which shall be deemed to subsist in all cases in which there shall be an agreement by one party to hold land from or under another in consideration of any rent”.

40. Section 123(3) of the RTA 2004 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.”

41. Order 84C, rule 2(3) Rules of the Superior Courts (as amended) (“RSC”) provides, in relation to statutory appeals:

"Where the relevant enactment provides only for appeal to the High Court on a point of law, the notice of motion shall state concisely the point of law on which the appeal is made."

42. Under the RTA 2004, 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 RTA 2004.

PROCEEDINGS

43. In his Originating Notice of Motion, the Appellant sets out four grounds upon which he argues the Determination Order ought to be cancelled. He pleads that the Tribunal:

i. wrongly assumed jurisdiction in this case in circumstances where it was not entitled to do so on the evidence before it;

ii. [w]rongly held that there was no need for a landlord to be the owner of a property;

iii. [w]rongly assumed that an unspecified Act was a complete and selfcontained code representing the law relating to residential tenancies;

iv. [g]ave no examples of any situation where a non-owner was the landlord of a property such that its reasoning cannot be properly understood.

44. The appeal is grounded on the Affidavit of the Appellant’s solicitor. He avers that he acted for the Appellant before the Tribunal. He deposes that it had been submitted at the hearing that the Appellant was not the owner of the property. He claims to have provided the Tribunal with a “redacted deed of transfer which was evidence that the Appellant was not the owner of the property.” He exhibits the documents in question and avers that the redactions were for confidentiality regarding the purchase price. He confirms that it had been submitted to the Tribunal that the Appellant’s involvement

with the property was as “agent” of his wife.

45. Opposition papers filed on behalf of the Respondent on the 13th of February, 2025, are grounded on affidavits sworn by the Chairperson of the Tribunal and the Acting Deputy Director of the Respondent. The Respondent maintains that the conclusions of the Tribunal were grounded on primary findings of fact supported by evidence before the Tribunal and on an application of s. 5(1) of the RTA 2004 . The Respondent further maintains that the Tribunal was entitled to rely on the fact that o sufficient evidence had been provided regarding the actual ownership of the Dwelling at the material time of the dispute between the parties. It is pleaded that there was no or no sufficient evidence that at the material time the Appellant was acting solely as “agent” for his wife in receiving rent from the Notice Parties under the Tenancy.

46. It is contended by the Respondent that to the extent that the Appellant wished to establish that he merely acted as “agent” for his wife as owner of the Dwelling, the burden of proof lay with the Appellant in that regard and he failed to discharge that burden on the evidence.

47. Finally, the Respondent pleads that no error of law is disclosed by:

i. The Tribunal’s assumption of jurisdiction over the dispute;

ii. The Tribunal proceeding on the basis that a person other than the freeholder or leaseholder of a dwelling can be a landlord in respect of a tenancy in that dwelling;

iii. The Tribunal proceeding on the basis that for the purpose of resolving the dispute before it, the 2004 Act established the legal definition of a landlord and did not make ownership of a dwelling part of that definition;

iv. The Tribunal not providing “examples of any situation where a non-owner was the landlord of a property”. It is contended that the Tribunal is not obliged to provide such examples in to explain its reasoning to the Appellant.

48. Although on notice of these proceedings, the Notice Parties have not participated.

SCOPE OF APPEAL

49. The scope of the appellate jurisdiction under s. 123 o f t h e RTA 2004 has been addressed in a series of decisions. In Stulpinaite v. RTB [2021] IEHC 178, the High Court (Barr J.) reiterated that the principles applicable to an appeal on a point of law were set out by the Supreme Court in Fitzgibbon v. The Law Society [2014] IESC 48, [2015] 1 I.R. 516 where Clarke J. cited Deely v. Information Commissioner [2001] IEHC 91, [2001] 3 I.R. 439, 452 to the effect 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.”

50. Barr J. also referred to Marwaha v. RTB [2016] IEHC 308 as:

“correctly set[ting] out the jurisdiction of this Court when considering the appeal in this case.”

51. In Marwaha, the High Court (Barrett J) had summarised the relevant principles as follows:

“(1) the court is being asked to consider whether the Tenancy Tribunal erred as a matter of law (a) in its determination, and/or (b) its process of determination;

(2) the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them;

(3) as to mixed questions of fact and law, the court (a) may reverse the Tenancy Tribunal on its interpretation of documents; (b) can set aside the Tenancy Tribunal determination on grounds of misdirection in law or mistake in reasoning, if the conclusions reached by the Tenancy Tribunal on the primary facts before it could not reasonably be drawn; (c) must set aside the Tenancy Tribunal determination, if its conclusions show that it was wrong in some view of the law adopted by it;

(4) even if there is no mistake in law or misinterpretation of documents on the part of the Tenancy Tribunal, the court can nonetheless set aside the Tenancy Tribunal's determination where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn.”

52. In a series of cases including Nowak v. RTB [2017] IEHC 111; Doyle v. RTB [2015] IEHC 724; Gunn v. RTB [2020] IEHC 635; Carroll v. RTB [2022] IEHC 326 and Ó Laoire v. RTB [2025] IEHC 384 and Pszonka v RTB [2025] IEHC 291, the High Court has consistently emphasized the constrained role of the court. In O’Sheehan v. RTB [2024] IEHC 409, Simons J. stated (at para. 90):

“[t]he Tenancy Tribunal will be afforded a significant margin of appreciation in relation to findings of fact.”

53. In WebSummit v. RTB [2023] IEHC 634, Ferriter J. emphasised the “very high bar”

which an appellant must surmount to show that (at para. 53) “no reasonable

decision-maker could have arrived at the finding which the Tribunal arrived at here.” In lyaba v. RTB [2023] IEHC 491, Simons J. reiterated (at para. 39) that the assessment of the evidence is quintessentially a matter for the Tribunal, subject to intervention by the High Court in exceptional circumstances where it concludes there had been no evidence before the decision-maker which could reasonably be said to support its findings.

54. In short, for an appeal on a point of law under s. 123 of the RTA 2004 to succeed, there must be a clear error of law established. It is not sufficient that the court might have reached a different decision on the merits. Therefore, the onus is on the Appellant on this appeal to establish a mistake on point of law in the Tribunal

decision. Properly reasoned findings of fact by the Tribunal reached within jurisdiction on an application of the correct legal test and in accordance with fair procedures cannot be interfered with save on irrationality grounds.

DISCUSSION AND DECISION Preliminary – Objection to Reliance on Transcript

55. Although no objection had been made to the admission of the transcript evidence when it was first adduced on affidavit, counsel for the Appellant objected on his feet to its admissibility during the hearing before me ostensibly on the basis that the Tribunal’s reasoning in its decision should not be buttressed by factors not reflected in its Decision.

56. The objection to the admissibility of the transcript of the hearing in evidence was not sustained in circumstances where the very first ground of appeal advanced by the Appellant in his Notice of Motion was that the Tribunal wrongly assumed jurisdiction in this case in circumstances where it was not entitled to do so on the evidence before it. This means that it is entirely appropriate to consider the evidence that was before the Tribunal as recorded on the transcript. Notably, the Appellant has not disputed the factual accuracy of the transcript and I am satisfied that it reflects the evidence given before the Tribunal, the interaction between the Tribunal and the parties and the submissions made.

57. To be clear, however, the transcript is relevant in terms of establishing the evidence at hearing, not as a means of supplementing the Decision of the Tribunal. The

Decision of the Tribunal stands or falls on its own terms. It is true, however, that the transcript also gives a good insight into the approach adopted by the Appellant to the dispute. While denying that he received rent from the Notice Parties and that he had entered into a tenancy agreement with them, the Appellant separately maintained that as he did not own the Dwelling, dealings in respect of the Dwelling were in his capacity as agent for his wife who owned the Dwelling. He made this alternative argument without adducing any evidence that the Notice Parties were ever advised of his role as Agent for the Landlord, rather than Landlord in his own right.

Error of Law as to Jurisdiction

58. The Appellant does not challenge the finding by the Tribunal on the evidence that a tenancy existed. The essence of the Appellant’s case on this appeal is that he is not amenable to the jurisdiction of the Tribunal because he was not the owner of the Dwelling at the material time. The case made is that the RTA 2004 does not replace the existing law on residential tenancies which, it is submitted, was premised on a tenancy being dependent on the party devising an interest under agreement having an interest to devise. Reliance is placed on s. 3 of the Deasy’s Act. The maxim nemo dat quad non habet is invoked to submit that only a person with a proprietary interest can grant a lease.

59. These arguments are not discernible from the grounds of appeal set out in the Notice of Motion and were not elaborated upon before the Tribunal. The position of the Appellant as advanced in oral argument before me appears to be that the Tribunal erred in finding that it is not necessary to demonstrate that a landlord owns the Dwelling before finding the existence of a tenancy. While it is acknowledged on behalf of the Appellant that the ownership obligation contended for on behalf of the Appellant is not sourced in the terms of the RTA 2004, it is contended that it is part of landlord and tenant law which is imported into the RTB dispute resolution process. On the Appellant’s case the Tribunal only has jurisdiction to determine a dispute when it is established that the parties before it are, in fact, landlord (and owner rather than agent) and tenant.

60. These arguments were not developed before the Tribunal. Regrettably also, written submissions were not delivered in accordance with Court direction which required delivery six weeks in advance of the hearing of this appeal on a point of law, in consequence of which the Respondent’s written submissions were delivered without sight of the Appellant’s submissions and therefore are addressed to the terms of the Notice of Appeal which refers to neither s. 3 of Deasy’s Act nor the maxim nemo dat quad non habet.

61. As this argument was not developed before the Tribunal, it is unsurprising that the Respondent objects that the Appellant should not now be permitted to rely on it for the first time on this appeal on a point of law. In this regard, I am referred to a series of cases including Hyland v Residential Tenancies Board [2017] IEHC 557 where it was stated (Noonan J. at paras. 12-14) that where an “issue was therefore never confronted by the Tribunal nor was it asked to make any determination in relation to such issue,” it could not “see how this could form the basis for an appeal on a point of law to this court.” Noonan J. expressed himself “therefore satisfied that not only is this point without merit but the appellant has no entitlement to raise it in this appeal.”

62. Although, it is true that the Landlord’s reliance on s. 3 of Deasy’s Act is new, as is his invocation of the maxim nemo dat quad non habet, with the result that a proper platform for impugning the Tribunal’s decision as based on an error of law has not been laid, it seems to me that notwithstanding this failure, I should address the argument made on this appeal. I reach this conclusion because, although not properly presented or expanded upon, it was nonetheless an alternative part of the Appellant’s case before the Tribunal, albeit strikingly inconsistent with his primary contention that there was no tenancy and the Notice Parties were squatters who did not pay rent and entered the Dwelling without permission, that he did not own the Dwelling but dealt with the Notice Parties in his capacity as agent for his wife, the actual owner and therefore could not be made amenable to the Tribunal process as Landlord.

63. At a fundamental level, regardless of issues pertaining to a failure to properly develop the argument before the Tribunal, it seems to me that the arguments now made are misconceived, primarily because they fail to properly engage with the real basis for the Tribunal decision as grounded on the evidence in this case but also because they reflect a misunderstanding of where the RTA 2004 fits in the scheme of existing landlord and tenant law and notably, s. 3 of Deasy’s Act.

64. Section 3 of Deasy’s Act acknowledges the contractual basis for a landlord and tenant relationship. So does the RTA 2004. The RTA 2004 expressly includes in the definition of tenancy an “oral” or “implied” tenancy. Such a definition is entirely consistent with s. 3 of Deasy’s Act and with the general legal provisions concerning the relationship of landlord and tenant. Under the statutory scheme of the RTA 2004, the Landlord is the person “entitled to receive” the rent paid by the Tenant, the Tenant is the person “entitled to the occupation of a dwelling under a tenancy”. These entitlements derive from an agreement. Accordingly, as under s. 3 of Deasy’s Act, the relationship of landlord and tenant under the RTA 2004 is also founded on contract.

65. The difference introduced by the RTA 2004 insofar as the contractual relationship is concerned is that the contract is one which, by implication of law, now also contains certain statutory indices prescribed under the RTA 2004 which are implied as a matter of law and do not derive from the express agreement of the parties. The broad scheme of the RTA 2004 contained in Part 4 provides that if a tenant has been in occupation of a dwelling for a continuous period of six months, the tenancy shall continue in being and the Act provides for restrictions on the right of the landlord to terminate and the grounds on which termination can occur.

66. The contractual foundation of the relationship of landlord and tenant acknowledged in both s. 3 of Deasy’s Act and in the terms of the RTA 2004 has been considered in many judgments of the Irish courts and the courts of England and Wales. Professor Wylie, in the definitive text of his Landlord and Tenant Law (3rd ed., Bloomsbury Professional, 2014), at para. 2.12, suggests that:

“[…] it is the intention of the parties, as exhibited by their contract or conduct, which is of paramount consideration.”

67. There is much judicial support for the view that whether a tenancy has been created or not is essentially a matter of construction in each case of any written agreement entered into, or of any oral agreement sufficiently evidenced through the course or dealing or of the actions of the parties in relation to the property. It is also settled law that the actual payment of rent is not necessary to create the relationship of landlord and tenant, but the agreement by one party to permit another to occupy a premises in consideration of rent does create the relationship.

68. It must be recalled that the Tribunal is a creature of statute with a prescribed, limited jurisdiction. It is expressly not a function of the Tribunal to determine ownership

(see s. 110 of the RTA 2004). The function of the Tribunal is confined to determining whether a tenancy existed thereby grounding a jurisdiction to resolve disputes in respect of that tenancy. There is nothing in s. 3 of Deasy’s Act which precludes a finding made on the evidence that a tenancy existed by reason of an agreement between the parties established on the evidence before the Tribunal and without proof of ownership of the Property. This is in no way inconsistent with the finding in Anderson v. Fitzgerald & Ors. [2020] IEHC 309, relied upon on behalf of the Appellant to contend that the Tribunal had no jurisdiction absent proof of ownership. Anderson is not authority for this proposition. In fact, Anderson is supportive of a position in law whereby a finding of a tenancy has legal consequences as between the parties to the tenancy agreement but not with regard to third parties (in that instance a bank whose consent to a letting arrangement had not been sought).

69. Insofar as the question of the authority of the Tribunal to determine questions as to its own jurisdiction, Anderson confirms merely that the existence of a tenancy is a condition precedent or jurisdictional fact and that the Tribunal’s findings as to jurisdiction on the facts are not conclusive but may be challenged where the jurisdictional finding is based on an error of law. The decision in Anderson does not upset the entitlement of the Tribunal to determine, on the evidence, whether a tenancy exists.

70. Where a jurisdictional finding is grounded on a finding on the evidence adduced before a Tribunal, the Tribunal’s decision as to the existence of a tenancy is neither “conclusive” nor “exclusive” (to borrow from the language in Anderson) but such a fact-based finding, grounded in evidence, would only be vitiated by error of law if unsustainable on the evidence. Furthermore, the decision of the Tribunal is limited by the statutory jurisdiction of the Tribunal to determine landlord and tenant disputes between the parties to the tenancy agreement as found by the Tribunal. The Tribunal does not determine broader or overarching issues such as ownership or, as in the Anderson case, the entitlements of a mortgagee in respect of a mortgaged property in possession proceedings.

71. In terms of the new argument advanced in reliance on s. 3 of the Deasy’s Act for the first time before me, it seems to me that s. 3 cannot be invoked to preclude the exercise of jurisdiction on the part of the Tribunal where there has been a finding of fact on evidence capable of sustaining the said finding that he entered into an agreement to give possession to the Notice Parties in return for payment of rent.

72. If the Appellant had wished to make the argument that there is a legal requirement for a landlord to own a dwelling-sourced somewhere outside of the RTA 2004 but nonetheless applicable to residential tenancies as regulated by the RTA 2004 and thus affecting the jurisdiction of the Tribunal regarding the resolution of disputes arising from such tenancies, then it was incumbent on the Appellant to put that case to the Tribunal for its consideration properly grounded in evidence. This is not a reversal of the burden of proof. The relevance of evidence of ownership at a Tribunal hearing is confined not to determining ownership, which it has no jurisdiction to do, but to whether the Tribunal can reasonably conclude, having regard to all the evidence before it, that a tenancy existed by reason of an agreement to pay rent in consideration of a right of possession. Evidence of ownership by a party other than the contracting party is evidence which the Tribunal would be required to weigh and consider in deciding whether a tenancy agreement had been entered into had it been adduced, but it is not a necessary precondition to establishing jurisdiction under the RTA 2004 that it be established that the party joined as Landlord owns the Dwelling.

73. The fact remains that in this case the Appellant sought to object to being made amenable under the RTA 2004 based on an assertion that he did not own the Dwelling but the evidence he adduced in this regard was manifestly inconclusive leading the Tribunal to observe:

“Moreover while some incomplete land registry documents were submitted in the case files no documents were submitted as to who actually owned the property during the tenancy or at the time of the dispute”.

74. In my view this is an unassailable finding. Initially, the Appellant gave evidence that he did not know who owned the property adjacent to his surgery. He then gave evidence that he had misunderstood the question, and his wife owned the property.

To the extent that the Appellant wished to convince the Tribunal that his wife owned the Dwelling, the onus of proof lay with him in that respect. The Appellant's wife was not herself called to give evidence. No documentary evidence was provided which was sufficient to establish that the Appellant's wife was the owner of the property.

75. In truth, the evidence of title submitted on behalf of the Appellant begs more questions than it answers. It is most peculiar that the full Land Registry entry was not produced by the Appellant. The fact that it was not would have done nothing to assist the Appellant’s credibility before the Tribunal and is a factor which cannot be ignored in a challenge to the lawfulness of the Tribunal’s decision on the evidence before it that a tenancy existed.

76. If the Appellant had wanted to establish that he did not own the Dwelling as a basis for arguing against the existence of a tenancy, he could have done so by adducing sufficient evidence in this regard. He did not do so. It was most certainly open to the Tribunal on the evidence before it to conclude that the evidence as to the existence of a tenancy offered by the Notice Parties was weightier and more persuasive than the Appellant’s and was not undermined by the incomplete documentation adduced.

77. The fact that this appeal is really based on a complaint in relation to the Tribunal’s assessment of the evidence is borne out by the grounds of challenge advanced in the Notice of Motion. The Appellant contends that the Tribunal wrongly assumed jurisdiction over the dispute “in circumstances where it was not entitled to do so on the evidence before it.” I agree with the Respondent that this is a challenge to the Tribunal's assessment of, and the weight given by the Tribunal to, the evidence presented (which the Tribunal concluded supported the existence of a tenancy). As noted above, however, Marwaha confirms that the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them, and that the Court may interfere where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn.

78. It is well established that assessment of the evidence is quintessentially a matter for the Tribunal. It is only in rare circumstances where a finding is so lacking in evidential support that it may be amenable to a challenge on a point of law as being one which no reasonable decision maker could arrive at that a court will intervene to find an error of law. In this case it is not contended on behalf of the Appellant (nor could it) that there was no evidence before the Tribunal upon which it could find the existence of a tenancy and assume the statutory jurisdiction accorded to it by the Oireachtas; rather, the Appellant appears to contend that the evidence supported a different conclusion.

79. Any challenge to the Tribunal’s findings grounded on the adequacy of the evidence before the Tribunal to support the conclusions it drew must fail in my view. As clear from the summary of the evidence before the Tribunal above, there was a copious amount of evidence before the Tribunal enabling it to reach the conclusions drawn by it. As pointed out on behalf of the Respondent, this evidence included:

i. evidence from the First Notice Party that she had had a conversation with the Appellant at his doctor's surgery (where the Second Notice Party was a patient), during the course of which the Appellant offered to let the Dwelling out to them.

ii. evidence from the First Notice Party that she viewed the Dwelling with the Appellant and, on the 10th of July, 2022, left €2,600 by way of deposit with the Practice Manager, receiving the keys to the Dwelling in return.

iii. evidence in the form of a note from the said Practice Manager confirming she witnessed the First Notice Party meeting with the Appellant in relation to the deposit and collection of keys and confirming subsequent delivery by the First Notice Party of several monthly rental payments at the practice.

iv. evidence in the form of a video showing the Notice Parties first moving into the empty Dwelling in July, 2022.

v. evidence in the form of text messages from the Appellant arranging the first meeting at the Dwelling for viewing purposes, hand-over of keys and subsequent arrangements for the delivery of white goods.

vi. evidence from the First Notice Party that rent was always paid in cash.

vii. evidence in the form of a letter from former Practice Manager of the Appellant's practice confirming receipt and retention of certain rent payments in the practice safe.

viii. evidence in the form of a text message from the Appellant reminding them of the due date for rent payments on the 10th of each month and advising them to leave same at the surgery reception.

ix. evidence in the form of utility receipts supporting the proposition that the Appellant would have known that the Dwelling, located next door to his surgery, was being lived in for a considerable period of time.

x. evidence from the First Notice Party that she took up a job offer with the Appellant from October, 2022, until she handed in her notice in August, 2023, following which relations between the parties deteriorated and a man arrived at the Dwelling advising that he was moving in.

80. While there was also evidence offered by the Appellant against the Notice Parties case, it was for the Tribunal as decision-maker to resolve any conflicts of fact arising on the evidence. Having had the benefit of seeing the parties give evidence under examination-in-chief and cross-examination, the Tribunal preferred the evidence of the Notice Parties. The fact that the Appellant is dissatisfied with the ultimate outcome of this exercise falls well short of establishing that no reasonable decision-maker could have concluded in favour of the existence of a tenancy in the Dwelling. I am satisfied that there was ample evidence before the Tribunal upon which it could ground the exercise by it of jurisdiction based on the existence of a tenancy agreement. In my view, the arguments advanced in reliance on s. 3 of Deasy’s Act and the maxim or concept of nemo dat quad non habet are misconceived and fail to engage with the evidence-based nature of the findings in this case.

81. Insofar as the Appellant advances his complaint on the basis of a contention that he dealt with the Notice Parties as agent for the owner and cannot therefore be treated as a landlord, it bears emphasis that where a person engages as agent for a landlord, the fact of agency and the identity of the Landlord should be disclosed (pursuant to s.

12(1)(e) of the 2004 Act). The Appellant relies on the decision in Gunn v. Residential Tenancies Board [2020] IEHC 635 to contend that as an agent cannot be the landlord, for the Tribunal to have jurisdiction to entertain a dispute, it must first be established that the parties to a dispute are landlord and tenant and that a party to the dispute is not an agent for a landlord. The decision in Gunn is not an authority for this proposition and does not establish as a jurisdictional precondition that the Tribunal first establish whether the party joined owns the dwelling. In Gunn, Simons J. stated:

“the scheme of the legislation is that there must be transparency in respect of the identity of the landlord and his or her authorized agent. This makes perfect sense: it is important that a tenant can have confidence that the person to whom they are paying rent is in a position to provide a valid receipt for same.

Similarly, a tenant is entitled to know the identity of the person who is authorized to serve a notice of termination.”

82. Properly understood, this dictum simply underlines that where a person acts as agent this must be disclosed so that the identity of the Landlord is known. It is hardly surprising that the Appellant gave no evidence of having disclosed that he was dealing with the Notice Parties as agents because his primary case was that they were squatters and he did not deal with them at all, evidence which the Tribunal rejected in a finding which is not challenged in these proceedings. The fact remains, however, that there is no evidence that the requirements of transparency identified by Simons J. in Gunn were met in this case or that the Appellant ever told the Notice Parties that his authority to agree terms with them was an agent for his wife, the owner of the Dwelling. It is also apparent in his evidence to the Tribunal that he asserted control over the Dwelling by using it to accommodate locums at the surgery, as storage and ultimately to accommodate a builder engaged to work on his surgery. Of note, he confirmed in evidence that he had since sold the Dwelling, despite his earlier claim that it was owned by his wife. All of this militates against the Appellant’s ability to assert, by way of alternative argument when his primary case is rejected as implausible and his credibility is rejected, that he engaged with the Notice Parties as agent as he did not own the Dwelling. On the evidence adduced, the Appellant did not establish an entitlement to rely on the proviso in s. 5 of the RTA 2004 whereby a person is not a “landlord”

where, in receiving “rent paid in respect of a dwelling by the tenant thereof', he or she acts merely "as agent for another person.”

83. The approach of the Landlord in responding to this dispute is an undeniable part of the factual matrix in this case which resulted in the decision of the Tribunal in the light of all the evidence before it. The mere fact that the Appellant makes no challenge to the finding of a tenancy on the evidence on this appeal but objects to the jurisdiction of the Tribunal on the basis that he did not own the Dwelling leads me to conclude that the Appellant has engaged and continues to engage in a proverbial game of “cat and mouse” in an endeavour to avoid amenability in respect of a breach of landlord obligations under the RTA 2004.

84. Were it truly his position that it was at all times made clear that he did not own the property and was engaging with the Notice Parties as agent for his wife, he could have given that evidence and produced proof of ownership. If he had done so, the Tribunal could have evaluated that evidence together with the other evidence in the case in deciding whether it was satisfied that a tenancy agreement existed. The fact that the Appellant did not adduce this evidence is capable of at least two potential explanations:

either it is not true and he in fact owns the Dwelling or he sought to obfuscate to avoid the joinder of his wife in the dispute which would have resulted in the breach of the tenancy being amenable to the Tribunal’s jurisdiction in any event.

85. In closing submissions before the Tribunal, when counsel for the Appellant stated that even if he was involved, it was only as agent for his wife and this could not make him the Landlord, he added “the issue then comes down to credibility.” The acknowledgement that the issue comes down to credibility is as key and it is correct. It is clear from the terms of the Tribunal decision that it did not find the Appellant a credible witness. His evidence was described variously and in a reasoned manner as “not plausible” and “inconsistent.” The incomplete nature of the documents relied upon in relation to ownership was remarked upon. Applying a balance of probability standard, the Tribunal expressly preferred the Notice Parties’ evidence over the Appellant’s in finding that the Notice Parties paid rent to the Appellant and occupied the Dwelling as tenants for a period of fifteen months with the result that a Part 4 tenancy existed. No error of law has been established as undermining the Tribunal’s findings in this regard.

86. Finally, for completeness, it is appropriate to address the contention in the Notice of Motion setting out the grounds of appeal that the Tribunal Decision is flawed because the Tribunal gave no examples of any situation where a non-owner was the landlord of a property such that its reasoning cannot be properly understood.

The Respondent acknowledges that, as a matter of principle, a failure to state adequate reasons would amount to an error of law as established in authorities such as O’Sheehan v. Residential Tenancies Board [2024] IEHC 409 but the Respondent contends that the Tribunal’s reasoning in this matter is perfectly clear and readily discernible from the Tribunal Report. I agree. The Tribunal clearly found that, as a matter of law, a landlord need not be the owner of property to acquire the status of landlord in respect of a tenancy contained in the relevant dwelling, provided they are entitled to receive the rent. There is no requirement to provide examples to explain this reasoning, relating to the fundamental lack of any ownership requirement in the RTA 2004.

CONCLUSION

87. Recognising that it has no jurisdiction in respect of matters of title, the Tribunal found, correctly in my view, that proof of ownership is irrelevant to the exercise by it of its jurisdiction under the RTA 2004 where it is satisfied on the evidence that a tenancy existed. This is a conclusion which is sustainable on the evidence and a finding within jurisdiction. The definition of “landlord” under s. 5 of the RTA 2004 is in no way dependent on ownership but on whether the person involved in the dispute referred was entitled to receive rent. The Tribunal made findings of fact in this regard, based on the entirety of the evidence as it was entitled to do, which included incomplete evidence of ownership. It has not been demonstrated that the findings made were not findings which it was open to the Tribunal to make on the evidence before it.

88. As no error of law has been established and the Tribunal made its decision having heard evidence from both parties and based on its assessment of that evidence and in circumstances where there was an adequacy of evidence to support the Tribunal’s

conclusion, I have decided that this appeal should be dismissed. I will hear the parties in relation to the form of my final order and any consequential matters arising.