The High Court recently confirmed the law governing the rights of a residential tenant while an appeal against a determination order is pending.
In the matter of Carroll v Residential Tenancies Board (2021), Mr Justice Simons issued a judgment on 3 September 2021 in an injunction application by a tenant against a landlord who had re-entered the dwelling and changed the locks while an appeal by the tenant to the High Court was pending.
The background to this matter is the landlord had served a notice of termination on the tenant on the grounds of alleged anti-social behaviour. The matter came before the Tenancy Tribunal of the Residential Tenancies Board, which heard submissions from both parties and in June 2021 issued a determination order requiring the tenant to vacate the dwelling. The tenant appealed that order to the High Court on a point of law within the statutory period of 21 days. While the appeal was pending, the landlord re-entered the dwelling and changed the locks.
During the summer recess, the tenant brought an injunction application before the High Court. The duty judge, Mr Justice Simons, granted an interim injunction ordering the landlord to allow the tenant back into the dwelling and deliver up to him the keys to the new locks pending the appeal being heard. The landlord failed to abide by this order and when the matter came back before the High Court two days later, this time before Mr Justice Hunt, the court extended the interim injunction and directed that the superintendent at the local Garda Station provide such assistance as required to enforce the order of the High Court.
At paragraph 27 of his judgment, Mr Justice Simons summarised the law as follows:
27. …the combined effect of sections 86 and 123 [of the Residential Tenancies Act 2004] is that a termination of a Part 4 tenancy may not be lawfully effected in circumstances where a statutory appeal has been made to the High Court within time and remains outstanding. It follows, therefore, that a landlord is not entitled to pre-empt the outcome of a statutory appeal by demanding that the High Court put him back in possession of the dwelling and allowing him to exclude the tenant. The tenancy cannot be terminated until the appeal has been determined.
The landlord had contended that the tenant's appeal was "doomed to failure from the outset".
However, at paragraphs 28 and 29, Mr Justice Simons held that:
28. The underlying merits of the statutory appeal do not arise for consideration at this stage precisely because the legislation provides what is to happen in the interregnum. The position might have been different had the legislation been silent on this point.
29. In effect, the Oireachtas has put in place a statutory stay pending the determination of an appeal under section 123 of the Residential Tenancies Act 2004.
When considering an injunction application, the court would usually apply the Campus Oil test, which poses three questions: 1. is there a fair question to be determined? 2. are damages an adequate remedy? 3. does the balance of convenience favour granting the injunction? Where the injunction application concerns an appeal to the High Court in a residential tenancy matter, the judgment of Mr Justice Simons removes the first of these questions.
Landlords of residential properties should note they are not entitled to retake possession of the dwelling while an appeal is pending in the High Court, even where the landlord considers there are no valid grounds for the appeal. An appeal of a determination order brought within the statutory period means the order is unenforceable until the appeal has been determined by the High Court.
Written by Joanne Cooney and Brendan Frawley
 Campus Oil Ltd. v Minister for Industry and Energy (No.2)  IR88
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