IEHC 7 — IEHC 7 — High Court

THE HIGH COURT

Record No. 2025 72 CA

[2026] IEHC 7

BETWEEN

PHYLLIS MICHAEL

PLAINTIFF

AND

NORMAN DOODY

DEFENDANT

JUDGMENT delivered by Mr. Justice Sean Gillane on 12 January 2026

Introduction

1. This case comes before me by way of Circuit Appeal against an order dated the 13th of

March 2025 in proceedings brought by the plaintiff for possession of a domestic

dwelling house (“the premises”) of which she is the registered owner.

2. The plaintiff was granted an order for possession of the premises with a stay placed on

execution of the order for a period of six months.

3. The defendant seeks to appeal the making of this order. The stay on execution has been

extended until the determination of these proceedings. Factual Background

4. The factual background in this case is somewhat involved.

5. The plaintiff inherited the premises from her uncle, William Campbell, who passed

away on the 27th of June 1993.

6. In 1961, Mr. Campbell granted a tenancy to the defendant’s late father, Brian Doody. It

is common case that Mr. Doody had the benefit of a rent-controlled tenancy in

accordance with sections 8 and 9 of the Housing (Private Rented Dwellings) Act 1982

(“the 1982 Act”).

7. The 1982 Act, which will be considered in greater detail later in this judgment,

essentially provided that a person who was previously a tenant of a controlled dwelling

under the Rent Restrictions Acts 1960-1981 was entitled to retain possession as the

original tenant of that dwelling and that this entitlement would subsist during their

lifetime.

8. On the 25th of July 1991, a determination order made by the Rent Tribunal fixed an

applicable monthly rent for the premises to be paid by Brian Doody, as tenant, to

William Campbell, as landlord.

9. The tenancy continued after the plaintiff became the registered owner of the premises

in 1995.

10. Brian Doody passed away in October 2002 and was survived by his wife, Angela

Doody, the mother of the defendant.

2 11. It appears to be common case that Angela Doody, as the surviving spouse of the original

tenant, Brian Doody, and a bona fide resident in the premises, became entitled upon his

death to retain possession of the premises as tenant for her lifetime, subject to, and with

the benefit of, the provisions of the 1982 Act.

12. In 2005, the plaintiff referred the tenancy of the premises to the Rent Tribunal to have

the rent determined. A determination order was made on the 31st of October 2006,

setting the monthly rent for the premises and specifying further terms of the tenancy. It

is clear from the terms of the order that the rent was to be paid by Angela Doody, as

tenant, to the plaintiff, as landlord.

13. In 2011, Angela Doody was hospitalised and, sometime thereafter, entered a nursing

home. While the defendant originally argued that the plaintiff was informed that Mrs.

Doody had “permanently” vacated the premises at this time, it is now accepted that this

was not done.

14. Rent continued to be paid while Angela Doody was in the nursing home. The defendant

continued to reside in the premises, albeit there is some dispute as to the precise period

of time he was resident there.

15. Angela Doody died intestate on the 7th of October 2017, a widow with three surviving

children, including the defendant.

3 16. A grant of administration intestate to her estate was extracted on the 10th of October

2024 by the defendant as administrator.

17. While it appears that the defendant did seek to become a tenant during his mother’s

lifetime, this was rejected by the plaintiff. An amount of correspondence between the

parties was exhibited and I will return to some of the detail of that correspondence, and

its significance, below.

18. The plaintiff says that on learning of the passing of Angela Doody, she closed the bank

account into which rent had been paid by or on behalf of Mrs. Doody, and that no further

rent was accepted from any party in respect of the premises.

19. It is accepted that the defendant has not paid rent, but that he has been resident in the

premises since his mother’s death. In the course of the hearing, it was asserted, and I

have no reason to doubt, that he made two attempts to pay rent after her death, neither

of which were accepted by the plaintiff.

The Affidavit Evidence and Exhibited Correspondence

20. On the 6th of January 2023, the plaintiff’s solicitors wrote to the defendant demanding

vacant possession.

21. By letter dated the 3rd of February 2023, the defendant’s solicitors replied, saying that

the defendant would not be vacating the premises as he had “acquired certain rights in

the property.” Nothing further was added in relation to the nature of those rights or to

their extent.

4 22. The plaintiff filed a grounding affidavit in support of the ejectment civil bill in

November 2023 and a supplemental affidavit in June 2024. The defendant filed three

replying affidavits in February, July and October 2024. As a result, the evidential

picture developed over time, particularly in light of the exhibited correspondence, and

it will be necessary to refer to some of that detail.

23. In the defendant’s first affidavit, he made a number of assertions. He referred to the

premises as his family home. He said that his brother, Brian Doody Jnr, also resided

there from 1972 to 2014 and that another brother, David Doody, resided there from

1961 to 1975.

24. He said that his mother had permanently vacated the premises in July 2011 and that he

had informed the plaintiff of this fact.

25. He said that following this, he remained in occupation of the premises and continued to

pay rent, and that the plaintiff was aware that he was occupying the premises “as tenant”

and continued to accept the rent from him in that capacity.

26. He expressly claimed that, as and from 2011, a relationship of landlord and tenant

existed between himself and the plaintiff.

27. The defendant exhibited correspondence between himself and the plaintiff which he

said supports this claim.

5 28. The first item exhibited is a letter dated the 22nd of August 2011 from the defendant to

the plaintiff’s agent enclosing a bank draft for payment of rent “for the month of August”

and requesting that the rent book be marked up to date.

29. The next letter exhibited is from the plaintiff dated the 1st of October 2011 which

outlined some family circumstances and a change in the agency arrangements. The

letter also confirmed that it was not possible to pay the rent by bank transfer. While the

letter is addressed to the defendant, it is headed “Tenant Mrs Doody.”

30. The defendant also exhibited a letter from his brother, Brian Doody Jnr, to the plaintiff’s

solicitors dated the 18th of December 2012 to support his claim that the plaintiff had

been told that Angela Doody had “permanently vacated and relinquished possession of

the premises.”

31. In actuality, the letter simply makes reference to Angela Doody being cared for in a

nursing home “at this time.”

32. In that letter, Brian Doody Jnr asked that the plaintiff “recognise my position in the

matter of the tenancy” as he had been living in the premises for over 40 years and paying

the rent and other related bills. He also made a number of complaints about repairs and

matters connected thereto.

33. It must be said that the correspondence exhibited by the defendant in that affidavit does

not give a comprehensive picture of the overall situation.

6 34. In the plaintiff’s supplemental affidavit, she said that Angela Doody was a tenant for

her lifetime, regardless of whether she was hospitalised or cared for in a nursing home.

The plaintiff said that rent continued to be paid and was accepted “on behalf” of Mrs.

Doody until her death.

35. The plaintiff said that no rent was accepted from any party, on any basis, thereafter and

that she closed the bank account into which the rent was being paid.

36. The plaintiff also exhibited correspondence between her agent and Brian Doody Jnr.

There is a letter dated the 31st of October 2012 in which he claimed to be living in the

premises alone, saying that the defendant no longer resided there. He also asked for the

tenancy to be changed into his name.

37. For the reasons explained below, it is unnecessary to try and resolve this apparent

conflict as to when the defendant resided in the premises. The plaintiff accepts that the

defendant was residing in the premises from 2014 onwards.

38. While the apparent conflict may not be of legal significance, the exchange of

correspondence is important for another reason. It is clear that the plaintiff at all times

referred to the tenancy of Angela Doody and that she expressly rejected the proposition

that she should recognise anyone else as the tenant of the premises.

39. On the 4th of December 2012, the plaintiff’s solicitor wrote to the Housing Association

for Integrated Living, stating that Brian Doody Jnr was not recognised as a tenant and

7 that the only recognised tenant was Angela Doody “in her lifetime.” It appears as though

the letter from Brian Doody Jnr exhibited by the defendant was a response to this.

40. All of the correspondence thereafter on behalf of the plaintiff responding to Brian

Doody Jnr’s request to be recognised as the tenant clearly refers to the “tenancy of

Angela Doody.”

41. In 2014, after a phone call from the defendant, there was a further exchange of

correspondence wherein the defendant requested to act on behalf of Angela Doody in

relation to her tenancy.

42. Thereafter, there was correspondence with the defendant in relation to arrears of rent.

Again, in this correspondence, the plaintiff’s solicitors clearly refer to the “tenancy of

Angela Doody.”

43. At no point in that correspondence does the defendant claim that he is, in fact, the

tenant.

44. In the defendant’s second affidavit, he said, without prejudice to the argument in his

first affidavit, that he was the tenant of the premises at the date of his mother’s death:

“… any tenancy of the Property vested in my mother Angela Doody immediately

prior to her death would not have terminated on her death but would have

survived her death and formed part of her estate albeit with the restrictions on

recovery of possession contained in the Housing (Private Rented Dwellings) Act

removed.”

8 45. He said that he is a tenant of the premises in his “own right” and that this tenancy comes

within the scope of the Residential Tenancies Act 2004 (“the 2004 Act”). He said that

the plaintiff:

“… cannot lawfully demand possession of the Property where there is a valid

tenancy in my favour or, without prejudice to the foregoing, a valid tenancy in

favour of the estate of Angela Doody, which has never been properly determined

by her.”

46. In relation to Angela Doody’s estate, he said that, as a beneficiary, he had made an

application for a grant of probate/administration which was submitted to the probate

office on the 23rd of May 2024.

47. He said that he has been in continuous occupation of the premises since 1962 and that

his brother, Brian Doody Jnr, resided there until 2014. In relation to the apparent

conflict referred to above, the defendant said that his brother was under psychiatric care

after suffering a breakdown.

48. In his third affidavit, the defendant exhibited a copy of the grant of administration

issued in the estate of Angela Doody on the 10th of October 2024.

49. He also argued that if the tenancy is not a tenancy within the meaning of the 2004 Act,

it is a tenancy requiring determination by notice to quit and that on the expiry of such

a notice he would be entitled, as the personal representative of Angela Doody, to claim

a new tenancy.

9 50. Another aspect of this case which is potentially relevant to one of the arguments made

is that the defendant said on affidavit that he had expended considerable sums of money

on the maintenance and upkeep of the premises, to include what appears to be structural

work.

51. The plaintiff says that she has no access to the premises and that any work completed

was carried out without her consent. She also says that under the terms of the tenancy,

the tenant was responsible for the upkeep and maintenance of the premises and that no

structural alteration was to occur without her consent in writing.

The Position of The Parties

52. In essence, the plaintiff’s case is that the defendant is not and never was a tenant in

respect of the premises, whether a protected tenant or otherwise. After his mother’s

death, no new tenancy arose in favour of the defendant in his own right, whether by

agreement, by implication or by operation of law.

53. The plaintiff says that the relationship of landlord and tenant never subsisted between

the parties and that any attempt to suggest otherwise was specifically abjured by her.

54. The plaintiff submits that no interest in the premises survived the death of Angela

Doody. Further, the defendant cannot claim a tenancy under the 1982 Act as he does

not come within its ambit.

10 55. The plaintiff’s position is that, as the registered owner of the premises on the Register

of Freeholders, she is entitled to an order for possession.

56. The position of the defendant has evolved over time.

57. Refined written legal submissions were filed for the appeal on behalf of the defendant.

Counsel for the defendant sought to rely on those submissions, rather than those filed

in the Circuit Court, as was her entitlement.

58. The defendant says that he has a bona fide defence to the proceedings.

59. Firstly, in the written submissions, the defendant questioned the jurisdiction of the

Circuit Court to hear the proceedings for recovery of the premises on the basis that the

premises were in fact held under a residential tenancy, within the meaning of the 2004

Act, vested in either the defendant personally or in the estate of Angela Doody, of which

he is now the lawfully appointed administrator.

60. The defendant also argued that if the premises were not in fact held under a residential

tenancy at the date of the issue of proceedings, the estate of Angela Doody was entitled

to make a claim for a new tenancy under Part 2 of the Landlord and Tenant

(Amendment) Act 1980 (“the 1980 Act”). He submitted that, as personal representative

of the estate, he should be entitled to retain possession of the premises pending

determination of that claim.

11 Discussion

61. The history and overall context of the passing of the 1982 Act was referred to by both

parties.

62. The protected tenancy scheme based on the Rent Restrictions Act 1960, as amended,

(“the 1960 Act”) was deemed unconstitutional by the Supreme Court in Blake v.

Attorney General [1982] I.R. 117. In particular, the court found that the provisions of

Part II of the Act were unfair and arbitrary, constituted an unjust attack on the property

rights of landlords of controlled dwellings, and were contrary to the provisions of

Article 40.3.2 of the Constitution.

63. The restriction on the right to recover possession contained in Part IV of the Act was

also held to be constitutionally invalid as it failed to have due regard for both the rights

of the landlord and the rights that should have been accorded to tenants having regard

to the common good.

64. An attempt to address the infirmities identified in Blake was made in the Housing

(Private Rented Dwellings) Bill 1981. This was referred to the Supreme Court under

Article 26 of the Constitution. The court found that the provisions of the Bill clearly

constituted an unjust attack upon the property rights of landlords and was accordingly

in contravention of the provisions of Article 40.3.2 of the Constitution.

65. The Oireachtas, by way of the 1982 Act, sought to strike an appropriate and

constitutionally sound balance between the competing interests identified in Blake. In

12 particular, the Act addressed the tension between security of tenure, on the one hand,

and the right of the landlord to recover possession of their private property on the other.

66. Section 8 provides that the Act applied to every dwelling which would, at the

commencement of the Act on the 26th of July 1982, be a controlled dwelling within the

meaning of the 1960 Act.

67. The protections provided by the 1982 Act include:

• reduced rent;

• rent which is fixed with regard to factors including the tenant’s ability to pay;

• access to the Rent Tribunal;

• security of tenure for the lifetime of the protected tenant;

• security of tenure for the lifetime of the spouse of a protected tenant; and

• additional entitlements for family members who outlive them, in certain defined

circumstances.

68. Section 9, which the parties accept is fundamental to this case, provides:

“1. Subject to the provisions of this Part, a person (in this section referred to as

the original tenant) who, immediately before the commencement of this Act, was

a tenant of a dwelling to which section 8 (1) relates (not being a dwelling

referred to in section 8 (2)) shall be entitled to retain possession as the tenant

of the dwelling and that entitlement shall subsist during the lifetime of that

person.

13 2. Subject to the provisions of this Part, a person being the spouse of the original

tenant shall, upon the death of that tenant, if bona fide residing in the dwelling

at the time of his death, be entitled to retain possession as the tenant of the

dwelling and that entitlement shall subsist during the lifetime of the spouse.

3. Subject to the provisions of this Part, a person being a member of the family

of the original tenant shall—

(a) if that tenant dies within the relevant period, upon the death of that

tenant, or

(b) where the spouse of that tenant has become the tenant by virtue of

subsection (2) and dies within the relevant period, upon the death of the

spouse,

if bona fide residing in the dwelling at such death, be entitled to retain

possession as the tenant of the dwelling and that entitlement shall subsist during

the period beginning on the date of such death and ending on the expiration of

the relevant period.

4. Subject to the provisions of this Part, where a member of the family of the

original tenant becomes, by virtue of subsection (3) or this subsection, the

tenant of the dwelling concerned and dies within the relevant period, a person

being another member of that family shall, upon such death, if bona fide

residing in the dwelling at such death, be entitled to retain possession as the

tenant of the dwelling and that entitlement shall subsist during the period

beginning on the date of such death and ending on the expiration of the relevant

period.”

14 69. The ‘relevant period’ means the period of twenty years beginning at the date of

commencement of the Act.

70. Angela Doody’s entitlement to possession upon the death of her husband can be

identified from the terms of subsection 2.

71. It is the agreed position of the parties that the defendant cannot avail of subsection 3,

whereby a family member can retain possession of a property under the Act, as Angela

Doody passed away on the 7th of October 2017, which is outside the relevant period.

72. It is significant in my view that, as is evident from the factual history set out above,

there is nothing to support the proposition that a relationship of landlord and tenant

subsisted between the plaintiff and the defendant at any time.

73. There is nothing which expressly creates a landlord and tenant relationship, nor is there

anything in the evidence from which such a relationship can be inferred. In fact, all of

the evidence points in the other direction.

74. Rent was paid, and received by the plaintiff, on behalf of Angela Doody during her

lifetime. The defendant has never paid rent on his own behalf as a tenant and no rent at

all has been paid or demanded since 2017.

75. Far from there being evidence from which an agreement could be implied, the plaintiff

has expressly and repeatedly abjured any suggestion of there being a tenant of the

15 premises other than the late Angela Doody. This is clear from the history of

correspondence.

76. It is also clear to me that Angela Doody’s tenancy subsisted for her lifetime and

continued to do so despite her being hospitalised and, thereafter, cared for in a nursing

home.

77. Section 9 of the 1982 Act turns on the question of ‘entitlement’ to possession.

78. In my view, Angela Doody was entitled to possession as a tenant and this entitlement

remained unaffected by her hospitalisation or the circumstances requiring her

subsequent care. That entitlement also remained settled regardless of whether one or

both of her sons resided in the premises with her permission.

79. This proposition is expressed in the following way in Wylie on Irish Landlord and

Tenant Law (4th Ed., 2022) at paragraph 29.05:

“… Furthermore, it is clear that continuous personal residence was not always

necessary to attract the protection of the former Rent Restrictions Acts. Thus in

Foley v Galvin the Supreme Court recognised that the tenant may be in

occupation ‘by himself or some member of his family or a caretaker’ or may be

a person ‘who, though not at the moment in actual occupation, does in fact

require the dwelling-house for his own use.’ This view has been applied in

subsequent cases.”

16 80. The Supreme Court case of Foley v. Galvin [1932] I.R. 339 referred to in the passage

above was concerned with the Rent and Mortgage Interest (Restrictions) Act 1923.

Kennedy C.J. held at page 353:

“Now, continuous personal residence is not, in my opinion, always necessary to

constitute the possession of an occupying tenant. I do not propose on this

occasion, as it is not necessary, to attempt a final or exhaustive definition of an

occupying tenant, but certain cases of non-residence will occur to everyone as

being compatible with actual possession of a dwelling-house, as, for instance,

the case of a seaman, which has been mentioned. He may be away on long

voyages for months at a time. Again, I think that a person might be held to be in

actual possession or occupation, for the purposes under consideration, by his

family or dependents, as, for instance, if a man, having an aged parent or sisters

dependent upon him, provides them with a dwelling-house of which he is a

tenant, though he makes it a home for such dependents without rent or other

consideration, and in addition, perhaps, holds another dwelling-house wherein

he himself resides with his immediate family. I am at least prepared to entertain

an argument that such a person is an occupying tenant or tenant in actual

possession within the benefits of the restrictions on eviction contained in the

Act, which are, in my opinion, confined to tenants in actual possession and

occupation of the dwelling-house to which the Act of 1923 applies.”

81. In the same case, FitzGibbon J. said at page 361:

“… I do not say that there are no places in the Act in which the word ‘possession’

may not refer to constructive possession, but I do hold that the tenant who is

entitled to retain possession of his dwelling-house, and who is protected against

17 ejectment therefrom, notwithstanding the determination of his tenancy by efflux

of time or notice to quit, is a tenant who is in actual occupation by himself or

some member of his family, or a caretaker, or who, though not at the moment in

actual occupation, does in fact require the dwelling-house for his own use.”

82. It is plain from the terms of section 9(2) of the 1982 Act that the tenancy to which the

spouse of the original tenant becomes entitled subsists for the lifetime of the spouse.

83. The defendant submits that a tenancy survives for the benefit of his mother’s estate and

further, that this falls within the scope of the 2004 Act. Alternatively, it is suggested that

a ‘new’ tenancy arises in favour of the defendant, also falling within the 2004 Act.

84. The defendant relies on a passage from Wylie wherein the author states at paragraph

21.41:

“On the death of a tenant, his estate, including any tenancy he holds which

survives his death, devolves on and becomes vested in his personal

representatives in accordance with the general law. Where the deceased has left

a will appointing an executor or executors the tenancy vests in him or them

immediately on death by operation of law. Where no executor or executors are

named, or the tenant died intestate, his tenancy vests in his administrators when

they have obtained a grant of administration.”

85. Leaving aside the obvious tension between the defendant’s claim that he was a tenant

of the premises, including while his mother was alive, and the argument that her tenancy

18 survived her death, it seems to me that the above passage does not support the argument

being made.

86. The critical words in the passage from Wylie are, in my view, “which survives his

death.” Therefore, the question as to whether the tenancy survives the tenant’s death is

anterior to the question of in whom it vests after death. I agree with the submission of

counsel for the plaintiff that the above passage would be classically applicable to a

freehold title. However, where one holds a life estate, there is nothing to survive for the

benefit of the estate.

87. I can see nothing in the above passage to displace the plain meaning of the statutory

provision which gave Angela Doody an entitlement to possess the house as tenant for

her life but for no longer. In my view, the tenancy is determined on her death and there

is nothing to vest in her estate.

88. I also agree with the submission of counsel for the plaintiff that the 1982 Act was not

intended to create competing tenancies. Section 9 provides protection for family

members in certain circumstances. If the estate holds the tenancy for a beneficiary,

whether under a will or intestacy, this person may not be the same as the family

members entitled to possession under subsections 3 or 4. If the defendant’s argument is

correct, then the very people given statutory protection, if the relevant circumstances

apply, can be shut out in favour of a beneficiary who may not be and may never have

been bona fide in residence in the premises.

19 89. I cannot see anything in the scheme of the 1982 Act that supports the proposition that

it was intended that a protected tenancy would survive for the benefit of the protected

tenant’s estate. Indeed, it seems entirely contrary to the careful balancing act struck by

the Act.

90. The defendant seeks to rely on a decision from the Tenancy Tribunal in Kenny v.

O’Farrell TR25/DR562/2006 which is summarised in Cassidy and Ring, Landlord and

Tenant Law: The Residential Sector (2nd Edition, 2020) at paragraph 3.70:

“In Kenny v O'Farrell, the tenant of a dwelling was the son of a woman who

had resided in a controlled dwelling. The woman died on 19 July 2000. The

tenancy tribunal found that as she had died before 26 July 2002 and was

succeeded to the tenancy by her son, the 1982 Act continued to apply to the

dwelling until the fifth anniversary of her death. In these circumstances, the

tenancy tribunal was satisfied that the 1982 Act ceased to apply to the dwelling

on 20 July 2005, as did its exclusion from the scope of the RTA 2004 by virtue

of s.3(2)(b). Furthermore, the tenancy tribunal found that as no notice of

intention to claim relief was served under the 1980 Act, and accordingly no

application made for a new tenancy pursuant to its provisions, the possible

exclusion of the PRTB’s jurisdiction by reason of s.3(2)(i) of the RTA 2004 could

also not apply.”

91. However, it is clear in Kenny that the son was a protected tenant in his own right and

there was no dispute that he succeeded his mother within the relevant period.

20 92. It was argued that the protections of the 1982 Act do not survive upon death but the

tenancy simpliciter does. I can see no support for the proposition that the Oireachtas

intended for some bifurcation of the tenancy in this way, resulting in an unprotected

tenancy surviving death and continuing indefinitely. The creation of an indefinite

tenancy divorced from the protections of the Act seems to me to be the very opposite

of what the Act seeks to achieve.

93. The defendant submits that the 1982 Act ceased to apply to the premises, which then

fell within the jurisdiction of the 2004 Act, or alternatively, a new tenancy of the

premises arose in favour of the defendant, also falling within the 2004 Act, because of

Angela Doody’s decision to “vacate” the premises in 2011 and “permanently reside” in

a nursing home, and the “communication of this fact to the Defendant.”

94. The defendant submits that this decision operated as a “relinquishment by her of her

right to continue in possession” under section 9(2) of the 1982 Act.

95. In my view, there is simply no evidence to support these propositions. There is nothing

to suggest that Angela Doody relinquished her rights in the sense contended for.

96. In the course of the hearing, counsel for the defendant conceded that there was no

evidence that the plaintiff had been told that Angela Doody had permanently vacated

the premises and accepted the “significance” of this.

97. Both parties have referred to the long title of the 1982 Act which includes, in relation

to providing security of tenure for the tenants of certain dwellings, provision for:

21 “THE EVENTUAL CESSER OF THE ENTITLEMENT OF SUCH TENANTS TO

RETAIN POSSESSION OF SUCH DWELLINGS”

98. While the 1982 Act does not expressly deal with the issue, the conclusion that the

spousal tenancy of Angela Doody did not survive her death, which occurred outside the

relevant period, is in my view consistent with the statutory scheme and the intention of

the Oireachtas.

99. While counsel for the defendant invited the Court to interpret the Act having regard to

“fairness” and the constitutional rights of tenants generally, I cannot read into the 1982

Act words that are not there. I also do not accept that this interpretation of the Act would

be a “travesty”, leaving certain tenants “with no rights at all” or in a worse position

than all other classes of tenant.

100. The 1982 Act gives significant protections to tenants who come within its provisions

with what is, in effect, a sunset clause, or “long stop” as counsel for the plaintiff put it.

There is no question of the defendant’s rights being attacked or diminished. The falling

away of the tenancy and protections under the 1982 Act is a natural consequence of its

provisions and what the Oireachtas sought to achieve. Counsel for the plaintiff, by way

of analogy, pointed to section 39 of the 2004 Act which provides for the termination of

a tenancy on the death of a tenant, subject to certain conditions.

101. I note that the defendant’s claim that he is entitled to claim a tenancy through his

mother's estate is a claim which was not made by him at any point prior to the issuing

of these proceedings and indeed was not made for some time after. It sits very

22 uncomfortably with the defendant’s claim to be a tenant of the premises in his own

right, a claim which was expressly rejected by the plaintiff.

102. I am also of the view that taking out a grant of administration on the 10th of October

2024 cannot retrospectively create a tenancy where none has existed since 2017. The

artificiality of this argument is illustrated by the seven-year delay in taking out the grant.

An estate-based claim, as a result, also seems to face an unsurmountable hurdle in the

Statute of Limitations 1957.

103. Section 76 of Part 4 of the Residential Tenancies (Amendment) Act 2015 (“the 2015

Act”) dissolved the Tribunal set up under the Housing (Private Rented Dwellings)

(Amendment) Act 1983 (“the 1983 Act”) to deal with certain matters relating to

tenancies controlled under the 1982 Act and transferred its functions to the Residential

Tenancies Board (“the Board”).

104. The defendant submits that this section supports his argument made in relation to the

interpretation of Kenny, as it would be absurd for the Board to have exclusive

jurisdiction under the 2015 Act in respect of controlled tenancies and exclusive

jurisdiction under the 2004 Act in relation to tenancies that had never been controlled,

but not have exclusive jurisdiction in respect of tenancies of dwellings that had

previously been controlled but were no longer.

105. I accept the plaintiff’s argument that for this provision to have any direct application,

the defendant would have to show that he in fact enjoys a tenancy controlled by the

1982 Act.

23 106. Further, the 2015 Act has the effect of transferring to the Board the shrinking number

of cases where the former Tribunal still played a role. I accept that there is nothing

absurd in the Board having jurisdiction in relation to tenancies under the 2004 Act as

well as those falling under the 1983 Act, while having no role in respect of tenancies

that fall under neither.

107. A further alternative argument is advanced by the defendant that, as personal

representative of Angela Doody, he is entitled to claim a new tenancy of the premises

under the ‘long equity’ provisions of Part II of the 1980 Act.

108. This argument rests on the proposition that if the plaintiff is correct in that the tenancy

of Angela Doody has been determined, the defendant, as her personal representative, is

entitled to claim a new tenancy where he can establish one of the matters set out in

section 13(1) of the 1980 Act.

109. If correct, the defendant says that he is entitled to remain in the premises until the claim

is determined under section 28 of the 1980 Act.

110. Section 13(1) provides:

“This Part applies to a tenement at any time if—

(a) the tenement was, during the whole of the period of five years ending

at that time, continuously in the occupation of the person who was the

tenant immediately before that time or of his predecessors in title and

24 bona fide used wholly or partly for the purpose of carrying on a

business, or

(b) the tenement was, during the whole of the period of twenty years

ending at that time, continuously in the occupation of the person who

was the tenant immediately before that time or of his predecessors in

title, or

(c) improvements have been made on the tenement and the tenant would,

if this Part did not apply to the tenement, be entitled to compensation

for those improvements under Part IV and not less than one-half of the

letting value of the tenement at that time is attributable to those

improvements.”

111. The defendant relies on the provisions of subsection (b) in respect of twenty years of

continuous occupation and, to a lesser extent, on subsection (c) in respect of

improvements already referenced in this judgment. The defendant also says that the

time for claiming a new tenancy has not expired as time only runs from service of a

notice to quit or a notice of termination, neither of which have been served in this case.

112. Section 28 provides:

“Where an application is pending under this Part for a new tenancy or to fix the

terms of a new tenancy and the pre-existing tenancy was terminated otherwise

than by ejectment or surrender the tenant may, if he so desires, continue in

occupation of the tenement from the termination of the tenancy until the

application is determined by the Court or, in the event of an appeal, by the final

appellate court, and the tenant shall while so continuing be subject to the terms

25 (including the payment of rent) of such tenancy, but without prejudice to such

recoupments and readjustments as may be necessary in the event of a new

tenancy being granted to commence from such termination.” (Emphasis added.)

113. It is an accepted fact that no such claim is pending for a new tenancy under the 1980

Act. Counsel for the defendant submitted that it is the defendant’s intention to

immediately apply if the first point is resolved against him.

114. Section 20 of the 1980 Act provides that a claim for a new tenancy must be made in the

prescribed form on notice to the person against whom the claim is made. Section 21

provides that once the notice is served, the claimant may apply to court to determine

his right to relief at any time not less than one month after service.

115. The plaintiff submits that where no notice has been served and no application is

pending, section 28 of the 1980 Act has no application.

116. Counsel for the defendant sought to argue that while the defendant has always

contemplated making such an application, he could not do so until a decision of this

Court was reached in relation to his primary argument regarding his claim for a

subsisting tenancy. That argument was characterised as a “preliminary point”, although

it had not been so described before.

117. However, the argument described above arose for the first time in the submissions filed

before this Court, and the plaintiff then filed supplemental submissions to deal with it.

While that is not a criticism, I am not convinced that any steps which might have been

26 taken by the defendant under the 1980 Act were incapable of being taken for the reason

advanced.

118. Counsel for the plaintiff makes the point that if the defendant’s claim is that he has a

tenancy governed by the 2004 Act (a claim which is resisted), then section 192 of the

2004 Act precludes a claim under the 1980 Act after a five-year transition period.

Counsel for the defendant submitted that if the tenancy is determined, the 2004 Act

would not in fact apply and so section 192 would not have this effect.

119. It seems clear that to avail of section 13(1), the defendant would have to say that he was

a tenant, either under the 2004 Act or the 1982 Act, for the stipulated time period

immediately prior to the bringing of an application under the 1980 Act. If he came under

the 2004 Act, section 192 appears to me to act as a bar to his claim. Further, it does not

seem to me that in 2025, the defendant can say that he is a tenant under the 1982 Act

where on any view of it the 1982 Act protections fell away in 2017.

120. In any event, in circumstances where no notice of intention to claim relief has been

served and where there is no application pending, I do not see how section 13(1) of the

1980 Act can amount to a defence to a claim for possession in this case.

Decision

121. The relationship of landlord and tenant has never subsisted between the plaintiff and

the defendant during or after the lifetime of Angela Doody.

122. The defendant has never paid rent qua tenant.

27 123. At all times, the plaintiff received rent from or on behalf of Angela Doody.

124. The rights which Angela Doody enjoyed in relation to the premises came to an end

upon her death.

125. Angela Doody’s tenancy was determined on her death and this tenancy did not vest in

her estate.

126. The defendant cannot establish the existence of a tenancy, whether in his own right or

through the estate of Angela Doody.

127. The plaintiff is the registered owner of the premises and is entitled to an order for

possession.

128. In the event that I found against the defendant, counsel asked me to consider imposing

a stay on any order to facilitate the application, referred to above, under the 1980 Act.

I make no comment on any steps the defendant may wish to take but will not grant a

stay for the purpose suggested.

129. I will, however, hear the parties on the appropriateness of a stay in circumstances where

the defendant has been residing in the premises for a number of years.

28