The Residential Tenancies and Valuation Act 2020
The Residential Tenancies and Valuation Act 2020 ("the Act") came into eect on the 1 August 2020 to replace the Emergency Measures in the Public Interest (COVID-19) Act 2020 ("Act of 2020"). The Act is to provide a new legal basis to oversee the moratorium on rent evictions and rent increases.
1. Tenants to Self-Declare
While the Act of 2020 saw a blanket ban on evictions and rental increases across the rental sector, the primary focus of the Act is to give rental protection to a category of tenants who are at risk of eviction from their rental properties by reason of failure to pay their rent. In order to get the protection of the Act the tenant must serve a declaration in writing to the Residential Tenancies Board ("RTB"), with a copy of the declaration to the Landlord. The tenant must declare that they are:
- A "relevant person"; and
- As a consequence, they face a significant risk of their tenancy being terminated due to the non-payment of rent.
The qualifying criteria in order to be deemed a "relevant person" includes:
- Being unable, or having been unable to work, due to contracting COVID-19 without entitlement to be paid;
- Being in receipt of, or entitlement to receive, the temporary wage subsidy or supplementary welfare allowance; or
- Being in receipt of any other payment out of public moneys provided to alleviate the financial hardship resulting from COVID-19.
The tenant can claim protection from eviction during the "emergency period". This is defined in the Act as being from the date of commencement of the Act up to 10 January 2021.
2. 28 Days Arrears Notice Period
The Act also aords a greater protection period for tenants who are at risk of eviction as a result of the non-payment of rent. The Act extends the arrears notice to a 28-day arrears notice; this was previously 14 days. The 28-day arrears notice must be served by the landlord on the tenant and the RTB. The RTB must then provide information to the tenant to allow them obtain advice from the Money Advice and Budgeting Service ("MABS"). If the tenant fails to pay the rent after the 28-day period, then the Landlord can serve a 28 day notice of termination which also must be served on both the tenant and the RTB. The RTB must furnish details to the tenant of their entitlements from the Department of Employment Aairs and Social Protection and inform them of their right to refer a dispute of the notice of termination to an adjudicator in the RTB with an appeal to the tribunal.
Regard must be had to the advice provided to the tenant in making any decision or determination. The Act extends the period of termination for a tenant who can seek the benefit of the Act to a period of 90 days after the service of the notice of termination or on the 11 January 2021 whichever is the later.
3. Prohibition on Rent Increases
Section 6 of the Act prohibits rent increases to 10 January 2021 unless it was an increase that came into eect prior to 27 March 2020. This section appears at odds with the intention of the Act which was to aord protection to tenants specifically aected by COVID-19. In the summary of the Bill from the Oireachtas it was noted that Section 6 was to apply to persons aected by that Part of the Act being "relevant persons". This was not carried over in the drafting of the legislation and instead of limiting the application of Section 6 to "relevant persons" being the persons defined in that Part of the Act, it reads instead that it applies to all tenants. It appears from the advices being oered by the RTB that they have adopted their own view that Section 6 of the Act only applies to "relevant persons". Clarification is certainly required on this point.
4. Commercial Tenancies Outside Parameters of the Act
The Act clears up the ambiguity brought about by Section 5(7) of the Emergency Act 2020 in that it left open the interpretation of the section that a prohibition on evictions falling outside of the Residential Tenancies Acts also extended to commercial tenancies. The Act removed this section and so it is no longer in eect, which clears up any ambiguity that there might have been.
5. Conclusion - Landlord to Shoulder the Burden of the Economic Impact Of COVID-19?
The Act attempts to strike a balance for both the tenant and landlord by setting out a list of qualifying criteria that the tenant must meet to avail of the Act. The previous blanket ban on evictions meant that Landlords were left in a situation where they could not evict a tenant even in circumstances where there was no economic impact seen by a tenant as a result of COVID-19. A false or misleading self-declaration by a tenant is a criminal oence and is an attempt to prevent abuse of the Act . There does need to be clarification on the blanket ban on rent increases which seems at odds of what the Act set out to do which was to provide protection to "relevant persons". While the Act provides a welcome reprieve to a tenant who has found themselves in diculty as a direct result of COVID-19 it does leave some landlords in a precarious position of having to shoulder the economic burden of the consequences of the Act especially in such circumstances where previous moratoriums that were oered by banks to mortgagors are now coming to an end.
The Residential Tenancies Act 2020
The Residential Tenancies Act 2020 ("the 2020 Act") is another piece of emergency legislation that has evolved as a result of COVID-19. It recognises the diculties that would be faced by tenants in finding alternative accommodation during the emergency periods and the consequences resulting from the spread of COVID-19. Signed into law on 24 October 2020, it is the latest update to the residential tenancy legislation.
A. Operation of the Protections
The 2020 Act is only operable during emergency periods which is defined in the 2020 Act as a period in which the Minister for Health imposes a restriction on travel outside a 5km radius of a person's place of residence for a period as specified in the relevant legislation. The relevant legislation is made under Section 31A of the Health Act 1947 which allows for travel restrictions on aected areas.
B. Revised Termination Dates
The 2020 Act is to provide a level of protection to tenants against eviction where a notice of termination was served prior to or during an emergency period. The 2020 Act allows for a "revised termination date" which is the date 10 days after:
- In instances where the notice of termination was served before the emergency period, the revised date will emergency period; or
- Where the notice of termination was served during the emergency period, the period of notice given in the notice of termination and the unexpired period of the emergency period.
Should there be any further subsequent emergency periods these periods are to be included in calculating the revised termination date.
In instances where a tenant has remained in occupation of a dwelling after the expiration of the required period of notice and before an emergency period commenced, whether that be with or without landlord consent, that tenant shall be entitled to remain in the dwelling until the revised termination date which in this scenario is 10 days after the expiration of the emergency period. The Tenant does not acquire any rights under Part 4 of the Residential Tenancies Act 2004 under this section.
C. Loss of Protection
Where a notice of termination was served for failure by tenant to comply with one of their obligations then the Tenant does not get protection of the 2020 Act. These include:
- Where a Tenant or other visitors behave in anti-social behaviour;
- Where the dwelling is used for a purpose other than as a dwelling without the owner's consent;
- Where acts of the tenant that would invalidate the insurance policy on the dwelling; and
- Where there is a threat which threatens the fabric of the dwelling.
The Act does not apply to a dwelling to which the provisions of the 2020 Act apply (as set out above) as these Tenants are separately protected under this legislation.
December 2020: An Assessment of the Provisions
A notable dierence between these instruments is their definition of the concept of the "Emergency Period". This indicates the improved understanding of the pandemic gained by the legislature between their commencement dates - August and October 2020 respectively. In the interim, specifically mid-September, the Irish government had published its "Living with Covid" plan.
The plan sets out five dierent "levels" to public life within the State, to be determined by the national prevalence of coronavirus at any given time. These "levels " impose a spectrum of increasingly severe restrictions on public life as they increase from one to five. As the most serious level, it is level five alone which imposes the "restriction on travel outside a 5km radius of a person's place of residence", which is the sole criterion that defines a "relevant period" within the 2020 Act.
This change in definition from the much more specific and definite window of 1st August 2020 to 10th January 2021 shows an understanding that protective measures may be needed beyond the 10th January 2021. This idea is echoed by the "Living with Covid" plan, which selfdescribes as a framework to support the nation's move from a short to medium- term approach to managing the pandemic. With Ireland having just left a six-week period of nationwide level five restrictions, it is unclear whether Ireland will enter into any further Emergency Period in 2021. It is clear however that if we do, adequate legislative protection will be available to Relevant Persons.
Previously published in Trends Real Estate - Issue 4, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.