Monday 18 December 2017

Killiney 'eviction couple' win appeal over apartment rents

Brendan Kelly, (71) and his German-born wife Asta (63)
Brendan Kelly, (71) and his German-born wife Asta (63)

A COUPLE who were evicted from their south Dublin home a year ago have won an appeal against a court order appointing a receiver over rents from five apartments they own.


Retired accountant Brendan Kelly and his wife Asta Kelly were evicted in April last year from their home at St Matthias Wood in Killiney in relation to debts owed to the now liquidated Irish Bank Resolution Corporation.     A video of the eviction was posted on YouTube.



The couple were also landlords of five apartments at The Waterside, Charlotte Quay, Grand Canal Dock, Dublin, on which €30,000 in management fees is now allegedly outstanding.



In June 2011, the apartment managers, Waterside Management Co Ltd, obtained a Circuit Court judgment against them for €9,684 it claimed was due in service charges in relation to those flats for which the couple had been receiving rents.



The debt was not paid and last December, the Circuit Court appointed Waterside's managing agent, Margaret Ryan, as receiver over the rents received by the Kellys.



Last month, the couple, whose address was earlier given as Simmonscourt Castle, Ballsbridge, Dublin, appealed and yesterday the High Court overturned the Circuit Court order.



President of the High Court, Mr Justice Nicholas Kearns, ruled the appointment of a receiver was confined to cases where a debtor has an interest in the property concerned as previously determined in other cases.



He also said it would appear the management company has not exhausted "all reasonably available avenues at law" in seeking to execute the €9,684 judgment.   While there had been difficulties for the management company in contacting the Kellys, there were now no such problems, he said.



The amount of money involved is relatively small and raises a reasonable apprehension that the effect of appointing a receiver would be "disproportionately prejudicial" towards others holding an interest in the properties in question, he added.



Mr Kelly told the court last month all five properties are mortgaged to Permanent TSB and Bank of Scotland Ireland who are entitled to be paid the rents to discharge monthly payments due to them, the bulk of which is €4,318 per month to PTSB. 



The Kellys argued the effect of appointing Ms Ryan as receiver was such as to render her  as landlord, entailing certain statutory duties, which she (Ms Ryan) showed no intention or ability to perform.   They also claimed the appointment of a receiver deprived them of a source of income, violating their right to earn a livelihood.



The management company argued the appointment of a receiver was reasonable in circumstances where there had been difficulties in locating the Kellys to serve proceedings.

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