High Court: Purchaser obtains injunction removing tenants despite property sale being ‘subject to occupancy’
The High Court has granted an interlocutory injunction restraining trespass on a property by tenants despite the plaintiff agreeing to purchase the property “subject to occupancy”. It was held that the defendants had not established that the mortgagee had consented in writing to the creation of the tenancy and therefore the Residential Tenancies Acts did not apply.
About this case:
- Citation: IEHC 436
- Court:High Court
- Judge:Ms Justice Siobhán Phelan
Ms Justice Siobhán Phelan applied Kennedy v. O’Kelly  IECA 288 and AIB v. Fitzgerald  IEHC 172 to the facts of the case and held that the plaintiff had a strong case that the defendants were trespassers. Further, the court held that the balance of convenience favoured dispossessing the defendants even if they faced substantial difficulties finding new accommodation.
The plaintiff, Shay Murtagh Limited, purchased the leasehold interest in a property in Westmeath from the vendors acting by their receiver. A contract of sale was concluded on 25 November 2021. A special condition of the sale was that the property was “sold subject to and with an occupancy”.
Further, the special condition went on to state that “the vendor does not hold a copy of any leases or any information relating to the occupiers in the property in sale” and that “the receiver is not receiving rent” from the property. The plaintiff was registered as owner of the property in January 2022.
The defendant and several unknown people were living in the property at the time. The plaintiff alleged that they had been installed by the vendors and that the residents were engaging in anti-social behaviour.
The plaintiff issued proceedings in the Circuit Court seeking an injunction restraining trespass on the property and the delivery of vacant possession. The plaintiff also issued an application for an interlocutory injunction restraining trespass and delivery of vacant possession.
The orders were granted by the Circuit Court and the named defendant appealed to the High Court. The principal submission made by the named defendant was that he had resided in the property since October 2021 on foot of a tenancy agreement signed by the former owner. It was argued that the plaintiff purchased the property in the knowledge that it was subject to occupancy. Accordingly, it was said that the defendant qualified for a Part 4 tenancy under the Residential Tenancies Acts.
In response, the plaintiff exhibited the mortgage deed which was originally agreed between the former owner and Permanent TSB. The mortgage contained a restrictive covenant that the owner would not grant any lease or tenancy to the property without the prior written consent of PTSB. It was claimed that the former owner had never obtained such permission.
As such, the plaintiff relied on case law which stated that, in the absence of such consent, the tenancy was not valid and the residents were unlawfully trespassing on the property (Kennedy v. O’Kelly; AIB v. Fitzgerald).
Further, the defendant relied on Clare County Council v. McDonagh and McDonagh  IESC 15, stating that he was a recovering addict with serious health issues and would be rendered homeless by the injunction. As such, it was said that a proportionality assessment necessitated a refusal of the injunction.
Ms Justice Phelan began by outlining the affidavit evidence of the plaintiff. It was noted that the evidence was not detailed, particularly as it related to claims of anti-social behaviour in the property. The plaintiff’s deponent also did not disclose his means of knowledge in terms of his familiarity with the previous occupation of the property when he stated that the trespass first occurred after the purchase.
The plaintiff also asserted “in very bare terms” that other residents, gardaí and members of the management company had contacted the plaintiff regarding anti-social behaviour. No particulars of incurred costs were given for alleged liabilities relating to the actions of residents. As such, the court did not attach much weight to these allegations.
The court was satisfied that the register was conclusive proof of ownership and that the plaintiff was the lawful owner of the property. Considering Kennedy v. O’Kelly, the court held that the lack of consent or notice to PTSB of the tenancy meant that the plaintiff had a strong case that it was entitled to possession and that the defendant was a trespasser.
The court said that the plaintiff “cannot be bound by a lease, even if it was at the time of purchase aware from the Contract for Sale of an ‘occupancy’, because the tenancy was not lawfully entered into absent the consent in writing of the mortgagee”. This was fortified by the decision in AIB v. Fitzgerald.
Since there was no valid tenancy, the court did not need to consider any issues relating to the entitlement to pay rent or other matters relating to an RTB complaint. It was held that the possibility remained that the defendant could establish a lawful tenancy at trial but this was highly unlikely.
The court noted a line of authority that, once trespass had been established, there was no need to consider the Maha Lingham test (see Keating & Co Limited v. Jervis Shopping Centre  1 I.R. 512). However, since there was the possibility that the defendant could establish a valid tenancy, the court was not satisfied to grant the injunction ex debito justitiae.
Considering the balance of convenience, the court noted that the defendant’s tenancy, if valid, could still have been terminated and he was on notice of the “precarious nature of his occupation” for months. As such, he already had plenty of time to seek alternative accommodation.
Finally, the court considered whether it was proportionate to dispossess the defendant of the property (Clare County Council v. McDonagh and McDonagh). It was held that the McDonagh case related to public property, rather than private property, and therefore could not prevent the injunction. While the defendants clearly faced difficulties being removed from the property, the first duty of the court was to vindicate the property rights of the private landowner.
The plaintiff had established a strong case that the defendant and other occupiers were trespassers and the plaintiff was under no legal duty to provide for their accommodation. As such, the court granted the injunction.
Shay Murtagh Limited v. Cooke and Persons Unknown  IEHC 436