Argutinski v Residential Tenancies Board

APPROVED [2026] IEHC 225 THE HIGH COURT 2024 479 MCA IN THE MATTER OF THE RESIDENTIAL TENANCIES ACT 2004 BETWEEN ROMAN ARGUTINSKI APPELLANT AND RESIDENTIAL TENANCIES BOARD RESPONDENT JUDGMENT of Mr. Justice Garrett Simons delivered ex tempore on 12 March 2026 INTRODUCTION 1. This is my ruling in relation to an appeal pursuant to Section 123 of the Residential Tenancies Act 2004. It is an appeal on a point of law only. The principal issue on the appeal is whether a notice of termination, which had purportedly been served on the Tenant, was valid. That was the central issue: there was a related issue in connection with the warning notice, which had 2 preceded the notice of termination. However, in light of a development that has occurred in the case, it is only necessary for me to deal with the principal issue. NOTICE OF TERMINATION 2. The notice of termination reads as follows: “Your tenancy of the dwelling at: Flat 6, 20 Blessington Street will terminate on: 18/02/2023 You must vacate and give up possession of the dwelling on or before the termination date. The reason for the termination of the tenancy is due to the breach of tenancy obligations in that you have failed to pay rent on the dates it fell due for payment. The amount of rent owed on the date of this notice is €4,050.00. Rent amount is €450, 9 months rent is owed. You have the whole of the 24 hours of the termination date to vacate and give up possession of the above dwelling. Any issue as to the validity of this notice or the right of the landlord to serve it, must be referred for dispute resolution to the Residential Tenancies Board under Part 6 of the Residential Tenancies Act 2004 to 2020 within 28 days from the date of receipt of it. This notice is served on 21/01/2023 Signed Martin Property Consultants” DISCUSSION 3. The factual record before the Tenancy Tribunal established that the notice of termination had been posted on 21 January 2023. The Tenant gave evidence that he had received same on 23 January 2023. It is significant that the person 3 representing the Landlord at the Tenancy Tribunal hearing did not seek to cross- examine the Tenant in relation to that. Accordingly, that piece of evidence, i.e. that the notice of termination was received on 23 January, stood unchallenged. 4. The approach adopted on behalf of the Landlord—and the approach ultimately accepted by the Tenancy Tribunal—had been that it was the date of posting that mattered. The position is stated as follows (at §7(3) of the formal determination): “In respect of the warning letter and the Notice of Termination, the determinative date as regards compliance with the requirements of onwards copying of both to the RTB is not, as contended by the Tenant, the date he received them but the date they were served. The date of service when a letter or notice is posted is the date the landlord or agent actually posts the letter and not the date it is received by a tenant; if it was the latter date it would be impossible for a landlord to know when it had been received and when therefore to send the copy to the RTB. The Tenant speculated that it was possible that some of the documents had been handed (sic) delivered. However, the evidence of Mr. Martin was that the warning letter and Notice of Termination had been posted and the Tribunal accepts this evidence rather than the speculation on the Tenant’s part, based in part on the absence of An Post franking on one of the envelopes.” 5. There is an internal contradiction in the formal determination in that the Tenancy Tribunal, having accepted as a fact that the notice of termination had been posted on 21 January, went on to find, inexplicably, that the date of service was 20 January. See §7(5) as follows: “As regards the Notice of Termination dated 20 January 2023 and with a service date of 21 January 2023, it is quite clear from the email to the RTB dated 20 January 2023 that this clearly states it is attaching a notice of termination served on 21 January 2023 i.e. the day after, when it was actually served on 20 January 2023. The Tribunal finds that the date of service was 20 January 2023 which date was stated on the 4 Notice and is satisfied that the requirements of s.35(11) of the Act have therefore been complied with.” 6. Moreover, the Tenancy Tribunal did not consider the implications of Section 25 of the Interpretation Act 2005 which reads as follows: “Where an enactment authorises or requires a document to be served by post, by using the word ‘serve’, ‘give’, ‘deliver’, ‘send’ or any other word or expression, the service of the document may be effected by properly addressing, prepaying (where required) and posting a letter containing the document, and in that case the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 7. The first point to be made is that the Tenancy Tribunal erred in law in thinking that a document should be deemed to have been “served” on the day upon which it is posted. In truth, a document is to be treated as having been served either on the date upon which it would be delivered in the “ordinary course of post”, or, alternatively on the date of actual receipt, if the evidence establishes that this is a different date than the deemed date. In this case, the unchallenged evidence before the Tenancy Tribunal had been that the notice of termination had been received on 23 January. This discrepancy is significant in that it has implications for compliance with the requirement to serve a copy of the notice upon the Residential Tenancies Board on the same day. 8. (At the material time, this requirement had been governed by Section 39A of the Residential Tenancies Act 2004 (inserted by the Residential Tenancies and Valuation Act 2020 and subsequently amended by the Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022). Section 35(11) of the RTA 2004 (as amended in 2022) provides that a notice of termination served in contravention of section 39A(1) shall be invalid.) 5 9. The second difficulty with the Tenancy Tribunal’s decision is that there is an inconsistency between the date upon which service was actually effected (23 January) and the date stated on the notice of termination (21 January). 10. I prefer not to rest my decision on these points alone. This is because there are other, more fundamental errors in the notice of termination. 11. The notice of termination has not been signed by any entity which actually exists in law. The notice is purportedly signed by “Martin Property Consultants”. “Martin Property Consultants” is, at the very most, a business name. I do not have any evidence that this name has actually been registered as a business name, but it seems from the correspondence that it is the name or style that had been used by a company named Arckwood Property Management Services Ltd. The point of the matter is that there is no legal entity known as “Martin Property Consultants”. The Residential Tenancies Act 2004 requires that a notice of termination must be signed by the landlord or their authorised agent. Section 62(1) provides, inter alia, that a notice of termination to be valid shall (a) be in writing, (b) be signed by the landlord or his or her authorised agent, and (c) specify the date of service of it. 12. The notice of termination in the present case has not been signed by or on behalf of any entity which actually exists in law, still less by the landlord or an authorised agent. 13. Even if, counterfactually, the notice of termination had been signed by or on behalf of Arckwood Property Management Services Ltd, there was no evidence before the Tenancy Tribunal that this company is the authorised agent of the Landlord. The term “authorised agent” is defined by reference to Section 12(1)(c) of the Residential Tenancies Act 2004. This section obliges a 6 landlord to notify the tenant of the name of the person, if any, who is authorised by the landlord to act on his or her behalf in relation to the tenancy for the time being. 14. In other words, if a landlord requires a tenant to deal with a person or company as its “authorised agent”, the landlord must identify that person or company to the tenant. In this case, the Landlord never directly contacted the Tenant to nominate an authorised agent. It is not sufficient for the party asserting to be the authorised agent to notify a tenant unilaterally; rather, the landlord must do so. 15. The history of communications with the Tenant is as follows. In March 2022, the previous landlords had written, through their solicitors, to say that the property had been sold. The previous landlords’ agents subsequently indicated that they were no longer in a position to accept the payment of rent and that the Tenant should not contact or attend at their offices. It appears that a Mr. Miceal Martin contacted the Tenant, but he did not identify the Landlord and did not explain that he was the Landlord’s authorised agent. This is crucially important because if a tenant is being requested to pay over rent to a person or company other than the landlord, they must first have been notified by the landlord that that person or company is their “authorised agent” and that, as such, can give a valid discharge for any rent paid. 16. In summary, the fact that the notice of termination fails to identify any extant legal entity, whether the landlord or an authorised agent, is a fundamental flaw. There is also a difficulty, which I have already adverted to, that the notice of termination misstates the date of service. 7 CONCLUSION 17. For all of these reasons, I am satisfied that the Tenancy Tribunal’s decision is erroneous in point of law. The Tenancy Tribunal failed to direct its mind to the critical provisions of Section 25 of the Interpretation Act 2005; it disregarded the unchallenged evidence that the notice of termination had only been received on 23 January; and it did not address its mind to the requirement that the termination notice be signed by the landlord or their authorised agent. Although that latter issue was not raised in express terms by the Tenant, who is a litigant in person, he did at all stages make the point that he was doubtful as to who the landlord was. The Tenant expressly raised that as an issue: he made reference to a purported sale and further stated that his enquiries would seem to indicate that it may be the position that only one of the eight apartments within the building had been sold. That was certainly in issue before the Tenancy Tribunal. 18. In fairness to the Tenancy Tribunal, it was clearly conscious that it was entitled to consider matters other than those expressly raised by the Tenant. In particular, the Tenancy Tribunal addressed the question of the service of a notice of termination during the winter period notwithstanding that this issue had not been expressly raised. In circumstances where the question of the identity of the landlord was a central issue in the appeal, the Tenancy Tribunal should have considered the question of whether the notice of termination correctly identified the landlord and had been signed in accordance with the requirement of Section 62 of the RTA 2004. This was so even if the precise point which has since emerged was not articulated in express terms. 19. This issue of compliance with Section 62 of the RTA 2004 arose during the course of the hearing before the High Court. The legal team acting on behalf of 8 the Residential Tenancies Board, very sensibly and very properly, sought to take instructions. They have since confirmed to the court that they are not now seeking to stand over the Tenancy Tribunal’s decision. In those circumstances, I am satisfied that the appeal should be allowed and an order be made directing the Director to cancel the determination order pursuant to Section 123 of the Residential Tenancies Act 2004. 20. I am going to refuse to make an order for remittal. It seems to me that there is a series of errors that were made in relation to the notice of termination. This notice of termination is hopelessly flawed and simply cannot be saved. It would be a waste of everybody’s time to remit the matter to the Residential Tenancies Board. Appearances The appellant represented himself Mark William Murphy SC for the respondent instructed by Byrne Wallace Shields APPROVED 16 APRIL 2026