The wife of boom-time developer Paddy Kelly has failed in her appeal against an order of termination of tenancy made by the Residential Tenancies Board.
The board, in deciding against Maureen Kelly, further ordered that she must pay rent arrears of €60,000 to a landlord that told her the property, which she was also to vacate, was to be sold.
Last January, the Residential Tenancies Board (RTB) made a determination against Ms Kelly, who rented a property on leafy Morehampton Road, Dublin 4, from notice party Miracove Holdings Ltd, from November 2019.
The RTB ruled that the notice of termination of tenancy served by the landlord, Miracove, on Ms Kelly in June 2021 with an end date of January 2022 was valid.
The RTB, the respondent in Ms Kelly's appeal, made further orders directing Ms Kelly to vacate the property within 42 days of the determination order and directed the appellant to pay €60,000, the maximum the RTB can award, in rent arrears to Miracove.
Ms Kelly appealed the RTB decision on termination of tenancy on grounds that the RTB erred in law in finding that there was sufficient evidence to meet the statutory criteria for termination.
The criteria in question is that the landlord “intends… to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of its interest in the property”.
Ms Kelly registered a ‘lis pendens’ regarding the property.
A ‘lis pendens’ puts any third party on notice that there is a pending legal challenge regarding land or property.
The landlord submitted that a ‘lis pendens’ was not a bar to sale but rather a factor that had to be disclosed to any potential buyer, making a sale more difficult. Miracove told the RTB that they could not sell the property in circumstances where they could not get vacant possession.
Ms Kelly had argued that Miracove directors who gave oral evidence in the RTB case were not in situ at the time of the declaration and therefore did not have direct knowledge of the intention to sell the property within nine months of the termination.
The appellant submitted that “the pertinent question was whether there was a bona fide intention to sell”.
The RTB had found that “on the balance of probabilities”, it was satisfied that the landlord had the intention to enter into an enforceable agreement to sell the property within nine months of the January 2022 termination date.
The RTB said it was "not persuaded by the submission that as time passed and the property was not sold, the intention to sell has not been made out".
In his High Court judgment on Thursday, Mr Justice Conleth Bradley dismissed Ms Kelly’s appeal and upheld the RTB’s decision on the termination declaration.
Mr Justice Bradley said that the RTB was entitled to come to the conclusion that there was sufficient evidence in the case that Miracove did intend to sell the property within nine months when it served the notice of termination in June 2021 through the then written declaration of Brian Goulding, a director of Miracove.
Ms Justice Bradley said Miracove had decided not to market the property until it was secured and vacant possession had been established.
“I consider that there was sufficient evidence in this case to establish that Miracove Holdings Ltd intended, within nine months after the termination of the tenancy, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of its interest in the property,” said the judge.
“Accordingly, I refuse the orders sought in the appellant’s originating notice of motion. I shall, therefore, make an order dismissing the appellant’s appeal,” said Mr Justice Bradley.
At the height of the boom, Mr Kelly, one of the country's biggest property developers, was said to be worth €350 million, but in 2010 he told the Irish Times that he actually owed €350 million.
