Procedures and Regulations May Be Ineffective

Procedures May Be Ineffective

New laws are so often introduced that landlords find themselves unaware of failings to comply with the latest regulations. Bottom line, it's the landlords’ sole responsibility to ensure they stick to the rules. There’s no get-out-of-jail card when things go wrong.

Reality is tenants are getting smarter, becoming more educated, and more aware of their rights. Many landlords are unaware of their legal responsibilities and obligations and that can mean an expensive mistake.

Irish landlord and tenant law comprises a mix of common law and statute law, including the Landlord and Tenant Law Amendment Act Ireland 1960; the Conveyancing Act 1882; the Rent Restrictions Act, 1960 and 1967; the Housing (Private Rented Dwellings) Acts 1982-1983; and the Housing (Miscellaneous Provisions) Act, 1992. Most private residential tenancies are covered by the Residential Tenancies Act 2004 and the Residential Tenancies (Amendment) Act 2015. All such tenancies should be registered with the Residential Tenancies Board (RTB).

Since 2004, the RTB replaced the courts in dealing with most disputes between landlords and tenants through its Dispute Resolution Service. The process operates informally with fees but generally without the necessity of legal representation.

A tenant’s main legal rights and responsibilities derive from the landlord and tenant law as well as from any lease or tenancy agreement between the parties. If a tenant signs a lease on a property for a certain amount of time, then that tenant is legally committed to paying rent for that time.

There are no circumstances where a tenant can justify not paying rent. A tenant should never expect a landlord to take rent out of a security deposit when a notice has been served. A tenant is obliged to pay their rent in full and on time until the tenancy ends even where a dispute has arisen with the landlord.

One of the biggest problems for private landlords is tenants who don't pay their rent or don't pay their rent on time. Evicting a tenant who has stopped paying the rent is more difficult than many realise.

To landlords, it can seem as if the system permits a tenant that has stopped paying rent to continue occupying a property (over-holding) while a landlord is out of pocket. When tenants go bad, landlords can face huge difficulties moving them on.

In reality a landlord can do very little until the ‘established’ process has run its course. A landlord should not be tempted to take the law into his/her own hands. A dispute case referred to the RTB about an illegal eviction will be given priority and there are procedures in the Residential Tenancies Act under which an injunction to restrain the landlord may be applied for to the Circuit Court. The fine for an illegal eviction is €20,000.

If a tenant is in a property for less than 6 months and gets into difficulty paying rent a landlord can serve a 28-day Notice of Termination without giving any reason (if there is no lease agreement in place). If a tenant has been renting the property for more than 6-months and the landlord wants to end a tenancy because of rent arrears then the landlord must serve a 14-Day Warning Notice in writing (not an email) for failure to pay rent. This notice must state how much rent is due, give the tenant reasonable time to pay it, and outline what will happen if it isn’t paid. If the tenant fails to pay the rent due in the time period given in the warning notice, the landlord can end the tenancy by serving a 28-Day Notice of Termination.

It is reported that the RTB received over 4,800 applications for dispute resolution in 2016 with a year on year increase of over 20 per cent in dispute applications. In 2017 the RTB reported that it determined on the validity of 693 Notices of Termination where landlords served notice for rent arrears, 553 dispute cases regarding eviction orders and a 24.4 percent increase on 2016 in referrals for ‘overholding’.

But there are two stages to the RTB’s dispute resolution process. Stage 1 is mediation or adjudication. If the two parties do not agree to the mediation process, or if the RTB decides that mediation is not the best option, the case goes to adjudication.

If the parties do not accept the mediator’s or adjudicator’s decision, a dispute can be appealed within 10 days to Stage 2, which is a public hearing by a 3-person Tenancy Tribunal.

A more recent look at (23/04-24/05/2019) RTB dispute cases shows there are more referrals relating to rent arrears and overholding than for other reasons; 95 overholding; 31 arrears; 86 validity of notice referrals. The RTB ruled 67 per cent and 48 per cent in favour of landlords respectively for overholding and arrears disputes.

While determination orders can rule in favour of a tenant repaying rent owed to the landlord, collecting the money at this stage can be difficult.

Where the RTB issues a binding Determination Order and a party refuses to comply with the terms of the determination order, then enforcement proceedings must be brought through the Circuit Court.

Enforcement proceedings of an RTB determination order is permitted under SI 69 of 2018 while the District Court Rules Order 93C set out the procedure to be followed. This procedure should ensure that the applicants who have already gone down the route of going to the RTB will not have to come up with the finances necessary to sustain a Circuit Court action.

The eviction process can take far more than a year between getting a hearing date with the RTB’s dispute resolution service, to a decision, an appeal of a decision by the tenant, an enforcement by the court and an eviction by the sheriff. Combined with all of this recouping the loss of rent arrears due is considered unlikely.

A housing market fit-for-purpose includes an adequate supply of appropriate, affordable rental accommodation of a minimum standard.

Failure to collect or difficulty collecting rents due from tenants and the difficulties that can be encountered moving these tenants on would indicate that the procedures and options introduced in the Residential Tenancies Act to resolve disputes fairly are not working properly.