Tenants Entitled to Stay at Home – New Government Emergency Measures for Rental Sector Enacted

On 27 March 2020 the President signed the Emergency Measures in the Public Interest (Covid-19) Act 2020 (the Act). The act was debated in both Houses of the Oireachtas and signed within the space of two days.

The Act is in response to the coronavirus pandemic and deals with a number of different areas of law to include the residential landlord and tenant sector.

The Act makes various temporary amendments to the Residential Tenancies Act 2004 – 2019. The aim of the act is to protect tenants during the Emergency Period.

While the Act imposes a number of restrictions on the steps that a landlord can take during the Emergency Period, it does not relieve a tenant of his / her obligations during this time. Rent remains payable unless some separate agreement is reached between the landlord and tenant. Likewise, a landlord’s obligations continue during the Emergency Period. However in assessing whether obligations, like the landlord’s obligation to repair, have been complied with, regard must be had to government guidelines, to include social distancing and non-essential services.

The “Emergency Period”

The provisions of the Act, as they relate to the residential rental sector, apply for an initial period of three months commencing on 27 March 2020. This period may be extended at the request of the Minister for Housing, Planning and Local Government having regard to the public interest.

Who is covered by the Act?

The provisions of the Act apply to all residential tenancies, to include student specific accommodation. The Act is, it seems, also intended to apply to other less formal arrangements such as rent-a-room and “Digs” even though such agreements would not ordinarily fall under the 2004 Act.

Late in in the course of the Dail debates, section 5(7)(a) was inserted into the bill by the opposition. That section provides that “Notwithstanding any of the provisions in this section, all proposed evictions in all tenancies in the State, including those not covered by the Act of 2004, are prohibited during the operation of the Emergency Measures in the Public Interest (Covid-19) Act 2020.”

This amendment is cause for some confusion. The Act’s preamble, the explanatory memorandum accompanying the Act and indeed the Dail debates make it clear that the Act is to effect “the operation of certain provisions of the Residential Tenancies Act 2004”. However the prohibition of “all proposed evictions in all tenancies in the State” could be interpreted as also applying to commercial leases

The context of the amendment by reference to the Dáil debates suggests that protection of local authority tenants and members of the travelling community was in the mind of the deputies who tabled the amendment rather than commercial tenancies. It remains to be seen how this section will be relied upon and interpreted by the Courts. The Courts do not generally have regard to Dáil debates in interpreting statutes.

Termination Notices

Landlords are prohibited from serving notices of termination, on any ground to include anti social behaviour, during the Emergency Period.

Notices of termination which were served prior to 27 March 2020 are paused for the duration of the Emergency Period. In those cases, a “revised termination date” rather than the termination date provided for in the notice of termination will apply.

The “revised termination date” will be the sum of the following:

1. The length of the Emergency Period, and

2. The length of notice which was left to run as at 27 March 2020

By way of example, if there were 100 days left to run on a notice of termination as at 27 March 2020, there will still be 100 days left to run following the expiration of the Emergency Period.

Evictions

Under the Act, the general rule is that tenants cannot be evicted during the Emergency Period. Evictions are not defined in the Act.

However, evictions are possible in exceptional circumstances where the Residential Tenancies Board (the RTB) has determined, following the hearing of a dispute or an appeal, that the tenant is required to vacate.

Rent freeze

Rent increases due to come into effect within the Emergency Period are paused.

Unlike the position with termination notices served prior to the introduction of the Act, revised dates do not apply to rent increase notices. Rather, the Act is silent in this regard and as such it is understood that rent increase notices that were due to take effect during the Emergency Period will take effect immediately after the expiration of the Emergency Period.

Conversely, it is open to landlords and tenants to agree rent reductions. Landlords should exercise caution when doing so and ensure that it is understood, and documented, that any such reduction is temporary in nature only and relates to COVID-19 rather than being a formal rent review. This is to ensure that future rent reviews will be carried out by reference to the rent provided for in the lease rather than any lesser temporary amount agreed.

There is no prohibition on serving rent increase notices during the Emergency Period.

Additional provisions

The Act also includes a number of other provisions which will apply during the Emergency Period. These include:

• In respect of tenancies to which Part IV does not apply, landlords are required to give 28 rather than 14 days’ warning in respect of arrears of rent.

• Landlords continue to be entitled to serve warning notice in respect of any breach by the tenant of his / her obligations. Landlords should exercise caution around the wording of any such notices, and in particular should not threaten to serve a notice of termination during the Emergency Period.

• The Emergency Period will not be reckoned for the purposes of calculating the first six months of a tenancy. The tenancy is paused for the duration of the Emergency Period. In this way, a landlord will remain entitled after the expiration of the Emergency Period to serve a notice to stop a Part IV tenancy accruing provided it is done within the first six months of the tenancy (excluding the duration of the Emergency Period).

• Members of the travelling community cannot be evicted from their current location during the Emergency Period except where, in consultation with that person, movement is required to ameliorate hardship and provide protection.

Comment

The Act severely curtails a landlord’s ability to deal with the tenancy during the Emergency Period.

Given the economic fallout people are faced with as COVID-19 continues, coupled with the legitimate aims of the Act and the fact that it is for an initial period of three months; it is arguable that the temporary restrictions placed upon landlords are proportionate. However, it is not beyond the realms of possibility that following the expiration of the Emergency Period there will be a rush on the dispute resolution services of the RTB as landlords and tenants tease out the Act’s implications.

For more information on the continuing impact of the COVID-19 crisis on your business and operations, contact a member of our Real Estate or Dispute Resolution teams.

The content of this article is provided for information purposes only and does not constitute legal or other advice.