The High Court has confirmed that an executor of a deceased landlord’s estate is entitled to serve a valid notice of termination on a tenant for family use, even where probate has not yet issued and the property has not been formally assented to the executor.

The case concerned a widow who was both executor and sole beneficiary of her late husband’s estate. Following her husband’s death, she served a notice of termination on the tenant of an apartment that formed part of the estate, stating that she required the property for occupation by her granddaughter.

Although the rental property was registered in the sole name of the deceased, rent had been paid prior to his death into a joint account held by both spouses.

Tenant’s Objection

The tenant applied to the Residential Tenancies Board (RTB) under section 78 of the Residential Tenancies Act 2004, challenging the notice of termination. While an adjudicator determined that the notice was valid, the tenant appealed to the RTB Tribunal.

The tenant argued that the widow did not have the legal capacity to terminate the tenancy for family use because:

• probate had not issued at the time the notice was served, and

• the property had not been formally assented to her as beneficiary.

It was submitted that an executor’s role is to preserve estate assets for creditors and that, until the property was assented, the executor could not place a family member in occupation.

RTB Tribunal Decision

The Tribunal rejected the tenant’s appeal, finding no error of law. It concluded that the widow qualified as a landlord within the meaning of the 2004 Act and had lawfully served the notice of termination.

High Court Appeal

The tenant appealed to the High Court on a point of law, arguing that the Tribunal erred by allowing an executor, who had not taken an assent of the property, to form an intention to occupy the property with a family member for an indefinite period.

The High Court rejected this argument. The court found that the Tribunal had correctly determined, on the balance of probabilities, that the notice was served for a genuine and lawful purpose, that the statutory notice periods had been complied with, and that the tenant had not challenged the genuineness of the intention or the adequacy of notice.

The judge was not persuaded that the absence of a formal assent was determinative of who constituted the “landlord” for the purposes of the Residential Tenancies Act 2004. The evidence showed that the widow had dealt with the tenant in her own right as landlord, and was entitled to receive the rent.

Importantly, the court emphasised:

“The fact that a tenancy is terminated to allow for occupation of a property by a family member of the landlord is not necessarily in any way inconsistent with a duty to maintain the estate for the benefit of creditors, if any, pending full administration of the estate.”

The judge further noted that it was not the function of the RTB to determine issues relating to the duties of personal representatives under the Succession Act 1965 or questions of title to property.

Decision

The High Court concluded that the Tribunal had acted within its jurisdiction and had not erred in law, and the tenant’s appeal was dismissed.

Key Takeaway

This decision confirms that an executor may lawfully terminate a tenancy for family occupation, provided the statutory requirements are met, even where probate has not yet issued and the estate has not been fully administered.

Ó Laoire v The Residential Tenancies Board [2025] IEHC 384.

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