Friday, May 20, 2022

High Court reporters

A couple have won a High Court appeal preventing their immediate removal from an apartment where they were housed following storm damage to their own property.

Clúid Housing Association, which provides homes for people on council  housing lists, had obtained an injunction in the Circuit Court ordering that Anthony and Sylvia Whelan leave the apartment at Burnell Court, Clarehall, Dublin.

On Friday, the High Court overturned that decision. 

They had lived at an apartment in Belmayne, Malahide Road, Dublin, under a tenancy from Clúid, since 2014.  

They had made complaints to Clúid about anti-social behaviour and other matters before September 2018 when their apartment at Belmayne was badly damaged by a storm.

Move out

They had to move out to allow repairs be done and were put up first in a hotel, then self-catering accommodation, which they found unsatisfactory.  Clúid then agreed to move them to Burnell Court on what the housing association said was a temporary basis.

Shortly after moving to Burnell Court, they told Clúid they wanted to stay there.  Clúid said it made it clear to them it was temporary and would have to return after repair work at Belmayne was completed.

By December 19th, 2018, they were told repairs were complete, and they were told again in January 2019 when they were also informed that if they did not move back to Belmayne they could lose their tenancy. 

Further repairs

They did not move back and Clúid decided to carry out further repairs to Belmayne.  By September warning letters were sent to them about legal proceedings.  

Clúid said it had intended to bring Circuit Court proceedings in March 2020 but did not do so until October 2020 because of the pandemic lockdown.  

When the case came before the Circuit Court in March 2021, an injunction was granted ordering them to leave Burnell Court.  Shortly afterwards, the Belmayne apartment was rented out to another family.  

The Whelans appealed to the High Court and Clúid opposed the appeal.

The Whelans, who continued paying rent at a higher rate for the second apartment than the first said if the injunction was granted they would be rendered homeless.  They also argued they had acquired tenancy rights by virtue of being in Burnell Court for more than six months.

On Friday Ms Justice Marguerite Bolger refused the injunction and said the matter should be dealt with at a full hearing of the case when all the facts and information will be before the court.  

The judge said she was not satisfied Clúid  had discharged the strong test in establishing evidence that their agreement with the Whelans in relation to their occupation of the second apartment in September 2019 was a licence and not a tenancy.

The ability of both sides to make their case may be improved by discovery and/or oral testimony that can be examined  and cross-examined, including from potential witnesses whose evidence on affidavit has not been put before the court, she said. 

Clúid had first asserted that the Whelans were trespassing in February 2019, she said. The housing association then decided to carry out additional repair works on the first apartment   which were completed by September 2019.

She found the explanation for the delay in bringing proceedings, in October 2020, to be “unconvincing”.

Even if she was incorrect in finding Clúid had failed to establish a strong case that will succeed at trial, she was in any event of the view that an injunction was still an  inappropriate remedy in the circumstances of this case.


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