The Residential Tenancies Act, 2004 applies to every dwelling which is the subject of a tenancy, subject to some exceptions.
The most important exceptions are
- a dwelling let for holiday purposes
- a dwelling within which the landlord resides
- a dwelling within which the spouse, parent or child of the landlord resides.
In fact, there are nine categories of dwelling not covered by the Residential Tenancies Act, 2004 which are set out in section 3(1) (subsection 2) of the Act:
|(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—|
|(a) a dwelling that is used wholly or partly for the purpose of carrying on a business, such that the occupier could, after the tenancy has lasted 5 years, make an application under section 13 (1)(a) of the Landlord and Tenant (Amendment) Act 1980 in respect of it,|
|(b) a dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies,|
|(c) a dwelling let by or to—|
|(i) a public authority, or|
|(ii) a body standing approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act 1992 and which is occupied by a person referred to in section 9 (2) of the Housing Act 1988 ,|
|(d) a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 , the fee simple in respect of it,|
|(e) a dwelling occupied under a shared ownership lease,|
|(f) a dwelling let to a person whose entitlement to occupation is for the purpose of a holiday only,|
|(g) a dwelling within which the landlord also resides,|
|(h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling,|
|(i) a dwelling the subject of a tenancy granted under Part II of the Landlord and Tenant (Amendment) Act 1980 or under Part III of the Landlord and Tenant Act 1931 or which is the subject of an application made under section 21 of theLandlord and Tenant (Amendment) Act 1980 and the court has yet to make its determination in the matter.|
Residential Tenancies Act 2004
Part 2 of the Residential Tenancies Act, 2004 is divided into 2 chapters. Chapter 1 deals with the landlord’s obligations and chapter 2 deals with the tenant’s obligations.
Section 12 sets out the landlord’s obligations:
|12.—(1) In addition to the obligations arising by or under any other enactment, a landlord of a dwelling shall—|
|(a) allow the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling,|
|(b) subject to subsection (2), carry out to—|
|(i) the structure of the dwelling all such repairs as are, from time to time, necessary and ensure that the structure complies with any standards for houses for the time being prescribed under section 18 of the Housing (Miscellaneous Provisions) Act 1992 , and|
|(ii) the interior of the dwelling all such repairs and replacement of fittings as are, from time to time, necessary so that that interior and those fittings are maintained in, at least, the condition in which they were at the commencement of the tenancy and in compliance with any such standards for the time being prescribed,|
|(c) subject to subsection (3), effect and maintain a policy of insurance in respect of the structure of the dwelling, that is to say a policy—|
|(i) that insures the landlord against damage to, and loss and destruction of, the dwelling, and|
|(ii) that indemnifies, to an amount of at least €250,000, the landlord against any liability on his or her part arising out of the ownership, possession and use of the dwelling,|
|(d) subject to subsection (4), return or repay promptly any deposit paid by the tenant to the landlord on entering into the agreement for the tenancy or lease,|
|(e) notify the tenant of the name of the person, if any, (the “authorised agent”) who is authorised by the landlord to act on his or her behalf in relation to the tenancy for the time being,|
|(f) provide to the tenant particulars of the means by which the tenant may, at all reasonable times, contact him or her or his or her authorised agent,|
|(g) without prejudice to any other liability attaching in this case, reimburse the tenant in respect of all reasonable and vouched for expenses that may be incurred by the tenant in carrying out repairs to the structure or interior of the dwelling for which the landlord is responsible under paragraph (b) where the following conditions are satisfied—|
|(i) the landlord has refused or failed to carry out the repairs at the time the tenant requests him or her to do so, and|
|(ii) the postponement of the repairs to some subsequent date would have been unreasonable having regard to either—|
|(I) a significant risk the matters calling for repair posed to the health or safety of the tenant or other lawful occupants of the dwelling, or|
|(II) a significant reduction that those matters caused in the quality of the tenant’s or other such occupants’ living environment,|
|(h) if the dwelling is one of a number of dwellings comprising an apartment complex—|
|(i) forward to the management company, if any, of the complex any complaint notified in writing by the tenant to him or her concerning the performance by the company of its functions in relation to the complex,|
|(ii) forward to the tenant any initial response by the management company to that complaint, and|
|(iii) forward to the tenant any statement in writing of the kind referred to in section 187 (2) made by the management company in relation to that complaint.|
|(2) Subsection (1)(b) does not apply to any repairs that are necessary due to the failure of the tenant to comply with section 16 (f).|
|(3) The obligation under subsection (1)(c) does not apply at any particular time during the term of the tenancy concerned if, at that time, a policy of insurance of the kind referred to in that provision is not obtainable, or is not obtainable at a reasonable cost, by the landlord in respect of the dwelling.|
|(4) Subsection (1)(d) applies and has effect subject to the following provisions:|
|(a) no amount of the deposit concerned shall be required to be returned or repaid if, at the date of the request for return or repayment, there is a default in—|
|(i) the payment of rent and the amount of rent that is in arrears is equal to or greater than the amount of the deposit, or|
|(ii) compliance with section 16 (f) and the amount of the costs that would be incurred by the landlord, were he or she to take them, in taking such steps as are reasonable for the purposes of restoring the dwelling to the condition mentioned in section 16 (f) is equal to or greater than the amount of the deposit,|
|(b) where, at the date of the request for return or repayment, there is a default in the payment of rent or compliance with section 16 (f) and subparagraph (i) or (ii), as the case may be, of paragraph (a) does not apply, then there shall only be required to be returned or repaid under subsection (1)(d) the difference between the amount of rent that is in arrears or, as appropriate, the amount of the costs that would be incurred in taking steps of the kind referred to in paragraph (a)(ii).|
|(5) For the avoidance of doubt, the condition in subsection (1)(g)(i) is satisfied if, after all reasonable attempts, the landlord or his or her authorised agent could not be contacted to make the request concerned.|
In addition to the above obligations, the landlord is also prohibited under section 14 from:
A tenant’s obligations are set out at section 16 of the Act:
|16.—In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall—|
|(a) pay to the landlord or his or her authorised agent (or any other person where required to do so by any enactment)—|
|(i) the rent provided for under the tenancy concerned on the date it falls due for payment, and|
|(ii) where the lease or tenancy agreement provides that any charges or taxes are payable by the tenant, pay those charges or taxes in accordance with the lease or tenancy agreement (unless provision to that effect in the lease or tenancy agreement is unlawful or contravenes any other enactment),|
|(b) ensure that no act or omission by the tenant results in there not being complied with the obligations of the landlord, under any enactment, in relation to the dwelling or the tenancy (and in particular, the landlord’s obligations under regulations under section 18 of the Housing (Miscellaneous Provisions) Act 1992 ),|
|(c) allow, at reasonable intervals, the landlord, or any person or persons acting on the landlord’s behalf, access to the dwelling (on a date and time agreed in advance with the tenant) for the purposes of inspecting the dwelling,|
|(d) notify the landlord or his or her authorised agent of any defect that arises in the dwelling that requires to be repaired so as to enable the landlord comply with his or her obligations, in relation to the dwelling or the tenancy, under any enactment,|
|(e) allow the landlord, or any person or persons acting on the landlord’s behalf, reasonable access to the dwelling for the purposes of allowing any works (the responsibility for the carrying out of which is that of the landlord) to be carried out,|
|(f) not do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy, but there shall be disregarded, in determining whether this obligation has been complied with at a particular time, any deterioration in that condition owing to normal wear and tear, that is to say wear and tear that is normal having regard to—|
|(i) the time that has elapsed from the commencement of the tenancy,|
|(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen would occur since that commencement, and|
|(iii) any other relevant matters,|
|(g) if paragraph (f) is not complied with, take such steps as the landlord may reasonably require to be taken for the purpose of restoring the dwelling to the condition mentioned in paragraph (f) or to defray any costs incurred by the landlord in his or her taking such steps as are reasonable for that purpose,|
|(h) not behave within the dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in such a way,|
|(i) not act or allow other occupiers of, or visitors to, the dwelling to act in a way which would result in the invalidation of a policy of insurance in force in relation to the dwelling,|
|(j) if any act of the tenant’s, or any act of another occupier of, or visitor to, the dwelling which the tenant has allowed to be done, results in an increase in the premium payable under a policy of insurance in force in relation to the dwelling, pay to the landlord an amount equal to the amount of that increase (“the increased element”) (and that obligation to pay such an amount shall apply in respect of each further premium falling due for payment under the policy that includes the increased element),|
|(k) not assign or sub-let the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),|
|(l) not alter or improve the dwelling without the written consent of the landlord which consent the landlord—|
|(i) in case the alteration or improvement consists only of repairing, painting and decorating, or any of those things, may not unreasonably withhold,|
|(ii) in any other case, may, in his or her discretion, withhold,|
|(m) not use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold), and|
|(n) notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling.|
Rent may not be set at an amount greater than the market rent for the tenancy in question and any disputes can be referred to the Tenancy Tribunal of the Private Residential Tenancies Board (www.prtb.ie) as per Part 3 of the Act.
Part 4 Tenancy
One of the most important effects of the residential tenancies act is that where a person has been in occupation, under a tenancy, for a continuous period of 6 months then, provided no notice of termination has been served, then the tenancy will continue for 4 years.
This right of the tenant is of huge significance for many landlords and this tenancy is then called a Part 4 tenancy.
Termination of Residential Tenancies
Tenants of fixed term tenancies ie the standard 12 month letting agreement common in Ireland have security of tenure from the word go as a result of their 12 month agreement.
Termination of a Residential Letting by the Landlord
A landlord can terminate a Part 4 tenancy prematurely on one of 6 grounds laid down by the legislation and only then when he serves a notice of termination stating the ground and has served the notice in accordance with the notice periods laid down by the act.
The 6 grounds for premature termination of a Part 4 tenancy by the landlord are
- The tenant has failed to comply with their obligations. However the landlord has to notify them of their failure and give them a reasonable time to remedy the failure.
- The property is no longer suitable for the tenant.
- The landlord intends entering into an agreement within 3 months to sell the property.
- The landlord requires the property for his own use or for a family member (but he must specify who he needs it for and for how long)
- The landlord intends refurbishing or renovating the property.
- The landlord intends changing the use of the property to some other use.
The above grounds are provided for in section 34 of the Residential Tenancies act, 2004.
If the landlord uses one of these grounds dishonestly then the tenant can make a complaint to PRTB and they can award compensation to the tenant.
PRTB awarded over €5,000 to a tenant who had been illegally evicted in Galway in 2006.
Termination of a Residential Letting by the Tenant
The tenant may terminate by giving a notice of termination to the landlord with the required notice period.(Section 36) Unlike the landlord the tenant can bring a Part 4 tenancy to an end without giving a reason.
Section 37 provides for a deemed termination by the tenant:
A landlord can terminate a tenanc, provided it is not a fixed term tenancy, within the first 6 months without giving a reason.
However he must give the statutory notice period.
12 Month Fixed Term Tenancy
Where there is a fixed term tenancy, the right to terminate prematurely in this instance is limited to situations where either party is in breach of the agreement or in breach of their statutory obligations.
Landlords need to be careful here as the fixed term tenancy gives more protection to the tenant than they would have if they only had a Part 4 tenancy as this can be terminated in the first 6 months without giving a reason.
Further Part 4 Tenancies
Where a tenancy continues to the end of the 4 years of the part 4 tenancy and neither party serves notice of termination then a further Part 4 tenancy will arise and will last for 4 more years.
Multiple Occupants-Chapter 6
Security of tenure applies to any premises occupied by multiple tenants from the earliest date at which any of them has 6 months occupation clocked up. The rules for multiple occupants are set out in chapter 6 of the Act.
You can not contract out of Part 4 of the act which means no matter what you want to agree with the tenant he has his statutory entitlement to a Part 4 tenancy.
Termination Notices-Part 5
Notice must be served to terminate the agreement in all cases. The periods are different for tenants and landlords and are set out in part 5 of the Act in sections 65, 66, 67. 68, and 69.
A termination notice must
- Be written
- Signed by the landlord/tenant
- Specify the date of service
- If the tenancy is for more than 6 months state the reason
- The date of termination
|66.—(1) This section applies where the tenancy is being terminated—|
|(a) otherwise than by reason of the landlord’s or tenant’s failure to comply with any of the obligations of the tenancy, or|
|(b) by reason of such a failure but a condition in another section of this Chapter is required to be satisfied if the period of notice provided by that section is to apply and that condition is not satisfied.|
|(2) Where this section applies the period of notice to be given by the notice of termination is—|
|(a) in the case of a termination by the landlord, the period mentioned in column (2) of Table 1 to this section opposite the mention of the duration of the tenancy concerned in column (1) of that Table, and|
|(b) in the case of a termination by the tenant, the period mentioned in column (2) of Table 2 to this section opposite the mention of the duration of the tenancy concerned in column (1) of that Table.|
|(3) This section is subject to section 69 .|
|Termination by Landlord|
|Termination by Tenant|
The table above applies where neither the landlord nor the tenant is in default.
Where the landlord wants to terminate where the tenant is in breach the period depends on the default-anti social behaviour requires only 7 days notice.
For any other reason the period is 28 days and if it is non payment of rent then the landlord must first notify the tenant in writing that the rent is overdue. He must wait 14 days and then serve the notice of termination of 28 days.
Time limit for disputing a notice of termination
Must be referred to PRTB within 28 days of receipt of the notice.
Tenancy Disputes in Residential Letting Agreements
The tenancy tribunal plays an important role in the resolution of tenancy disputes.
The resolution of tenancy disputes in residential letting agreements is governed by Part 6 of the Residential Tenancies Act 2004. The dispute resolution committee of the PRTB replaces the courts.
The main areas of dispute
- deposit retention
- illegal evictions
- invalid notices of termination
- rent arrears
- breaches of obligations
- anti-social behaviour
A dispute may be referred for Mediation, Adjudication, Tribunal Hearing.
If the dispute is not resolved by mediation or adjudication then it will be referred to a Tenancy Tribunal. The PRTB can refer directly to a tribunal if it chooses.
If mediation takes place and is unsuccessful then it must be referred to a tribunal. A party to a determination can also appeal a decision of an adjudicator to a tenancy tribunal.
Generally a tenancy dispute must be referred within 28 days of notice being given which gives rise to the dispute or for example the termination of the tenancy.
The PRTB can refuse to deal with a complaint if it is
2. statute barred in the context of court proceedings
3. concerns a dwelling to which the Residential Tenancies act does not apply.
The PRTB will not deal with a reference to it by an unregistered landlord. However if the landlord registers the tenancy within a reasonable time it may then deal with it (if it chooses)
A tenant can always refer a dispute as the obligation to register the tenancy is the landlord’s.
2 stage procedure
PRTB uses a 2 stage procedure to resolve disputes. The first stage is mediation or adjudication.
The second stage is a public hearing by a tenancy tribunal if not resolved at the first stage.
A mediator prepares a report and the PRTB makes a determination order within 7 days which contains the terms of the agreement reached by the parties.
If there is no agreement then the tenancy dispute goes to a tenancy tribunal.
An adjudicator reaches a decision him/herself. The adjudicator prepares a report for PRTB and they then issue a determination order.
This order is binding unless appealed by one or both of the parties to a tenanct tribunal within 21 days. There is a form of cross examination in an adjudication but the adjudicator controls the process.
A tenancy tribunal deals with
1. disputes referred directly by the PRTB
2. disputes where mediation has not worked
3. where the tenancy dispute is the subject of an appeal from a determination of an adjudicator.
Each party is entitled to be heard, be represented, give evidence and call witnesses at the hearing. Costs of witnesses or professional representation will not generally be awarded.
PRTB makes this order after receiving a report from
1. a mediator
2. an adjudicator
3. a tenancy tribunal
It is binding when issued. A determination order from a tenancy tribunal determination may be appealed to the High Court within 21 days on a point of law only.
Failure to comply is an offence and the PRTB can prosecute people for failing to comply with a determination order or it can apply to the Circuit court for an order forcing compliance.
If the PRTB prosecutes instead for failure to comply with a determination order the penalties possible are up to 6 months in jail or a fine up to €3,000 or both.
The resolution of tenancy disputes is an important skill for anybody letting residential property. Legal advice should be obtained if you are in doubt about your rights as a landlord or tenant.
Please use the contact form below if you need legal advice in relation to any aspect of residential letting agreements or need a letting agreement drafted.