Reform and Residential Property Act
Prior to 2004, a dispute between landlord and tenant was heard by the small claims court, the District Court or the Circuit Court. After 2004 Act, all claims must brought before the Residential Tenancies Board (PRTB). The Board may appoint an adjudicator or mediator to resolve the dispute amicably. The Board may make legally binding orders but it is still necessary to go to court to enforce the order. The result is that many simple claims for possession for non-payment of rent or breach of a tenant’s covenant must go through a potentially long and multi stage process in order to force the matter to conclusion.
The 2004 Act sets out the rights of the landlord and tenant. The terms of a letting cannot be changed by any attempt to specify otherwise. Any term and condition in a letting agreement inconsistent with the Act is void, unless it improves the tenant’s protections. No matter what is in the letting agreement, the minimum tenant protections will apply.
The 2004 Act significantly altered the balance of rights and obligations between landlord and tenant, in favour of the tenant. In this, it largely followed the modern international position.
Residential Tenancies Board
The Residential Tenancies Act provides for a dispute resolution mechanism in place of the court. A range of disputes wider than merely landlord and tenant disputes may be referred to the RTB. The RTB determines whether they should be heard by a mediator, if the parties choose, an adjudicator or by a three person Tenancy Tribunal. A dispute includes a disagreement. This includes issues regarding compliance with the landlord and tenants obligations.
The Residential Tenancies Board resolves disputes in the private rented dwellings sector. This includes disputes relating to the level of rent, non-payment of rent and termination of a tenancy on the basis of breach. It also hears disputes as to the existence of tenancies and the rights and obligation of the landlord and tenant.
There are two steps in the process. The first is a mediation or adjudication, which is confidential. If this does not resolve the matter in dispute, it proceeds to a second stage which is a public hearing by the Tenancy Tribunal.
A dispute regarding termination must be referred within 28 days. Fees are payable to the Board in relation to the reference. Actions (such as a rent review) cannot take effect until the dispute (e.g. regarding the rent) has been determined by the Board or the parties agree.
The Board and the Tribunal acts in a less formal manner than a court. The Board is entitled to communicate with the parties to ensure the parties fully understand the issues so that the dispute is not due to a misunderstanding of the legal position.
Mediation and Adjudication
The Board first offers mediation services to the parties to the dispute, unless it considers the dispute should go straight to the Tenancy Tribunal. Mediation is a resolution method which seeks to find agreement. If an agreed solution is found with the mediator’s assistance, he may make a report containing an agreement which can become binding unless objected to.
The Board can refer to an adjudicator as an alternative to mediation. An adjudicator determines disputes by reaching his own decision or by reflecting an agreement reached between landlord and tenant whether on their own initiative or on foot of the adjudicator’s provisional conclusions. If an adjudicator’s decision or the agreement is reflected in the adjudicator’s opinion either party has a period of 21 days to object, in which event it does not become a binding. A mediator or adjudicator can inspect the property.
The Tenancy Tribunal hears disputes referred directly to it or which come as a result of failed adjudication or a mediation. The parties can attend, present evidence and be represented at the Tribunal. The Tribunal has powers to ask question under oath and has powers to punish refusals to answer and cooperate in the same way as contempt of court. It is an offence to fail to comply with Tribunal’s requirements.
An adjudicator or the Tribunal may make determinations and give directions for the purpose of providing relief. It may award costs and damages up to €20,000. The Board can direct payment of a specified rent, direct a tenant to vacate a property, set aside a lease or declare a right to continue in occupation. The Tribunal may also increase awards to reflect the costs of pursuing rent arrears or damages.
Each mediation agreement, adjudication determination or Tribunal decision is to be recorded in writing. There are only limited grounds of appeal to court, which are based on the Tribunal making a mistake of law.
Where an order is not complied with by the party, the Board or the affected person may apply to court to enforce the Tenancy Tribunal’s determination order. The Circuit Court is obliged to make orders to require compliance unless it is shown that the process was procedurally unfair, a material consideration was ignored, an erroneous decision on a legal issue was made or the determination is manifestly wrong. It is an offence not to comply with the terms of an order. A person may not be imprisoned where is non-compliance due to limited financial means.
Types of Dispute
The Board’s jurisdiction covers all matters with regard to the legal relations between the parties that either requires to be determined. It covers claims for arrears of unpaid rent which the tenant has failed to content that he or she is not obliged to pay.
The above includes disputes as to whether a tenancy has been validly terminated and disputes as to payment of rent. This is so even though there may be no obvious or remotely applicable defence to the non-payment of rent.
Dispute covered also includes
- a number of types of complaint including where the tenant has been unjustly drived off, possession by the landlord giving false reasons or incorrect reasons for termination;
- complaints by a licencee of a multiple tenant or tenants lawfully in occupation where the landlord has unreasonably refused to an application to grant the licencee a tenancy;
- persons who might be potentially affected, who has been directly and adversely affected by the failure of the landlord to enforce his other tenants’ obligations under their tenancy;
- a claim by a landlord for loss and damage arising from the fact that a tenant who has been in possession under a fixed term tenancy of at least six months failed to give the required notice his or her intention to remain in possession;
- a claims by a subtenant that he or she has been unjustly deprived of possession by a reason of unlawful tenancy termination by the head tenant on the basis of alleged or false or incorrect requirements that it is required for a member of the tenant’s family.
References to parties to a dispute includes personal representative.
Reference of Dispute
Either or both parties to an existing or terminated tenancy of a dwelling may together or individually refer a matter to the Board for resolution, where there is a dispute between them. The landlord may refer a dispute to the Board relating to the dwelling between the landlord and another not being a tenant but through whom the other person claims any right or entitlement.
A person who could be potentially affected, may refer to the Board a complaint, where he or she has been directly and indirectly adversely affected by the landlord’s failure to enforce the tenancy obligation of a tenant. He must first take all reasonable steps to try to resolve the matter short of threatening or instituting proceedings.
The Board can advise prospective claimant of the name and address of the landlord or the landlord’s agent if it takes the view that the party concerned may make a complaint.
A complaint made may be withdrawn by notice in writing. However, the parties to the dispute will be contacted and if that party objects to withdrawal, the adjudicator or Board may require the withdrawing party to pay costs and expenses as it determines. This does not include legal and professional costs, unless the Board or the body with the Board’s consent is of the opinion, there are exceptional circumstances, which so warrant.
Non-Exhaustive Dispute Matters
The legislation sets out a non-exhaustive list of matters which may be the subject of complaints referred to the Board. These include
- amount of rent and timing of rent reviews;
- retention and refund of deposits;
- alleged failures on either the part of the landlord or tenant to comply with the obligations in the lease, tenancy agreement or by statute.
- disputes regarding termination of the tenancy, including in particular that the termination notice was not validly given, it does not comply with the requisite procedures or that the ground was invalid, that the ground which claimed did not in fact apply, that the tenancy has been terminated despite absence of notice by the tenant in a case where the tenant has allegedly vacated.
- disputes include alleged failures by the tenant or subtenant to yield possession on failure to comply with a valid notice of termination.
- claims for recovery of costs and damages by a landlord of tenant for breach of the tenancy agreement or statutory obligations.
- claims by the landlord for arrears of rents or other charges.
- allegations by a tenant that he has been penalised for asserting his rights under the legislation.
- allegations by a tenant that the landlord has not offered a new tenancy following termination, where by reason of the anticipated occupation by the landlord or a family member or substantial refurbishment or change of use, the dwelling house become available for re-letting in circumstances unprovided.
- failure to comply with a termination order.
A subtenant may refer a dispute to the Board regarding termination of the head tenancy even if the head tenant does not do so. The subtenant is entitled to put in issue any matter relating to the notice of termination even if the head tenant fails to do so or agrees not to refer the dispute.
If the landlord serves a notice of intention to terminate, subject to the sub-tenancy and requires the tenant to terminate the sub-tenancy, a copy of the notice must be served on the subtenant. If the tenant intends to refer the dispute regarding termination to the Board;
- the tenant must a notice of termination of the sub-tenancy to the subtenant
- the notice must require the subtenant to inform the tenant within 10 days, whether there is an intention to refer the dispute to the Board;
If the tenant does not comply, the tenant may not refer the dispute regarding termination to the Board.
If the subtenant does not indicate his intention within 10 days, to refer a dispute to the Board, he or she may not do so.
If the subtenant does comply with notification requirement, the tenant may not refer a dispute to the Board until 15 days have elapsed from the date of service of notice of termination on the subtenant.
Other Tenants at Fault
A landlord of a dwelling owes to each person who could be potentially affected a duty to enforce the obligations of the tenant under the tenancy. A person who could be potentially affected” means a person who, it is reasonably foreseeable, would be directly and adversely affected by a failure to enforce an obligation of the tenant were such a failure to occur and includes any other tenant under the tenancy.
This does not confer on any person a right of action maintainable in proceedings before a court for breach of the duty created by it; the sole remedy for such a breach is by means of making a complaint to the Board. This does not affect any other duty of care, and the remedies available for its breach, that might exist.
A person affected may refer to the Board for resolution a complaint by him or her that the landlord of a dwelling has breached the above duty owed to him.The conditions are that referrer of the complaint is or was directly and adversely affected by the breach of duty alleged in the complaint, and before making the reference, the referrer, by communicating or attempting to communicate, with the relevant parties or former parties to the tenancy concerned, took all reasonable steps to resolve the matter.
This requirement does require the institution of legal proceedings or those parties being given to understand that such proceedings might be instituted.
For the purposes of facilitating communication for the above purposes the Board may furnish to a person who proposes to make a reference the name and address of the landlord or his or her authorised agent (or the former landlord or his or her authorised agent) of the dwelling concerned if it appears to the Board that the first-mentioned person is a person who may make a reference in relation to the matter concerned.
Anti-Social Behaviour Complaint
Where the breach of duty concerns a tenant’s anti-social behaviour , the complaint may, if the certain specified conditions are satisfied, be referred to the Board by, or on behalf of, a person affected. The conditions require
- the person affected is or was directly and adversely affected by the breach of duty alleged in the complaint.
- before making the reference, the person affected took all reasonable steps to resolve the matter by communicating or attempting to communicate with the landlord or former landlord, or
- by requesting the management company (or equivalent body below) to communicate with the landlord or former landlord on his or her behalf, and that that body communicated or attempted to communicate with the landlord or former landlord on is behalf.
There is no requirement to commence legal proceedings or to give to understand that such proceedings might be instituted.
A person affected as above may request
- an owners’ management company within the meaning of the Multi-Unit Developments Act
- a body corporate, or
- an unincorporated body of persons where one of the principal objects of the unincorporated body is to promote the safety and security of dwellings or the safety, security and the general well-being of persons residing in the vicinity of the dwelling that is the subject of the tenancy concerned. (including a body commonly known as a residents’ association or a neighbourhood watch group,)
to make the above communication or to refer the complaint to the Board.