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OVERVIEW OF LANDLORD – TENANT LAW Kevin Baneham, BL Thursday, 23 rd August 2012 This presentation is for legal information purposes only and should not.

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Presentation on theme: "OVERVIEW OF LANDLORD – TENANT LAW Kevin Baneham, BL Thursday, 23 rd August 2012 This presentation is for legal information purposes only and should not."— Presentation transcript:

1 OVERVIEW OF LANDLORD – TENANT LAW Kevin Baneham, BL Thursday, 23 rd 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 1

2 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. 2

3 Legislative overview Landlord – tenant law governed by common law and a number of longstanding pieces of legislation (Deasy’s Act of 1860 and the Conveyancing Act 1881); 20 th 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. 3

4 Residential Tenancies Amendment Bill (no. 2) 2012 Bill published on the 19 th 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. 4

5 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. 5

6 What can a landlord do? Serve a valid notice of termination; If a tenant overholds, that is continues to reside in the 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. 6

7 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. 7

8 Exclusive possession The essential component of a tenancy is that the tenant 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. 8

9 Security of tenure In the past, the only way a tenant could acquire security of 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. 9

10 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. 10

11 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. 11

12 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.” 12

13 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.” 13

14 Other improvements since 2009 Improved ventilation, lighting and for the first time, a direct 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 1 st 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. 14

15 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. 15

16 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. 16

17 Mixed performance of local authorities Despite a dedicated source of funding, some local authorities have performed poorly in this area. Some comparisons (Source for 2010): 17 Local authority Dwellings inspected No. of inspections Substandard dwellings No. of notices issued Legal action initiated National18,69821,6144,70682920 Dublin1,3122,31052539719 Fingal30837011300 South Dublin9171,15023300 Kilkenny5485000 Wicklow1,3621,3842800

18 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. 18

19 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. 19

20 Deducting the repair from the rent Once the tenant has met the conditions in the previous 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.

21 III - Deposits No definition in the Residential Tenancies Act of what a 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. 21

22 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. 22

23 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. 23

24 At the end Serve notice of termination in writing, giving the correct amount of notice; Download the notice from; 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. 24

25 Notice periods – termination by landlord Duration of tenancyNotice period Less than 6 months28 days 6 or more months but less than 1 year35 days 1 year or more but less than 2 years42 days 2 year or more but less than 3 years56 days 3 year or more but less than 4 years84 days 4 or more years112 days 25

26 Notice periods – termination by tenant Duration of tenancyNotice period Less than 6 months28 days 6 or more months but less than 1 year35 days 1 year or more but less than 2 years42 days 2 or more years56 days 26

27 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. 27

28 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. 28

29 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. 29

30 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. 30

31 IV – Rent supplement Rent supplement is a social welfare payment to help 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. 31

32 Hot political issue The maximum levels of rent supplement have been 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. 32

33 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. 33

34 The end Thanks very much. Kevin Baneham, BL 34

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