A LANDLORD HAS won an appeal against a decision which would have seen him liable for “hundreds of thousands” of euro in compensation to households in a Cork city suburb over claims that he failed to address anti-social behaviour by his tenants.
Eagle Valley Residents’ Association had taken a landmark case to the Residential Tenancies Board (RTB) on behalf of 188 households in the Wilton estate over a raft of complaints that the estate was being impacted by the behaviour of people living in a house owned by O’Donovan, including drug-related activity and violent incidents.
Residents won the original case but landlord Kevin O’Donovan appealed the decision to the Tenancies Tribunal, which has now ruled that it does not have jurisdiction to deal with a ‘class action’ type of proceeding.
The householders would have been awarded compensation if the ruling had stood.
A solicitor for the residents’ association said the ruling, which found that affected residents should have named themselves in the complaint, would mean that those “most affected by anti-social behaviour can no longer protect their anonymity” by complaining under the umbrella of their residents’ association.
“Instead they [would] have to be personally named in the complaint, often against their immediate neighbour, and thereby be put at risk of intimidation and harassment while waiting for such a claim to be heard,” solicitor Barry Sheehan told The Journal.
In his appeal hearing last October, O’Donovan complained that he was “personally exposed for several hundred thousand” euro in compensation to the residents due to the RTB being able to award compensation worth up to €20,000 for each complainant.
The tribunal had to also decide whether it could allow each household to be compensated. While the residents’ total cost of claim could theoretically have risen to over a million euro, some compensation awards were likely to have been significantly lower than the capped figure as some residents would have been more impacted than others, depending on how close they lived to the home in question.
O’Donovan maintained in his defence that when he received “full, comprehensive evidence” of the alleged criminal activity by his tenants in November 2021, he took actions with an aim to terminate the tenancy.
The tribunal ruled it does not have jurisdiction to consider the complaint as the residents’ association was not “recognisable at law”.
“The complaint is therefore dismissed in its entirety,” it said.
The case was taken under the Residential Tenancies Act 2004, with section 16(h) of the legislation stating that tenants are not to behave within the rental home, or in its vicinity, in a way that is anti-social.
In its reasoning, the tribunal said that the wording of the Act is “clear and unambiguous” in whether the tribunal could have jurisdiction, because the residents’ association was an “unincorporated body” which has sought “to take a claim on its own behalf”.
Sheehan had argued that as the residents’ association was an “agent of its members”, it could be considered a body that could take such a legal claim on their behalf, while also offering protection to the householders as many were reluctant to identify themselves due to the anti-social behaviour taking place within the estate.
However, the tribunal ruled that it was “open for the affected residents themselves to be named” on the application to the RTB and tribunal. “But this was not done,” it said.
It added that the residents’ association was treated as a party to the complaint which it said was “incorrect”.
“There being no other party named in bringing the complaint, the Tribunal finds that it has no complaint before it and dismisses the original complaint of the residents’ association. This replaces the decision of the adjudicator in this case.”
Barry Sheehan said the tribunal had “exploited poor parliamentary draftsmanship” by TDs and senators who designed the legislation.
He said that from a lookback at Dáil debates, he believed the “true intention of the Oireachtas” was to allow unincorporated residents’ associations to “prosecute class action claims on behalf of their members, in the name of the association, against tenants engaged in anti-social behaviour”.
Sheehan added: “The RTB has acted in its own self interest here as it clearly doesn’t want to deal with these types of claims which would be more resource-intensive.”
Sheehan said this means that people “most affected by anti-social behaviour” can no longer protect their anonymity, and are therefore at risk of “intimidation and harassment” while waiting for their claim to be heard.
“The Government needs to urgently introduce legislation to reverse this unwelcome decision by the Tribunal,” he said.
At last year’s preliminary tribunal hearing, Sheehan had said residents contested O’Donovan’s stance that he “took all reasonable steps in seeking to enforce his tenants’ statutory duty” in relation to their behaviour.
The tribunal heard that there were “years’” of alleged incidents in the estate, and that O’Donovan did not contest that there was anti-social behavior by the tenants.
In his appeal, O’Donovan explained that any slowness in responding to complaints about his tenants was due to “defective legal advice” he received at the time.
However, the landlord insisted he acted quickly to address concerns.
In September 2021, he served them a notice of termination to evict them from the property. He claimed the tenants began to ‘overhold’, refusing to leave.
The case made its way to the RTB which ruled in August last year that O’Donovan’s eviction notice was valid. His tenants vacated the property around this time.
Both sides were allowed a brief break to allow consultation as a way of finding resolution, but the compensation claim remained. Sheehan and O’Donovan had agreed that the latter was “accepting there was anti-social behaviour” by the tenants.
The hearing saw the tribunal co-chair’s Roderick Maguire urging both sides to speak “off the record” and decide whether the matter can be “settled without prejudice” to avoid the tribunal being required to make a ruling.
Otherwise, the decision would “remain on the internet forever”, Maguire warned.
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