A teenage boy whose mother died suddenly is not entitled to take over the tenancy of an apartment his mother rented from a housing charity, the High Court has ruled.
Ms Justice Marguerite Bolger rejected a challenge by the boy, suing through his maternal aunt, to a decision by the Clúid Housing Association to terminate the tenancy of the apartment after his mother's death in 2023 as it cannot rent to a child.
The boy and his mother were the occupants of the apartment, and the father, while in the boy's life, lived elsewhere.
The judge noted the boy lived with his maternal grandparents in their home following his mother's death, although he did visit the apartment regularly and spent time there up until Cluid sought to terminate the tenancy.
His maternal aunt was appointed his legal guardian, and she currently lives near the apartment.
In the legal challenge, the aunt said she was willing to move to her sister's apartment, as it is convenient to her place of work. She would care for her nephew there and allow him to continue to reside in the home he shared with his late mother, she said.
The judge said the aunt did not give any explanation as to the suitability or non-suitability of her present accommodation as a residence for her nephew, but she did say she believes it was important for the boy to visit his own home in the aftermath of his mother’s death.
The aunt and the grandmother said it is important for the boy to be able to go to his home, and that losing it would be too much for him, the judge said.
The boy, with the support of his aunt and grandparents, sought declarations, including that a provision of the Residential Tenancies Act 2004 preventing the child from taking over a tenancy breached his constitutional right to equality.
It was also claimed that it was in breach of the European Convention on Human Rights by failing to provide security of tenure for a child of a tenant and/or interfering with his property rights and/or family life rights.
Ireland and the Attorney General, who were the respondents, opposed the challenge.
Tenancy
In her judgment, Mr Justice Bolger said the relevant part of the Residential Tenancies Act (Section 39) provides for a number of circumstances in which a tenancy can be taken over by the occupant of a property at the time of the death of the tenant.
These include the spouse, civil partner, the parents of the tenant or the child of the tenant who is over 18.
So while an adult child could take it over, one under 18 at the age of the death cannot acquire a right of tenancy, she said.
Once they reach 18, they might acquire a right to continue to reside in the property if a qualifying adult took on the tenancy and agreed to allow them to continue living there.
The judge rejected arguments on behalf of the boy that the tenancy law breached the constitutional rights of a child, or the guarantee of the inviolability of the dwelling, or the guarantee of equality before the law.
She also rejected that his Article 8 European Convention right to private and family life was breached. The reliance on Article 8 was misplaced, she said.
Someone under 18, or their legal guardian on their behalf, is not entitled, as a matter of either the child or the guardian’s right derived from their guardianship of the child, to continue to reside in the rented home of their late parent(s), she said.
This is even if the child may derive such a right to continue to reside there from rights that other adult members of their household may be able to invoke, she said.
She found the boy had not discharged the burden of proof on him to establish that the relevant tenancy law is unconstitutional or in breach of the European Convention, she said, refusing the application.
