by Jackie Buckley , John Deignan July-24-2015 in Property
In the current climate of housing shortages and increasing rents, many people find themselves looking for cheaper and more convenient accommodation, particularly in city centre locations. This can take numerous forms and, for some, can last for many years. Jackie Buckley and John Deignan look at the potential pitfalls involved.
It is important to note that this type of accommodation does not always bring the same level of protection that one would expect in a traditional letting situation and will not necessarily benefit from the protections afforded by the Private Residential Tenancies Act 2004 (“the Act”).
In many cases the issue to be considered will centre on whether or not the tenant has occupied a “dwelling”. This was addressed in the recent case of Tully v Private Residential Tenancies Board and Myrtle Roberts where the High Court upheld the decision of the Private Residential Tenancies Board Tribunal (“the Tribunal”) that the tenant did not occupy a “dwelling”.
Private Residential Tenancies Board
In March 2013, the tenant lodged a complaint against the landlord, with the Private Residential Tenancies Board (PRTB) in respect of a premises located at Newcastle, Co. Wicklow in which the tenant and the landlord both resided. The tenant had been residing in the property for some nine years prior to commencing proceedings. The landlord also ran a B&B in addition to providing rental accommodation to another tenant.
At first instance, a PRTB Adjudicator determined that the PRTB had no jurisdiction to assess the complaint based on the finding that the property was not “a dwelling the subject of a tenancy” under the Act. The tenant appealed to the Tribunal which upheld the Adjudicator’s decision. The tenant then appealed the decision to the High Court.
The High Court noted that section 3 (1) of the Act provides that the Act applies "to every dwelling, the subject of a tenancy." However, section 3 (2) (g) of the Act provides that it does not apply to a dwelling in which a landlord also resides. Furthermore, a "dwelling" is defined to mean "...a property let for rent or valuable consideration as a self-contained residential unit and includes any part of a building used as a dwelling." Thus, the issue was whether the part of the Property occupied by the tenant comprised a “self-contained residential unit”, and therefore a “dwelling”, for the purposes of the Act.
The Tribunal had found that the case did not concern a “self-contained residential unit” noting that the landlord, although accessing the property through a separate entrance, had full access to and use of the entire of the property excluding only the tenant’s bedroom. It noted that the other areas of the property were shared with the landlord, another tenant and guests staying in the B&B.
Accordingly, the High Court found that the Tribunal did not err in law in its interpretation of the provisions of s. 3 (2) (g) of the Act.
The High Court’s ruling therefore has significant implications for the legal relationship between landlords and tenants in circumstances where they share the same accommodation.
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About the Authors
Jackie Buckley
Jackie is Head of the Property team at Hayes solicitors. She is a highly experienced adviser to clients in the banking, public and retail sectors on all aspects of the sale, purchase, leasing, development and financing of properties. She has extensive experience of advising landlords and tenants in insolvency situations and has advised in recent high profile examinerships.
John Deignan
John Deignan is an associate solicitor in the Commercial & Business team at Hayes solicitors. John predominantly specialises in commercial litigation and dispute resolution, and has acted for a wide variety of private companies, State bodies and financial institutions in contract law cases, enforcement and recovery actions, commercial landlord and tenant disputes and defamation actions.