Transcript Overview of landlord – tenant law

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OVERVIEW OF
LANDLORD – TENANT
LAW
Kevin Baneham, BL
Thursday, 23rd August 2012
This presentation is for legal information purposes only and should
not be relied upon as legal advice for any particular instance.
© Kevin Baneham, BL
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Contents
• Legislative overview;
• Illegal eviction and exclusive possession;
• Minimum standards and the condition of the dwelling;
• Deposits;
• Rent supplement.
The contents are ordered according to how much
legislative intervention there has been and how much
statutory protection is offered. There has been
considerable intervention in the early topics to be dealt
with, but much less in later areas.
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Legislative overview
• Landlord – tenant law governed by common law and a
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number of longstanding pieces of legislation (Deasy’s Act
of 1860 and the Conveyancing Act 1881);
20th century interventions to restrict rent, leading to the
Rent Restrictions Act, 1960 and 1967;
Provisions for security of tenure and renewal of tenancies
(Landlord and Tenant Amendment Act 1980);
Establishment of Rent Tribunals (1982);
Housing (Miscellaneous Provisions) Act 1992 –
standards, rent books and abolition of distress;
Residential Tenancies Act, 2004 and the 2012 Bill.
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Residential Tenancies Amendment Bill
(no. 2) 2012
• Bill published on the 19th July 2012;
• Expands scope of the Residential Tenancies Act to the
voluntary housing sector;
• Exception where any member of the household is in
receipt of ‘care support services’, defined as medical care,
personal care funded under section 39 of the Health Act,
2004;
• Different exception than that provided in the Housing
Standards Regulations;
• It is the tenancy between the voluntary housing body and
the household that is subject to the Act, not the tenancy
between the voluntary housing body and the State.
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I - Illegal eviction
• A landlord can never forcibly remove a tenant or compel
them to leave a dwelling;
• This means no changing of the locks, removing the front
door of the dwelling or turning off utilities;
• Section 58 of the Residential Tenancies Act removed
traditional common law remedies for a landlord to reclaim
possession.
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What can a landlord do?
• Serve a valid notice of termination;
• If a tenant overholds, that is continues to reside in the
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dwelling beyond the termination date, the landlord should
avail of the legal process to reclaim possession of the
dwelling;
The landlord must refer a case for overholding to the
PRTB and ask for priority status;
Possession is obtained via a Court order based on the
PRTB’s Determination Order, executed by the Sheriff;
No role for Gardaí unless accompanying the Sheriff;
New proposed ground for fast-tracking Tribunals on
grounds of economic hardship.
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What can a tenant do?
• If a landlord demands that a tenant leave, they need to
clearly inform the landlord that they (the tenant) have a
legal entitlement to stay;
• If the tenant is being physically evicted, they should
attempt to discretely record the eviction;
• Safeguard health and possessions;
• Seek legal remedies (injunction, PRTB) and when lodging
the application to the PRTB, ask for priority status.
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Exclusive possession
• The essential component of a tenancy is that the tenant
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has exclusive possession of the dwelling;
Landlord can only gain access to the dwelling with the
permission of the tenant and by arrangement;
There is an obligation on tenants to facilitate inspections
by the landlord but this can only happen at a date and
time agreed to by the tenant;
If the landlord enters without permission, the tenant
should inform the landlord that this is illegal and follow up
with an email or letter;
If there is persistent breaches, the matter can be referred
to the PRTB.
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Security of tenure
• In the past, the only way a tenant could acquire security of
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tenure was through a fixed term lease;
Now, tenants acquire Part 4 security of tenure when they
live in a dwelling for more than six months;
When a tenant has Part 4 security tenure, the landlord
can only terminate the tenancy on certain grounds;
The grounds include the landlord is moving back in;
selling the property or substantially refurbishing it;
Part 4 is a minimum level of security of tenure so tenants
can also benefit from a lease.
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Security of tenure and voluntary housing
• Part 4 applies to those voluntary housing tenancies which
will come under Residential Tenancies Act;
• However, voluntary housing tenancies will not be able to
sub-let or assign the tenancy;
• New ground to terminate Part 4 tenancies (available only
to voluntary housing bodies) where the dwelling will be
returned to the public authority within 6 months of the
service of the notice of termination;
• Restriction on right to succeed on death of a Part 4 tenant
so that the person succeeding must be assessed as in
need of housing.
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II - Minimum standards and the condition
of the dwelling
• An area where there has been significant recent increase
in the level of protection;
• Housing (Standard for Rented Houses) Regulations of
2008 and 2009, overseen by the local authorities and
applies to all private rented dwellings let and available to
let;
• Most of the minimum standards apply also to voluntary
housing;
• Residential Tenancies Act imposes an obligation on
landlords to maintain fixtures and fittings.
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Standard of repair
• From the Minimum Standards Regulations, 2009:
“‘a proper state of structural repair’ means sound,
internally and externally, with roof, roofing tiles
and slates, windows, floors, ceilings, walls, stairs,
doors, skirting boards, fascia, tiles on any floor,
ceiling and wall, gutters, down pipes, fittings,
furnishings, gardens and common areas
maintained in good condition and repair and not
defective due to dampness or otherwise.”
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The old standard of repair
• The 2009 standard of repair replaced one under the 1993
Regulations;
• The old definition was:
"a proper state of structural repair" means essentially
sound, with roof, floors, ceilings, walls and stairs in good
repair and not subject to serious dampness or liable to
collapse because they are rotted or otherwise defective.”
• No mention of fittings or furnishings;
• Qualifying terms used in the 1993 definition, for example
“essentially” or “serious.”
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Other improvements since 2009
• Improved ventilation, lighting and for the first time, a direct
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reference to fire safety;
Requirement that there be central heating and that it is
under the control of the tenant;
Private rented dwellings will be required to have 4-ring
hob, fridge-freezer & access to a washing machine;
From 1st February 2013, the Regulations will spell the end
to the bed-sit by requiring that all dwellings have their own
sanitary facilities;
All properties available to let must have a BER rating;
Also, consider Building Regulations F which deals with
adequate ventilation.
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Minimum standards
and voluntary housing
• Minimum Standards Regulations provides that the revised
standards apply to housing provided by the HSE and
voluntary housing bodies except where the
accommodation has sanitary, cooking or dining facilities
provided for communal use within the building containing
the house;
• Wider definition than that of the amendment Bill;
• Article 8 of the Minimum Standard Regulations does not
apply to voluntary housing, i.e. the obligation to provide
specific food preparation, storage and laundry facilities.
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How to complain?
• Contact the relevant local authority;
• Obtain a copy of the report prepared by the local authority
inspector;
• See if the Council will issue an Improvement Notice;
• Refer the matter to the Private Residential Tenancies
Board.
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Mixed performance of local authorities
• Despite a dedicated source of funding, some local
authorities have performed poorly in this area.
• Some comparisons (Source environ.ie for 2010):
Local
authority
Dwellings
inspected
No. of
inspections
Substandard
dwellings
No. of
notices
issued
Legal action
initiated
National
18,698
21,614
4,706
829
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Dublin
1,312
2,310
525
397
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Fingal
308
370
113
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0
South Dublin
917
1,150
233
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0
Kilkenny
54
85
0
0
0
Wicklow
1,362
1,384
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0
0
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Availing of the Residential Tenancies Act
• The Residential Tenancies Act provides that a landlord
shall maintain the dwelling as it was at the
commencement of the tenancy;
• The Act also provides that it must meet Minimum
Standards;
• Take photographs of what’s wrong as evidence;
• Ask the Council to inspect the dwelling and get a copy of
their report, using the Freedom of Information Act, if
necessary.
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What if my landlord refuses to repair?
• The Residential Tenancies Act imposes an obligation on a
landlord to reimburse a tenant for carrying reasonable and
vouched for repairs;
• There are conditions:
(1)That the landlord has failed or refused to carry out the
repair;
(2)The postponement of the repair would either pose a
significant risk to the health and safety of the tenants or a
significant reduction in the quality of the tenant’s living
environment.
• Applies most readily to repairs to central heating, washing
machines or the most-used items of furniture.
Deducting the repair from the rent
• Once the tenant has met the conditions in the previous
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slide, the landlord has a legal obligation to compensate
the tenant for this cost;
It is likely that a landlord who refuses to repair will also
neglect to compensate;
The tenant should then write to the landlord, saying that
the repair has been carried out and should refer to their
previous correspondence;
Propose that the cost be deducted from the next rent due
or offer the alternative that the landlord compensate the
tenant directly;
If the tenant hears nothing back, they deduct the repair
cost from the rent.
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III - Deposits
• No definition in the Residential Tenancies Act of what a
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deposit is;
A deposit is a sum of money held by the landlord as
security to compensate for any breaches by the tenant;
Tenants can be asked to pay a holding deposit before
moving in, which then goes towards the deposit;
Deposit retention is the number one source of disputes for
tenants;
The non-return of a deposit can stem from anything at the
start, in the middle or at the end of a tenancy.
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At the start
• The condition of the dwelling: It is important that
both landlords and tenants have an accurate
record of the contents and condition of a dwelling
at the start of the tenancy. Take photographs!
• If an improvement is promised to the dwelling
prior to the start of a tenancy, get a record of this
undertaking;
• The tenancy starts when the tenant receives the
key and moves in;
• Lease conditions: Be clear whether it is a fixed
term lease and who pays for what.
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In the middle
• Think ahead – if an issue arises during the course of the
tenancy, will you be able to show that it is normal wear
and tear?
• Record of rent payments, through a Rent Book or receipts
provided by the landlord;
• Part 4 security of tenure – do tenants need to sign more
than one lease?
• Tenants often find that they have to vacate a tenancy but
have bound themselves to another fixed term lease
unnecessarily.
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At the end
• Serve notice of termination in writing, giving the correct
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amount of notice;
Download the notice from www.prtb.ie;
The day the notice starts is the day after it is served;
Make arrangements for the end of the tenancy, for
example the handover of the keys and return of the
deposit;
A tenant does not need to serve a notice if they are
vacating the dwelling at the end of a fixed term lease,
however my advice is to serve notice anyway;
If a dispute arises over notice, the tenant should
investigate when the dwelling was re-let.
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Notice periods – termination by landlord
Duration of tenancy
Notice period
Less than 6 months
28 days
6 or more months but less than 1 year
35 days
1 year or more but less than 2 years
42 days
2 year or more but less than 3 years
56 days
3 year or more but less than 4 years
84 days
4 or more years
112 days
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Notice periods – termination by tenant
Duration of tenancy
Notice period
Less than 6 months
28 days
6 or more months but less than 1 year
35 days
1 year or more but less than 2 years
42 days
2 or more years
56 days
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Terminating during a fixed term lease
• If the tenant is terminating a tenancy during the course of
a fixed term lease, they should do so in accordance with
the Residential Tenancies Act;
• If the tenant is terminating the tenancy because of a
breach by the landlord, the tenant must notify the landlord
in writing of the breach and give him or her the
opportunity to rectify;
• If the landlord does not remedy the breach, the tenant
should serve a 28-day (or 7-day) notice;
• A tenant can also end a tenancy during a fixed term if the
tenant offers to replace themselves and the landlord says
no. The tenant must then serve a valid notice.
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The condition of the dwelling at the end of
a tenancy
• The law allows “normal wear and tear”, taking account of
the duration of the tenancy and the nature of the
occupation;
• A tenancy lasting a number of years is entitled to more
wear and tear than a short one;
• A house-share of adults or a household with children are
both afforded higher degrees of wear and tear;
• This issue comes down to evidence of the condition of the
dwelling at the start of a tenancy and at its end.
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Anti-social behaviour
• Under the Residential Tenancies Act, a landlord has legal
obligations to neighbours to enforce the tenancy
obligations of the tenant;
• A tenant has a legal obligation not to behave anti-socially,
which includes persistent behaviour which prevents or
interferes with the peaceful occupation of others;
• If a tenant behaves anti-socially, the neighbours can take
a PRTB case against the landlord for failing to enforce the
tenancy obligations of the tenant;
• The neighbours must first ask the landlord to deal with the
problem and if nothing is done, they can refer a case to
the PRTB.
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Keeping the ‘mates’ in housemates
• Much of the Irish rented sector is made up of adults who
share accommodation and they are often strangers to
each other at the start of the tenancy;
• This form of accommodation, in all its varied forms, comes
within the scope of the Residential Tenancies Act;
• In some arrangements, tenants pay rent individually, in
others, one single payment is made;
• Ultimately, a landlord is obliged to enforce the tenancy
obligations of each tenant, so the anti-social behaviour of
one tenant against another should be reported to the
landlord.
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IV – Rent supplement
• Rent supplement is a social welfare payment to help
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tenants meet the cost of rented accommodation;
The mantra of the Department of Social Protection is that
it is an income support for the tenant and that their
relationship is only with the tenant;
The payment, however, can be paid directly to the
landlord;
The tenant must top up the rent supplement with their
contribution;
There are maximum rent levels over which rent
supplement will not be awarded, even if the tenant is
willing to top up more.
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Hot political issue
• The maximum levels of rent supplement have been
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reduced across the board, causing problems for tenants
to find accommodation within the rent cap;
Tenants expected to negotiate down their rents;
Section 14 of the Social Welfare and Pensions Act, 2012
gives Department officials the power to demand
information from the landlord and it is an offence for the
landlord to provide false or misleading information;
“Rent supplement not accepted” is not illegal;
Household charges and the NPPR cannot be passed onto
tenants.
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Rent supplement and the law
• Community Welfare Officers have/had the practice of
cutting off rent supplement as soon as the landlord served
a notice of termination, even though the tenant had
disputed the validity of the notice. This forced the tenant
into rent arrears. This must be challenged with the CWO;
• The Department provides a receipt for all rent supplement
paid and the tenant should keep these;
• Lettings come within the scope of equality legislation, so a
refusal to rent to someone on one of the nine grounds can
be referred to the Equality Tribunal.
• It is unlikely that refusing to rent to someone because
they are entitled to rent supplement could form the basis
of a claim to the Tribunal.
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The end
Thanks very much.
Kevin Baneham, BL