Mr. Justice Max Barrett of the High Court dismissed an appeal by a tenant against a decision of the Residential Tenancies Board stating that the eviction notice she had been served by her landlord was valid under the 2004 Residential Tenancies Act. Mr. Justice Barrett expressed his sympathy for the appellant, however he could not ignore the law in order to “do justice” as she perceived it.
The appellant, Ms. Dunivya had been residing in the dwelling since 2010, when she entered into a tenancy agreement with the respondent, Mr. Gibson. Ms. Dunivya was served with a notice of termination by Mr. Gibson in late 2016. She appealed the validity of the notice to the Residential Tenancies Board in April of 2017, but her arguments were rejected. She then appealed the Decision to the High Court.
In rejecting the appeal Mr. Justice Barrett stated that the landlord was within the law to serve a notice of termination based on the fact that he wanted to use the dwelling for occupation by a family member under the Residential Tenancies Acts. He went on to state that the courts were rightly bound by the law and the elected legislator and it would be presumptuous and unjust to deny landlords their legal entitlement.
Ms. Dunivya raised in her submission to the High Court that there was a constitutional right to housing, however she had not argued this in her pleadings to the Residential Tenancies Board. Justice Barrett observed that there is no express constitutional right to universal provision of housing by the State. He further commented that it was not to say that some qualified, un-enumerated and as yet unrecognised constitutional right to housing might not at some future point be found by a court to exist as a matter of Irish law, or perhaps in conjunction with burgeoning case-law of the European Court of Human Rights concerning minimum State obligations in the area of housing rights (see Moldova v. Romania (2007) 44 EHRR 16, Marzari v. Italy (1999) 28 EHRR CD175, Botta v. Italy (1998) 26 EHRR 241, and Guerra v. Italy (1998) 26 EHRR 357).
However, it fell to the Court to decide the existing case, not to predict the outcome of some possible future case. In the context of the case before it, there was no ‘free-wheeling’ or qualified constitutional right to housing available to Ms Dunivya or the Court, particularly without its having been pleaded or the subject of substantive argument. Mr. Justice Barrett stressed that appeals from the RTB to the High Court could only be concerned with points of law, and that under the Residential Tenancies Acts, a landlord may terminate a tenancy in the instance that they require the dwelling for their own, or a family member’s use. He was satisfied that the RTB had properly assessed the landlord’s requirement of the dwelling as bona fide.
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