Pressing Pause or Adjusting the Balance: Covid-19 and Security of Tenure in Residential Tenancies

Sarah Hamill, Trinity College Dublin

 

As various countries around the world begin to cautiously re-open, the question is whether the global health crisis will represent a pause in normal life or whether it will result in long-term changes. Certainly, in the Irish context, the Covid-19 crisis has required emergency changes in many areas, including several which were already the subject of longstanding debate and calls for reform. Two such areas are healthcare and housing. The focus of this post is housing and, more specifically, the recently extended eviction moratorium and its effects on the security of tenure provisions in the Residential Tenancies Act 2004.

Security of tenure is a term that can apply to a range of situations, including housing, employment and so on. In the context of residential tenancies, security of tenure refers to the tenant’s or tenants’ rights to remain in occupation of the rented property. In Ireland, as in many other jurisdictions, a tenant’s right of occupation is governed by statute as well as by the lease agreement between landlord and tenant. In Ireland, the relevant legislation is the Residential Tenancies Act 2004, more specifically, Part 4. This Act introduced provisions which cannot be contracted out of and which apply to all residential tenancies in Ireland.

In effect, after any residential tenancy has been in existence for six months Part 4 of the 2004 Act is engaged and governs how and when the tenancy can be ended. Provided no valid notice of termination is issued to the tenant in the first six months of a residential tenancy, the tenant acquires security of tenure and can stay in the property for four years if the tenancy started before 24 December 2016, or six years where the tenancy started after that date. Part 4 tenancies can only be validly terminated prior to the end of the stipulated years on a set number of grounds.

The Residential Tenancies Act 2004, Part 4 and subsequent amendments are part of a longstanding struggle to find a balance between the tenant’s right to remain in the property and the landlord’s right to possession. Part of the challenge in finding a balance here is that both rights are protected by various national, and international laws. For example, article 8 of the European Convention on Human Rights protects the right to respect for a person’s home, while Article 1 of Protocol 1 of the ECHR protects property rights. Meanwhile the United Nations recognises both the right to housing and the right to property. At a more local level, the Irish Constitution grants protection to property rights but also limits them based on the principles of social justice. Whether a tenant’s rights in the residential property amount to property rights which are protected by the Constitution is unclear. There are occasional hints of judicial support but no conclusive statement. For the most part, tenants’ property rights are delineated by statute rather than the Constitution (see the discussion here).

Over the years the exact nature of the balance struck between landlord and tenant has varied. The timing of the 2004 Act is suggestive of the need for a re-balancing in the height of the Celtic Tiger years, while later amendments have come in response to the growing housing crisis prompted by the economic recovery. So too has the global pandemic necessitated further legislative intervention in the landlord-tenant relationship. An earlier post covered rent increases, but so too did the Emergency Measures in the Public Interest (Covid-19) Act 2020 make changes to security of tenure.

The 2020 emergency measures placed a moratorium on evictions of tenants in residential tenancies (with two narrow exceptions: where the eviction was the result of an adjudicator, or tribunal decision per sections 97 and 108 of the 2004 Act respectively). The underpinning rationale behind the moratorium is the need to restrict movement in order to limit the risk of exposure to Covid-19. At the start of the emergency period, the government encouraged everyone to stay at home and, quite obviously, allowing evictions to continue during the emergency period would run counter the advice to stay at home.The emergency measures explicitly include licensees as tenants which matters in that not every residential tenancy is a tenancy within the legal meaning of the word. As such, licensees are also protected by the moratorium on evictions. So too do the measures cover potential evictions to tenancies not covered by the 2004 Act. If a valid termination notice had been served prior to March 27, with the date of termination due to be during or after the emergency period, that termination date will become the revised termination date. The revised termination date is defined by the emergency measures as being the unexpired notice between the start of the emergency period and the original date of termination and the length of the emergency itself. No landlord can serve a termination notice during the emergency period.

 
The emergency measures go further, however. They make it clear that the emergency period will not grant security of tenure under Part 4 of the 2004 act if a valid termination notice had been served prior to the start of the emergency period. The 2020 measures also, by virtue of section 5 (1) (b), work to prevent any tenant acquiring a part 4 tenancy by virtue of the emergency period if the length of the emergency period is the only reason they would have been a tenant for longer than six months. Thus not only do the emergency measures place pause on evictions, they also place pause on the acquisition of security of tenure under Part 4.

Obviously, the moratorium on evictions and the pausing of acquiring security of tenure affect both tenants’ and landlords’ rights in different ways. The landlord is kept out of possession and cannot even issue a termination notice until the emergency period ends. Meanwhile tenants do not gain the rights that they normally would with the passage of time.

As with all legislative tinkering with property, the concern of commentators immediately turns to questions of constitutionality. As noted by Rachael Walsh, Irish property rights are more nuanced than the popular opinion and political concerns might claim or think. The measures relating to security of tenure in the 2020 Act are clear, they apply to every residential tenancy with no exceptions, they are designed to be time-limited, and they are in response to an emergency situation. It is hard to imagine any Irish court finding them unconstitutional.

Once the 2020 emergency measures cease to exist, there is the risk that Ireland’s residential tenancies’ sector will revert to the way it was before. While the 2004 Act does strive to find a balance between landlord and tenants’ rights, the economic and social recovery from the pandemic will not be instantaneous. Certain provisions relating to security of tenure and rent freezes may need to be extended yet again, if only to take into account the realities of job losses, reduced hours, and other factors which may limit a tenants’ ability to pay rent, particularly if the pandemic unemployment payment stops too early. The longer the provisions relating to residential tenancies are extended, however, the greater the risk that a constitutional challenge will be brought. Yet the early or abrupt ending of the provisions relating to residential tenancies also run the risk of increased evictions for rent arrears if the economic recovery is slower than anticipated. 

All of which illustrates that if a fair balance is to be struck between tenants’ rights and landlords’ rights, the landlord-tenant relationship must be examined in context. As the Covid-19 pandemic has illustrated, public health concerns can be part of the context which necessitates a strict, if time-limited intervention in the relationship between landlord and tenants. The question is how long the effects of the pandemic will continue to be seen as justifying the moratorium on evictions and the moratorium on acquiring security of tenure under Part 4 of the 2004 Act, and what happens when these twin moratoriums end.

There is constitutional provision to draw on concerns wider than public health emergencies in order to limit property rights and so too has the new government got ambitious plans for housing. Only time will tell whether the 2020 emergency measures were pressing pause or the start of a significant readjustment in housing and property rights in Ireland.

Sarah Hamill is an assistant professor in the School of Law at Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Sarah Hamill, 'Pressing Pause or Adjusting the Balance: Covid-19 and Security of Tenure in Residential Tenancies' COVID-19 Law and Human Rights Observatory Blog (20 July 2020) http://tcdlaw.blogspot.com/2020/07/pressing-pause-or-adjusting-balance.html

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The information provided in this document is not legal advice or professional advice of any other kind, and should not be considered to be such, or relied or acted upon in that regard. If you need legal or other professional advice, you should consult a suitably qualified person.