DUBLIN, Ireland: An under-18-year-old does not have a constitutional right to succeed to a tenancy following the death of their only parent, who rented the apartment they lived in, Ireland's Supreme Court has ruled.

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

On November 26, 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.

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

When Clúid sought 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 from succeeding in tenancy.

The High Court last year rejected the challenge, and they appealed to the Supreme Court.

Their lawyers argued, among other things, that the 2004 Act is underinclusive and that its unconstitutionality lies in its asserted indirect discrimination 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 affected direct discrimination based on age.

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

In the majority judgment, Chief Justice Donal O'Donnell, Justice Peter Charleton, and Justice Seamus Woulfe 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.

Justice Hogan, who dissented, 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.

Also in dissent, Justice Aileen Donnelly concluded that the exclusion of minor children from the 2004 Act's protection is arbitrary and irrational.