A man who alleges he has been living rent-free for more than 15 years in a six-bed house in south Dublin has persuaded the High Court to overturn a finding that he was validly served with a lease termination notice.
John O’Gara successfully argued there was no evidence allowing the Residential Tenancies Board (RTB) to conclude he was a tenant at the detached property, which sits on half an acre in Rathfarnham.
He denies the existence of any tenancy and claims ownership of the house on Ballyboden Road by adverse possession.
Setting out the background, Mr Justice Anthony Barr said Mr O’Gara did not participate in the RTB hearing of last September as he maintained no tenancy existed between him and Patrick Fitzgerald, who purchased the property from a receiver in June 2022.
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The house was advertised as having an advised minimum value of €1 million.
Mr Fitzgerald told the RTB the property had been advertised as subject to a tenancy under terms unknown and there were no viewings prior to the online auction. He said he spoke to the previous owner of the house who said he let the property to Mr O’Gara in 2007.
Mr Fitzgerald said the man was not very clear on details, saying he believed the rent was €2,000 a month. He said the man said it was paid monthly for about 12-18 months before AIB took over the rent collection and he and his co-owner had no further involvement.
Two weeks after purchasing the house, Mr Fitzgerald said, he sent Mr O’Gara a demand for rent of €4,500, which was based on present-day rental income for similar properties. He said he registered the “tenancy” with the RTB.
He said Mr O’Gara did not pay any rent and has refused to let him access the property.
The judge said Mr Fitzgerald served Mr O’Gara with a warning letter in August 2022 and a notice of termination the following month.
The RTB tribunal accepted a notification of rental arrears was valid and the notice of termination was validly served. It determined Mr O’Gara should vacate the property by September 13th, 2023.
Mr O’Gara appealed to the High Court which, on Wednesday, found there was no evidence before the RTB tribunal of any tenancy between Mr O’Gara and Mr Fitzgerald.
Mr Justice Barr noted a tenancy was registered in 2007 that named Mr O’Gara and two others, and another was registered in 2011 naming Mr O’Gara. However, he said, it is accepted that RTB registration does not create a tenancy.
In the absence of evidence of the existence of any tenancy agreement since 2007, the RTB lacked jurisdiction to deal with the matter and was in error in finding the notice of termination was valid, the judge ruled.
He said Mr O’Gara’s appeal must succeed. He set aside the RTB tribunal’s report and remitted the matter back to the RTB to consider it afresh.
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