Balancing the Interests of Landlords and Tenants: The Quiet Unravelling of COVID-19 Protections

Rachael Walsh, Trinity College Dublin 

 

Introduction

Preventing evictions in the context of the COVID-19 crisis was originally conceived of as a public health measure, which in March 2020 was deemed by the legislature to merit a blunt prohibition on all evictions. This was aimed at preventing additional movement in the community caused by the need to find alternative accommodation and a potential increase in the numbers of people living in dangerous congregated settings such as hostels and family hubs. However, in the aftermath of Ireland’s first lockdown, legal and political concerns quickly surfaced about the need to finesse such protections to better protect landlords’ constitutionally guaranteed property rights. Since then, there has been a progressive contraction in tenant protections. A complex legislative scheme has emerged in a piece-meal way, involving multiple enactments and amendments in just over 12 months, aimed at balancing the interests of landlords and tenants in the context of the ongoing public health crisis. 

 

Current COVID-19 Protections for Tenants

Two strands of tenant protection currently exist in Irish law in response to the COVID-19 crisis. The first, analysed in a previous post, is a general moratorium on evictions that automatically comes into effect pursuant to s. 2 of the Residential Tenancies Act 2020 whenever the Minister for Health ‘makes relevant regulations which impose restrictions on travel outside a 5 kilometre radius of a person’s place of residence’. That provision does not prevent rent increases during such an ‘emergency period’. The 2020 Act has been amended by the Residential Tenancies Act 2021 to exclude evictions that are based on the non-payment of rent or other charges due under the terms of a lease by a tenant. This amendment added to the initial exclusions that applied in respect of anti-social behaviour, behaviour that threatens the physical integrity of rented premises or compromises insurance, and behaviour that involves the use of rented premises for purposes other than those provided for under the terms of the lease without the landlord’s permission. The Residential Tenancies Act 2021 was explained in its Explanatory Memorandum as aiming to further protections for tenants in the context of COVID-19 while also recognising and balancing the constitutional property rights of landlords. The Minister for Housing made repeated references to the need to protect property rights in explaining and defending the Bill in the Dáil. 

 

Travel within one’s county is permitted as of 12^th April 2021, which marks the end of the general moratorium on evictions that was in place pursuant to the Residential Tenancies Act 2020. A ten-day grace period will run out on 22nd April 2021, allowing notices of termination to take effect from 23^rd April onwards in accordance with the terms of the Act. Thereafter, to be protected against eviction on grounds of non-payment of rent, a tenant must avail of the protections under the Planning and Development, and Residential Tenancies Act 2020(the PDRTA), which was enacted on 19th December 2020. The core tenant protections that it created were due to expire on 12th April 2021 but were extended by the Residential Tenancies Act 2021 until 12th July 2021. Part 3 of the PDTRA developed the ‘hardship’ protections for tenants that had initially been enacted in August 2020 through the Residential Tenancies and Valuation Act (at that stage as a replacement for the general moratorium on evictions that had been in place during the first wave of COVID-19 in Ireland). 

 

Under Part 3 of the PDTRA, a tenant can self-declare to the Residential Tenancies Board (RTB) that he/she is or was in receipt of the temporary wage subsidy or other COVID-19 related payment and is at risk of having their tenancy terminated due to non-payment of rent. The tenant must then formally seek the assistance of the RTB in obtaining advice in respect of managing their arrears, and must also seek engagement from their landlord to negotiate a payment plan. Where a tenant satisfies the relevant criteria and follows the detailed procedural steps set out in the PDRTA, the earliest date that a notice of termination could take effect is 12th July 2021 and no rent increases could be imposed during that period. 

 

However, there are significant exclusions under the PDTRA in addition to the active steps required to be taken by tenants to avail of protection. If on 10^th January 2021, a tenant was in arrears for 5 months or more, or an aggregate of 5 months, the tenant is excluded from protection. Equally if the tenant fails to provide necessary information to the RTB to enable it to provide advice to the tenant, PDTRA protections are disapplied. Furthermore, the protections cease to apply to a tenant where a landlord declares to the RTB that the 5-month limit has been reached in respect of arrears, or there has been a failure to comply with a revised payment plan, or that the landlord would suffer ‘undue hardship’ if the rent was not paid during the relevant emergency period. In this respect, a landlord can self-declare to the RTB if in receipt of COVID-19 related welfare support from the State, or where the rent in question is the sole or main income received by the landlord, or where the property in question is mortgaged and repayments will not be possible if rent is not paid during the emergency period. Presumably when faced with declarations of hardship from both a landlord and a tenant in respect of a given rented property, the RTB has the difficult task of determining whose risk of hardship is greater. The issue of conflicting claims of hardship is not expressly addressed in the PDTRA, but it appears that if the landlord’s hardship claim is accepted by the RTB, that will exclude a tenant from protection under the Act. 

 

Conclusions

The effect of the Residential Tenancies Act 2021 is that most tenants in the private rental sector will soon be unprotected against eviction, since the general moratorium on evictions will no longer apply as of 23^rd April 2021. Furthermore, even if that general moratorium is restored in the event of a future 5km travel restriction, it will no longer capture tenants who are at risk of eviction due to non-payment of rent. In this context, it is worth noting that 33% of the disputes that the Residential Tenancies Board dealt with in Q3 of 2020 concerned rent arrears. 

 

Tenants who cannot, or may not, be able to pay their rent due to COVID-19 are now required to avail of the protections under the PDRTA. The tenant protection scheme established under the PDRTA is complex and imposes onerous requirements on tenants: first, working out that they satisfy the complex criteria for protection under the Act; second, issuing the appropriate declaration and supporting information to the RTB; third, issuing a formal notice to their landlord and engaging with the landlord; fourth, engaging with arrears support services as directed by the RTB. It is perhaps unsurprising, therefore, that take-up of that protection has been extremely limited, with only 407 tenants protected since the initial hardship scheme came into force in August 2020.

 

The aim of avoiding overlap between the general moratorium on evictions and the scheme for protecting tenants in arrears – or, as the Explanatory Memorandum puts it more obliquely, enhancing the ‘interoperability’ of those tenant protection schemes – is not per se objectionable. However, given the complexity of the PDRTA scheme and the time involved for a tenant in meeting the various requirements that it imposes, many vulnerable tenants may find themselves suddenly without protection against eviction due to the recent legislative changes. This raises the prospect of a significant increase in evictions occurring at a time when the public health situation remains precarious and the vaccine rollout has not reached large swathes of the population, in particular younger people who are more likely to be renting. 

 

That state of affairs, if achieved as suggested by the Minister for Housing to protect the constitutional property rights of landlords, pays insufficient attention to Article 43.2 of the Constitution’s injunction that the State delimit the exercise of property rights to secure ‘the principles of social justice’ and to reconcile property rights with ‘the exigencies of the common good’. In the context of an ongoing global pandemic, the quiet unravelling of tenant protections could have been postponed until the public health situation improved without entrenching disproportionately on the constitutionally protected property rights of landlords. 

 

Rachael Walsh is an assistant professor of law at Trinity College Dublin.

 

Suggested citation: Rachael Walsh, ‘Balancing the Interests of Landlords and Tenants: The Quiet Unravelling COVID-19 Protections’ COVID-19 Law and Human Rights Observatory Blog (22 April 2021) https://tcdlaw.blogspot.com/2021/04/balancing-interests-of-landlords-and.html