About this case:

• Citation:
  [2025] IEHC 384
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Phelan

Delivering judgment for the High Court, Ms Justice Siobhán Phelan confirmed that “the 2004 Act is not concerned with succession nor with title to property. The Tenancy Tribunal is established pursuant to statute with jurisdiction limited by and deriving from statute, namely, the 2004 Act and the Act expressly provides that the Tribunal shall not determine questions of title.”

Background

Following the death of the appellant tenant’s former landlord, the notice party, being the deceased’s widow, executor and sole beneficiary to his estate, served a notice of termination on the tenant in November 2022 with the expressed intention of moving her granddaughter into the property for an indefinite period.

The rental property formed part of the deceased’s estate and prior to the deceased’s death, rent monies were paid into an account held in the joint names of the deceased and the notice party, rendering her a recipient of rent prior to her husband’s death. The property was registered in the sole name of the deceased.

On 1 September 2023, the tenant applied to the respondent pursuant to s.78 of the Residential Tenancies Act 2004. An adjudicator of the respondent determined that the notice of termination was invalid.

The notice party lodged an appeal. The tenant challenged the validity of the notice of termination before the Residential Tenancies Tribunal on various grounds, including the status and capacity of the notice party to terminate a tenancy for her own or for family use.

In particular, the tenant maintained that the notice party was not entitled to terminate the tenancy as probate had not been granted on the date of service of the notice of termination and that the tenancy could not be terminated by the notice party until the title had vested in her by way of “assent”.

In that regard, the tenant argued that one of the main roles of an executor is to preserve assets for the benefit of any potential creditors and that while an executor may be entitled to collect rent, until she was able to “assent” the property to herself she could not put a relative into the property. 

The Residential Tenancies Tribunal

Having considered the oral evidence and documentation submitted, the Tribunal found that 2004 Act provides a critical test for landlord status, being the entitlement to receive rent from the tenant.

The Tribunal was satisfied that the notice party, as personal representative of the deceased and joint account holder of the bank account into which rents were paid, was entitled to collect rent from the tenant and was the landlord within the meaning of the 2004 Act.

The Tribunal also highlighted that it was precluded, pursuant to s.110 of the 2004 Act, from enquiring into matters of title. 

Accordingly, where the Tribunal was satisfied that the notice party was the person entitled to receive rent, the absence of a grant of probate at the time of serving the notice of termination did not invalid the notice and she had legal capacity to serve same on the tenant.

On 4 December 2024, the respondent made a determination order as against the tenant arising from the report and findings of the Tribunal.

Appeal

The tenant appealed to the High Court on a point of law, alleging that the Tribunal erred in law by wrongly holding that an executor who had not taken an assent of the property was entitled to form an intention to move in a family member for an indefinite period, and by failing to deal with his submission that an executor who had not taken an assent of the property was not in a position to form an intention to move in a family member for an indefinite period.

The High Court

At the outset of her judgment, Ms Justice Phelan set out the relevant provisions of the 2004 Act and the scope of the High Court’s jurisdiction on an appeal on a point of law, noting inter alia that the court was not free to substitute its findings for that of the decision-maker.

Having regard to the Tribunal’s decision, the court set out that the tribunal had properly satisfied itself on the balance of probabilities that the notice party required the dwelling for the use of her granddaughter, and had concluded that her requirement for vacant possession of the dwelling was genuine and lawful and that there had been compliance with statutory notice periods applicable in the case of a tenancy covered by Part 4 of the 2004 Act, being one of greater than six months’ duration.

In particular, the judge highlighted that the tenant neither queried the Tribunal’s decision on the genuineness of the notice party’s intention to make the property available for occupation by her granddaughter, nor her compliance with statutory notice period.

Noting the tenant’s reliance on the succession law concept of an “assent”, being an instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject matter of same to the person entitled to it, Ms Justice Phelan was not convinced that the absence of an assent was determinative of who the “landlord” was for the purposes of the 2004 Act.

The High Court stated that it was clear from s.5 of the 2004 Act that the term “landlord” was tied to the entitlement to receive rent paid in respect of the subject dwelling, without reference to the legal status or capacity of the person entitled to receive the rent, save that a person who receives as “agent” is excluded from the definition.

The court considered that the Tribunal had properly identified the relevant test and observed that the tenant at times had referred to the s.5 definition as if it excluded a “representative” rather than an “agent”, in ignorance of the fact that a personal representative and agent had different definitions under the 2004 Act and bore different legal meanings.

Ms Justice Phelan was satisfied that the notice party had dealt with the tenant not as agent for the deceased but as landlord in her own right, and that the only relevant question for the Tribunal was who was entitled to receive the rent, and that the evidence had established that the notice party was so entitled.

The judge emphasised: “The fact that a tenancy is terminated to allow for occupation of a property by a family member of the landlord is not necessarily in any way inconsistent with a duty to maintain the estate for the benefit of creditors, if any, pending full administration of the estate.”

The court concluded that the Tribunal had properly engaged with the questions raised within the parameters of its jurisdiction under the 2004 Act and that it was not its function to determine questions relating to the duties of personal representatives under the Succession Act 1965 or title to property.

Conclusion

Accordingly, the High Court found no error of law on part of the Tribunal and upheld the respondent’s determination order.

Ó Laoire  v The Residential Tenancies Board [2025] IEHC 384