Residential tenancies briefing

The Residential Tenancies Act, 2004 which had its genesis in the recommendations of The Commission on the Private Rented Residential Sector published in July 2000, is now on the Statute Book.   While the Act is in force, various parts of it are being introduced on a phased basis - portions of the Act dealing with security of tenure, registration of tenancies and the setting up of the Private Residential Tenancies Board came into operation on 1 September 2004 and it is intended that the remainder of the Act will come into operation by the end of 2004.  

The Act runs to over 200 sections, a number of which are lengthy and complex. This memo provides only a broad outline of the main provisions of the Act.   We are available to advise individual clients on the specific provisions contained in the Act in relation to various aspects of residential tenancies.  

Scope of the Act

The Act applies to both written and oral tenancies and only applies to residential property. The following are specifically excluded:

  1. Business lettings
  2. Formerly rent controlled tenancies
  3. Social housing
  4. Long occupation equity tenancies
  5. Holiday lettings
  6. Owner/occupier property

In relation to owner/occupier property it should be noted that while the Act does not apply to a tenancy in a dwelling in which the landlord resides, it does apply where the landlord’s spouse, child or parent resides provided the tenancy agreement is in writing.   

Landlord’s obligations

Part 2 of the Act deals with landlords’ and tenants’ obligations.   The parties cannot contract out of the obligations set out in the Act although there is nothing to stop a tenancy agreement providing for additional or more favourable terms being agreed upon.   The Act specifically gives third parties a right of redress where a landlord fails to enforce a tenant’s obligations, for example not to create a nuisance to neighbours by playing loud music at unsocial hours.    In such circumstances the neighbour has a right to make a complaint against the landlord to the Private Residential Tenancies Board.  

The main facets of a landlord’s obligations under the Act are as follows:

  1. To allow the tenant peaceful and exclusive occupation
  2. To carry out landlord’s repairs
  3. To insure the property
  4. To provide a point of contact
  5. To refund the deposit (unless the tenant is in default)
  6. To reimburse the tenant for Landlord’s repairs carried out by the tenant
  7. To enforce the tenant’s obligations
  8. To refrain from penalising a tenant who has, for example, made a complaint against the Landlord or has given evidence to the Board against the landlord.

Tenant’s obligations

The tenant’s obligations under the Act include the following:

  1. To pay the rent and other charges
  2. To refrain from damaging the property
  3. To notify the landlord of repair requirements
  4. To allow the landlord access for repair or inspections
  5. To advise the landlord of the identity of occupants
  6. Not to engage in or allow anti-social behaviour
  7. Not to invalidate the landlord’s insurance
  8. Not to alter, improve, assign, sub-let or change    the use of the property without the landlord’s written consent.

 

Rent

Part 3 of the Act deals with rents and rent reviews. The Act envisages the principle of a market rent being payable under a tenancy agreement and gives either party the right to refer the question of rent to the Board for assessment.   Rent may be reviewed only once a year unless there has been a substantial change in the nature of the accommodation.   Disputes in relation to rent reviews may be referred to the Private Residential Tenancy Board.  Rents can be reviewed downwards as well as upwards.

Security of tenure

Security of tenure is dealt with in Part 4.   The Act provides for four year tenancy cycles, giving a tenant a measure of security for a period up to four years.   During the first six months of each four year cycle a landlord can terminate the tenancy without reason.   However, for the remainder of the term the rights of the landlord (but not of the tenant) to terminate the tenancy are restricted.

The following are the main grounds for termination of a tenancy by a Landlord:

  1. Expiry of the four year cycle
  2. Failure by the tenant to comply with obligations
  3. The dwelling has ceased to be suitable for the tenant’s needs
  4. The landlord intends to sell the dwelling within three months of termination
  5. The landlord requires the dwelling for his/her occupation or occupation by a family member
  6. The landlord intends to refurnish or renovate the dwelling
  7. The landlord intends to change the use of the dwelling.

On assignment of a tenancy, a new four year cycle commences while on sub-letting the original cycle date continues to apply.   Where there are multiple tenants, the cycle commences from when the first tenant commenced his/her tenancy.     Licensees may apply to become tenants of the property and the landlord cannot unreasonably withhold consent to this.

Termination of tenancies

Part 5 sets out the length of Notices of Termination required.   The notice periods vary between 28 days and 112 days and there are shorter periods where the recipient of the Notice of Termination is in default or where the parties agree to such a shorter period.   It should, however, be noted that such agreement for a shorter period has to be made at the time of termination and not, for instance, when the tenancy is entered into.   

Dispute resolution

Part 6 deals with dispute resolution.   Either party may initiate the procedures for disputes in accordance with the terms of the Act.    The intention of the Act is to provide a relatively quick, economic and straightforward means under which disputes between the landlord and the tenant can be aired and resolved without recourse to lawyers or to the courts.   If both sides agree, a mediator can seek to resolve the dispute.    In the absence of agreement or where either of the parties rejects the mediators’ recommendations, then an adjudicator can be appointed to investigate and come up with recommendations.    Proceedings before a mediator or an adjudicator are held in private.    If the adjudicator’s recommendations are not accepted the dispute is referred to a Tenancy Tribunal made up of three individuals.   The Tribunal sits in public.   There is a limit to the amount of damages that can be awarded (€20,000) or twice the annual rent (up to a maximum of €60,000).    An Appeal from a Tribunal decision may be taken to the High Court on a point of law only.   The Board can apply to the Circuit Court for enforcement of decisions made by the Tribunal and it also has power to apply to the court in cases of emergency, for example dangerous buildings.   

Registration of tenancies

Registration of tenancies is covered in Part 7 of the Act.    The Private Residential Tenancies Register (maintained by the Private Residential Tenancies Board) replaces the existing registration regulations which were enforced through each local authority.   Landlords have a duty to register a residential tenancy within one month of its creation.   Existing residential tenancies should be registered within three months of the Act coming into force.    Where there is a review of rent during the term of a tenancy the Register should be amended to reflect this.   The current fee for registration of a tenancy is €70 up to a maximum of €300 for composite lettings in the one property.   Double the fee is payable on late registration.   The Board has the power to exchange information on the Register with local authorities, the Department of Social and Family Affairs and the Revenue Commissioners.   The Act provides sanctions on Landlords for failure to register comprising a fine up to €3,000, six months imprisonment or both.   In order for a landlord to avail of dispute resolutions the Tenancy must be registered.

Private Residential Tenancies Board

Part 8 of the Act deals with the Private Residential Tenancies Board and sets out its main functions as follows:

  1. Dispute resolution
  2. Registration of residential tenancies
  3. Advice on policy
  4. Publication of guidelines for good practice
  5. Research and information on the residential sector.

Other provisions

Part 9 deals with miscellaneous provisions and confirms that unfair provisions in a tenancy agreement are void.   It also states that sub-tenants should be informed of the terms of the tenancy agreement and puts certain duties on management companies of apartment blocks where a tenant has made a complaint.  Part 9 also deals with Excluding Orders and the rights of sub-tenants.   

If you are already, or intend becoming, a party to a residential tenancy we strongly recommend that you obtain detailed legal advice on the implications and terms of the Act as they affect you.

You may contact a member of our Conveyancing and Private Client Department by telephone or by e-mail:

Terence Moran               tmoran@hayes-solicitors.ie

Peter Harrison               pharrison@hayes-solicitors.ie

Jackie Buckley              jbuckley@hayes-solicitors.ie

Gráinne Macdougald               gmacdougald@hayes-solicitors.ie

Rachel Rodgers              rrodgers@hayes-solicitors.ie

Joe O'Malley                         jomalley@hayes-solicitors.ie