Irish High Court dismisses HAP tenant’s appeal over landlord’s entitlement to terminate tenancy

The High Court has dismissed a tenant’s appeal against a finding by the Residential Tenancies Board (RTB) that the landlord of a Galway property was entitled to terminate the tenancy under the Residential Tenancies Act 2004.

The appeal was brought by Regina Fitzpatrick, who claimed that the Residential Tenancies Board should not have upheld the validity of the notice to terminate her tenancy after her landlord, Sinead Brett said she would no longer accept rent in the form of a Housing Assistance Payment (HAP). The Tenant contended that this represented a prohibited form of discrimination under Section 6 of the Equal Status Act 2000.

Ms Fitzpatrick, who represented herself in the matter, was one of two tenants of Ms Brett’s property. In 2017 she entered into a tenancy agreement where the rent payable was €1,470 per month and a security deposit of €1,300 was paid. In early August 2021, a warning letter was sent to Ms Fitzpatrick over arrears of rent of more than €4,200 due and owing at that time. On August 31st, 2021, a notice of termination of the 2017 agreement was served.

In his judgment, Mr Justice Simons summarised the statutory requirements governing the lawful termination of a Part 4 tenancy for non-payment of rent. These are to be found under the Residential Tenancies Act 2004 (as amended).

A landlord may terminate a tenancy on the grounds, inter alia, that the tenant has failed to comply with their obligation to pay the rent provided for under the tenancy agreement on the date it falls due for payment. The landlord is required, first, to give written notification to both the tenant and the RTB (“the warning notice” or “the warning letter”). The warning notice must specify the amount of the rent due and allow the tenant a period of twenty-eight days within which to pay the arrears of rent. The purpose of sending the warning notice to the RTB, as well as to the tenant, is to allow the Board to provide the tenant with such information in writing as will enable them to obtain advice from the Money Advice and Budgeting Service (“MABS”). If the tenant fails to pay the arrears of rent within the period allowed, then the landlord may proceed to serve a notice of termination on the tenant. The period of notice to be given by the notice of termination is twenty-eight days. The notice of termination must also be sent to the RTB. The Board will then inform the tenant of their right to refer a dispute as to the validity of the notice of termination for resolution.

The Tenant attended a Tenancy Tribunal on 8 June 2022 at which she accepted that she was in arrears; apologised for this; and explained that she had intended to discharge the arrears once the proceeds of an inheritance, which she had come into, had been paid over to her. The Tenant did not advance any specific argument to the effect that the notice of termination was invalid. Nevetheless, the Tenancy Tribunal concluded that the notice of termination was valid.

In his decision, Mr Justice Garrett Simons noted the landlord’s indication that she would not accept HAP payments was given after the notice of termination of the tenancy of a house located at Roscaoin, Galway, had been given.  The judge said the tenancy validly came to an end in September 2021 and the landlord’s decision not to accept HAP payments was communicated in March 2022.


Link here to the judgment in Regina Fitzpatrick v the Residential Tenancies Board [2023] IEHC 229



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