Couple wins Superior Court that prevents immediate eviction from apartment

A couple won an appeal to the High Court that prevented their immediate removal from an apartment where they were staying after the storm damaged their property.

The Clúid Housing Association, which provides housing for people on the council’s housing lists, had obtained an injunction in the Circuit Court ordering Anthony and Sylvia Whelan to vacate the flat at Burnell Court, Clarehall, Dublin.

On Friday, the High Court reversed that decision.

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

They had made complaints to Clúid about antisocial behavior and other matters before September 2018 when their apartment in Belmayne was severely damaged in a storm.

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

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

By December 19, 2018, they were told that the repairs were complete and were told again in January 2019 when they were also told that if they did not return to Belmayne they could lose their lease.

They did not back down and Clúid decided to make further repairs at Belmayne. Warning letters about legal proceedings were sent to them in September.

Clúid said he intended to start Circuit Court proceedings in March 2020, but did not do so until October 2020 due to the pandemic lockdown.

When the case came before the Circuit Court in March 2021, an injunction was granted ordering them to leave Burnell Court. A short time later, Belmayne’s apartment was rented to another family.

Highest rental rate

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

The Whelans, who continued to pay rent at a higher rate for the second apartment than for the first, said that if the court order were granted, they would be homeless. They also argued that they had acquired tenancy rights by virtue of being at Burnell Court for more than six months.

On Friday, Judge Marguerite Bolger rejected the injunction, saying the matter should be dealt with at a full hearing of the case when all the facts and information are before the court.

The judge said she was not satisfied that Clúid had met the strong test by establishing evidence that her agreement with the Whelans regarding the occupation of the second apartment in September 2019 was a license and not a lease.

The ability of both parties to present their case can be enhanced by discovery and/or oral testimony that can be examined and cross-examined, including from potential witnesses whose affidavits have not been filed in court, he said.

Clúid had first claimed that the Whelan were invading in February 2019, he said. The housing association then decided to do additional repair work on the first apartment which was completed in September 2019.

It found the explanation for the delay in starting a process, in October 2020, to be “unconvincing”.

Even if he was wrong in determining that Clúid had failed to establish a strong case that would prosper at trial, in any event, he was of the opinion that an injunction remained an inappropriate remedy in the circumstances of this case.

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