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, to remain in place pending the outcome of the full case, against Maria (otherwise Mariah) Isabel Dias (otherwise Harvey), restraining trespass to a six-bedroom property at 1/2 Phibsborough Road where she and her family have been living since 2014.
In her judgment on Tuesday, Ms Justice Caroline Costello found the fund was entitled to possession of the property, had established its rights to the property and 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, the judge said. It followed the defendant was a trespasser on the property.
Even if she was incorrect on that point, the judge said the fund had made out a very strong case and damages would not be an adequate remedy should the injunction be refused.
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, she said.
Ms Dias, she noted, had profited from the use of the building as a guesthouse through the Airbnb website.
There was also no legal obligation on the fund to negotiate with Ms Dias for the sale of the property and 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 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 was 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 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 Ms Dias and members of her family have lived there 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 the property was from around 2015 offered for rent on the Airbnb website and Ms Dias profited from that.
The fund had acquired a €2.3 million loan by PTSB to the property’s former owner, John Rooney, of Windermere, Myrtleville, Crosshaven, Co Cork, which was charged on the Phibsborough property.