Dispute Proceedings (2017)

Board Power to Refuse Dispute

The Board charges a fee for handling disputes.  This is a precondition to  dealing with the dispute.

The Board will not deal with a dispute referred by the landlord if the tenancy has not been registered under the legislation.  The matter may not proceed unless the landlord rectifies the matter within a reasonable time.

If the Board is of the opinion that any dispute referred

• is  statute barred, if before the courts
• is frivolous and vexatious
•  concerns to dwelling to which the legislation does not apply or
• does not fall within the Boards jurisdiction,

the Board serves a notice on the party referring the dispute, stating its opinion and allowing the party the opportunity to make submissions that the opinion is incorrect.  Unless the Board is persuaded to change its opinions, it will decline to deal with the matter.

If the Board does change its opinion, it will advise the other party in writing or furnish to the other party, a copy of the submissions made by the referring party or a summary of them.  Either party may appeal the finding to the Circuit Court.

If the adjudicator or Tribunal forms a view that one of the grounds by which the Board may decline jurisdiction applies, he shall not deal with the dispute.  If the Board has already formed that opinion in the relation to the dispute and submissions have been made and it is subsequently decided that the initial opinion is not well-founded or the Circuit Court reverses the matter, the adjudicator or Tribunal must hear the dispute.

Time Periods

A dispute in relation to rent, in respect of a tenancy that has already been terminated must be referred to the Board within 28 days of termination.

Disputes in relation to the validity of termination notices must be referred within 28 days after receipt.

The Board may on application extent the time.  It does not do so unless the applicant shows good grounds why it should be extended.  The grant or refusal of an extension of time may be referred to appeal to the Circuit Court.

The time limits include periods within which conditions precedent required for referral must be met.

Ongoing Matters

Where the matter is referred to the Board, rent is to continue to be paid unless there is an agreement to suspend it.  If the dispute concerns the rent, the rent cannot be increased without agreement.

The tenancy cannot be terminated unless the notice of termination is served prior to the referral or if served afterwards, the notice required the tenants to terminate the tenancy was 28 days or less and has been given. These exceptions does not apply where the dispute relates to the validity of the notice of termination or the right of the party to serve it.  In that case, the tenancy may not be terminated prior to the adjudication of the dispute.

Remedial action taken by parties after notice of termination is not to be taken into account for the purpose of whether there is or has not been a breach of the tenancy.

Alternative Remedies

An arbitration dispute does not preclude the RTB’s jurisdiction unless it is entered after the dispute has arisen.

If a party has an alternative remedy, of which he take steps to avail, the dispute may not be referred.  If the party who is entitled to avail of and elect for an alternative remedy did not refer the dispute, the Board (the Tribunal or adjudicator) may take account of the existence of the alternative remedy to the extent it thinks just in determining what if any relief should be granted.

Initial Steps by Board

When a dispute is referred to the Board, it may communicate with  the parties to ensure they are fully aware of the issues involved.  It may clarify misunderstandings in relation to the matters concerned and the rights of the parties with a view to having the matters resolved, by agreement without recourse to the procedures under the legislation.

It may contain communications which will be of assistance to the parties including indications based on appropriate assumptions stated of the typical outcomes of issues concerned in determinations of the relevant kind.

Communications must be made to both parties.

Mediation

In normal course, the Board will request each party whether they consent to the dispute being subject to mediation.  If they do, it is referred to a mediator appointed from a panel.  If either party does not agree, it is referred to an adjudicator from a panel of adjudicators.

If the Board has at the behest of one of the parties made the application for relief to the Circuit Court, it need not refer the dispute to mediation but may instead refer it directly to an adjudicator or the Tribunal. More generally, it may refer directly if it considers it would be more appropriate to do so in the circumstances.

Where there is a reference to mediation, the mediator is to inquire into every aspect of the dispute concerned and  and receive from each party, such information as is appropriate.  He is to make suggestions to each party and take other actions that he considers appropriate to enable the dispute to be resolved.

Notwithstanding that, following a mediation, the parties have signed an agreement that resolves the dispute concerned, each of the parties may, not later than 10 days from the completion of the mediation concerned, notify the mediator and the Board in writing that he or she no longer agrees with that agreement and does not wish to be bound by it.

Post Mediation Report

After termination of mediation, the mediator presents a report to the Board including statements of the relevant facts agreed, particulars in relation to the conduct of the mediation anda summary of other matters agreed whether or not they govern whole or part to resolving the dispute which is to be signed by each of the parties and acknowledged.

The report includes is to include summary of the conduct of the mediation and a list of documents submitted.

Where the report furnished to the states that there is agreement between the parties and that the agreement resolves the dispute,  a period of 10 days has elapsed from the date of the completion of the mediation, and  during that period of 10 days no party to the agreement has made a notification  to the mediator and the Board,  the Director shall prepare] a determination order  in respect of the dispute.

Where  one or more of the parties to a dispute request the Board to refer the dispute to the Tribunal, and the report  states that —

• there is no agreement between the parties that has resolved the dispute,
• the dispute is not resolved notwithstanding that, one, or more than one, of the matters concerning the dispute have been agreed between the parties, or
•  there is an agreement between the parties that has resolved the dispute but, within the period of 10 days following the completion of the mediation, a party to that agreement has made a notification to the mediator and the Board

the Board shall refer the dispute to the Tribunal.

Where—

• the report furnished to the Board under section 95(5) states that there is agreement between the parties and that the agreement resolves the dispute,
• a period of 10 days has elapsed from the date of the completion of the mediation, and
• during that period of 10 days no party to the agreement has made a notification under section 95(5A) to the mediator and the Board,

the Board shall prepare a determination order under section 121 in respect of the dispute.

Where one or more of the parties to a dispute request the Board to refer the dispute to the Tribunal, andthe report furnished to the Board states that—

• there is no agreement between the parties that has resolved the dispute,
• the dispute is not resolved notwithstanding that, one, or more than one, of the matters concerning the dispute have been agreed between the parties, or
• there is an agreement between the parties that has resolved the dispute but, within the period of 10 days following the completion of the mediation, a party to that agreement has made a notification to the mediator and the Board cancelling the agreement

the Board shall refer the dispute to the Tribunal.

Adjudication

The Board may refer the matter to adjudication. In this event, it is considered by an adjudicator from a panel.  He is to inquire fully into the relevant aspects of the dispute and be provided by each party with such information as is appropriate.The adjudicators may require the parties to furnish relevant documents and information.

It may allow a party to be represented.  The adjudicator determines the dispute by a decision or embodies it in an agreement reached by the parties as its decision.

The adjudicator may if he considers it would of practical benefit, assist the parties with a view to reaching a decision in the resolution of the matter.  This may include stating of provisional conclusion he has reached on issue.  The adjudicator must not express a provisional conclusion in relation to disputes of fact, unless they expressly request it nor until all documents and oral submissions have been considered.

If the parties have reached their own agreement which is to be adopted by the adjudicator, a 10 day period must be allowed in which the parties may reconsider their decision.  If the decision still stands, it cannot be appealed and becomes binding.  Within the period of 10 days, either party may renounce the agreement.

Once the determination is made, the adjudicator submits a report to the Board setting out a statement of agreed facts, a summary of the matters agreed whether or not they go in whole or part in resolving the dispute, the terms of the adjudicator’s determination and reasons for it and a summary of the conduct of the adjudication.

A copy of the report by the adjudicator is served on each party.  The determination becomes final, unless an appeal is made to the Tenancy Tribunal within 21 days.

Tenancy Tribunal

A dispute may be referred to the Tenancy Tribunal, where the Board has formed the view that it is not appropriate matter for mediation or adjudication, mediation has failed to resolve the issues or an appeal is made against a decision of the adjudicator.The Tenancy Tribunal has three members.  It acts by majority.

Tribunal gives notice to the parties at the time of hearing and outlines the matters to be dealt with and the procedures to apply.  Each party may be represented and may call witnesses.  The Tribunal may have regard to the adjudicator’s report.  Evidence is on oath.

The Tribunal has powers to compel the attendance of witnesses.  They may be cross-examined.  Witnesses have the same immunities and privileges as a witness before the superior courts.  Orders in relation to witness expenses may be made.

A person who is compelled to attend as a  witness, to whom witness expense have been tendered may be treated as if he is guilty of contempt of court if he fails to attend when summonsed or refuses or fails to take the oath, produce documents etc.

Proceedings

The Board may make rules with the consent of the Minister for the Environment in relation to procedures to be adopted by the mediators, adjudicators and the Tribunal.

A title may not be challenged in a dispute.  The dwelling house concerned may be inspected even if occupied by a third party.  At least 24 hours’ notice must be given in that case to the occupier.  It is an offense to obstruct a lawful authorised inspection.

Proceedings before the Tribunal are in public.  In certain cases the identity of parties may be ordered not to be disclosed.

Remedies

A declaration by an adjudicator or the Tribunal may be made for the purpose of giving relief.  Orders may include

a direction hat rent or other charges be paid;

• declaring whether rent complies with the market rent requireement
• a direction as to return or repayment of deposit;
• declaration regarding validity of notice to terminate;
• direction that a dwelling be vacated by a particular date;
•  direction that a lease or tenancy is void;
• declaration in relation to a right to return to a dwelling.
• direction that cost or damages be paid (Legal and professional or technical witness cost are not generally available without an order of the Tribunal specifically).
• directions in relation to interim relief.

If the special circumstances require, a direction that the whole or part of the costs or expenses incurred by the adjudicator or tribunal should be paid by one or more of the parties.

An adjudicator or the Tribunal, in dealing with a dispute, may give such directions as he or she or it thinks appropriate for the purpose of providing relief of an interim nature to one, or more than one as appropriate, of the parties.

Such a direction shall indicate that the relief it provides for may not necessarily be the relief provided for by the final determination made in the matter.

As soon as such a direction is given, the adjudicator or the Tribunal shall reduce it to writing and forward it immediately to the Board.

Awards

The maximum award that can be made is €20,000 for damages only.

In relation to arrears of rent and other charges, the maximum is €20,000 or an amount equal to twice the annual rent whichever is higher, subject to an overall maximum of €60,000.

A determination regarding the amount of rent to be paid may contain a requirement that the amount be decreased by debts owing for improvements or sums due in compensation.  The sum may be increased by costs incurred by the landlord in pursuit of arrears and damages and costs in undertaking repairs which are the tenant’s responsibility. The method of calculation is to be indicated.

Where the Tribunal or adjudicator determines that a person is entitled to resume possession of a dwelling but  this would cause hardship or injustice to another person in possession (who so not a party), he may instead of  directing possession make a determination that the applicant was wrongfully deprived of  possession, together with direction that the landlord pay an amount of damages.

The person in possession may make submissions.  In deciding whether a direction of possession would cause hardship or injustice to the person in possession, the Tribunal is to have regard to the length of time the person has been there, any involvement he or she may have had with the first party becoming dispossessed and any knowledge regarding the existence of the dispute.

Courts

Proceedings may not be brought before the courts unless the amount of damages is more than €20,000 or arrears of rent or charges exceed either €60,000 of twice the rent if this is a greater sum than €60,000.

In cases where parties would be entitled to interim or interlocutory relief, the Board on being requested by a party may apply to the Circuit Court for such relief.  It will have regard to the strengths and weaknesses of the case as they appear and the amounts of damages potentially payable on foot of an undertaking to pay damages.

If the party requesting the Board to seek to relief undertakes to meet the damages, the RTB is not to be dissuaded from making the application if that person has manifestly has the means to comply with the undertaking.

Determination Order

A determination order may arise from agreement, an adjudication or an order of the Tribunal.  The determination order is issued to the parties.  The Board may amend the order to remove ambiguities or clarify the terms if it considers it to be for the benefit of the parties.

If the Board as of the view that the determination is not consistent with previous determinations of disputes by the tribunal, it make give members of the Tribunal the opportunity to make submissions and after consulting the parties may, either if the parties consent or if the Board having considered the representations deem it appropriate, direct the Tribunal to rehear the matter and make a fresh determination.  A dispute is deemed similar to another if the issues involved in each are the same and the facts that give rise to each of them as appearing from any record are the same in all material respects.

A determination order may be appealed within 21 days on a point of law to the High Court.  The decision of the High Court is final and conclusive.  The decision does not deal with the merits.

Enforcement

A determination order may be enforced in the Circuit Court for the area in which the dwelling is situated.  Either the party intended to benefit or the RTB may take proceedings against the party alleged in default.  If the party seeking to enforce is not the RTB, he must notify the Board which is entitled to appear.

Once it is satisfied that the party is in default, the Circuit Court must direct compliance with the terms of the determination order unless it determines

• there was an absence of procedural fairness,
• material considerations were not taken into account,
• there is a manifest error in relation to legal issues or
• the determination is manifestly erroneous.

If the Circuit Court is satisfied by credible testimony that the respondent is unable to meet the costs of the applicant, in  should his challenge to the fairness of the proceedings fail, the court may require security for costs.

If the determination order requires that the property be vacated on the foot of a valid termination for non-payment of rent, the Circuit Court may require the respondent to pay and lodge  all arrears and amounts for subsequent further occupation.

If the court is atisfied that there are good and substantial reasons why a party failed to appear at a hearing, it may cancel the determination and direct it be reheard.  It may direct security for costs and payment of arrears and for ongoing occupation.

The Board or Circuit Court may impose conditions similar to those imposed by the High Court in setting aside a judgment in the absence of a party.  It is an offence to fail to comply with the determination order.  He may not be sentenced to imprisonment, if he shows that his failure to comply is due to lack of financial capacity.