Thursday 26 April 2018

High Court orders woman, her sick husband, son and his partner to leave fund-owned home

The High Court, Dublin
The High Court, Dublin

Tim Healy

A fund has secured High Court orders requiring a woman, her ill husband, their son and his partner to leave a Dublin property they do not own but consider to be their family home.

Havbell Designated Activity Company secured an injunction, which is to remain in place pending the final outcome of the case, against Maria Isabel Dias, otherwise Harvey, restraining trespass to a six bedroom property at 1/2 Phibsboro Road she and her family  had been living at since 2014.

On Tuesday, Ms Justice Caroline Costello found the fund was entitled to possession of the property.

The fund had established its rights to the property.

The Judge said Ms Dias could not provide a defence to the fund's claim for possession.

The defendant was unable to to establish even an arguable case that she had an entitlement to occupy the property which would bind the fund. It followed that the defendant was a trespasser on the property.

Even if she was incorrect on that point the judge said that the fund had made out a very strong case and damages would not be an adequate remedy.

The Judge added that despite the fact Ms Dias and her family reside at the property the premises could not be described as a family home within the meaning of the Family Home Protection Act 1976.

The judge also noted that Ms Dias had profited from the use of the building as a guesthouse through the AirBnB website.

She also said that there was no legal obligation on the fund to negotiate with Ms Dias for the sale of the property. It was a matter for the fund if it wishes to sell the property on the open market with vacant possession

Ms Dias had opposed the application on grounds including she was in occupation of the premises on foot of a valid tenancy agreement, and that she had an equitable interest in the property having spent between €50,000 to €80,000 on repairing, maintaining and restoring the property.

She also claimed that she had an option to buy the property. 

She claimed she was prepared to pay the "market rate" of €475,000 for it but Havbell  is refusing to engage with her.

Ms Dias, represented by Vincent Martin SC, claimed she entered tenancy agreements from mid 2014 with the original owner of the property, John Rooney, paid rent to him for some 13 months and offered to pay rent to the fund but it refused her offer.

She had also claimed was delay by the fund and abuse of process due to its failure to progress earlier Circuit Court proceedings for possession.

The fund, represented by Anthony Thuillier Bl,  said it owns the property and had argued that Ms Dias and members of her family have enjoyed rent free over some three years.

It was never a principal private residence and it is entitled to vacant possession, counsel said.

The fund also claimed property was from around 2015 offered for rent on the Air B&B website and Ms Dias profited from that.

The fund acquired a €2.3m loan by PTSB to the property's former owner, John Rooney, of Windermere, Myrtleville, Crosshaven, Co Cork, which was charged on the Phibsboro property.

The Judge adjourned the matter for final orders to a date in April.

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