Supreme Court finds under 18s do not have constitutional right to succeed tenancies

High Court Reporter

The Supreme Court has found that an under-18-year-old does not have a constitutional right to succeed a tenancy following the death of their only parent who rented the apartment they lived in.

While a person over 18 who is living with their tenant parents can succeed in tenancy under section 39 of the Residential Tenancies Act 2004, there is no such right for under-18s.

On Wednesday, a five-judge Supreme Court, by a majority of 3-2, dismissed an appeal against a decision that the teenager involved in this case had failed to discharge the burden of proof that section 39 of the 2004 Act was contrary to Article 40.1 of the Constitution or unconstitutional on the basis of any other provision.

The boy lived with his mother in an apartment she rented from the non-profit housing association, Clúid, in 2022. While on holiday abroad in 2023, she died in tragic and violent circumstances. He was 14 and went to live with his grandparents. He is now 17.

When it became apparent that Clúid would seek possession of the apartment, his aunt, on behalf of her nephew, commenced High Court proceedings against Ireland and the Attorney General, challenging the repossession move and the constitutionality of the provision preventing under-18s succeeding in tenancy.

The High Court last year rejected the challenge and they got an appeal to the Supreme Court.

In their case, their lawyers argued, among other things, that the 2004 Act is underinclusive and that the unconstitutionality lies in the fact that it is asserted to be indirectly discriminatory against single-parent families.

The Irish Human Rights and Equality Commission (IHREC), which was joined as an amicus curiae in the case, argued that the section of the Act effected a direct discrimination based on age.

Clúid, which was a notice party, had agreed not to re-let the flat pending determination of the proceedings, the court heard.

In the majority judgment given by Chief Justice Donal O'Donnell, with whom Mr Justice Peter Charleton and Mr Justice Seamus Woulfe agreed, the court found that a distinction between adults and minors is a rational one which is commonplace in the law, in the field of tenancies, and in the Constitution itself.

Chief Justice O'Donnell also found that the test for unconstitutional inequality on the basis of age, and in particular, in respect of a distinction between adults and children, is whether the law bears a rational relation to the objective of the legislation.

In one of two dissenting judgments, Mr Justice Gerard Hogan considered that the the Oireachtas was (and is) in breach of its constitutional obligation to uphold and protect the inviolability of the dwelling as contained in Article 40.5 and when read in the case of a minor child in conjunction with Article 42A.1, by failing to provide for any mechanism whatsoever whereby a child under 18 can seek to succeed the tenancy.

To that extent, he allowed the appeal.

Mr Justice Hogan also invited the parties to make submissions as to whether a further order requiring the Oireachtas to legislate by a specified date is actually necessary or even appropriate.

In her dissenting judgment, Ms Justice Aileen Donnelly concluded that the exclusion of minor children from the 2004 Act protection is arbitrary and irrational.

In light of the Thirty-First Amendment to the Constitution which recognises and protects the rights of the child, she found this provision of the Act to be inconsistent with Article 40.1 of the Constitution.

In his majority judgment, the Chief Justice said if the boy became a tenant, it would be particularly problematic in the context of an approved housing body such as Clúid.

"It would mean both in theory and in practice, that any person can become a tenant, for an unlimited period who does not satisfy the approved housing body’s criteria for tenants, in this case the fundamental criterion of a demonstration of a housing need," he said.

He also said the limitation of the statutory right of succession to children over 18 is not irrational.