Reform of residential tenancy law long overdue
OPINION:An amendment to the Residential Tenancies act is a missed opportunity and fails to address well-known problems
THE REGULATORY framework governing private renting in Ireland is in crisis. The Residential Tenancies Act 2004 (RTA) aimed to modernise and professionalise the private rented sector. It set out the rights and obligations of landlords and tenants in a comprehensive way and established the Private Residential Tenancies Board (PRTB) to replace the courts in most disputes in the private rented sector.
Eight years on it is clear that the RTA has failed to live up to expectations.
The stunning complexity of the legislation means that landlords and tenants struggle to identify and interpret relevant legal rules.
The rules for termination of tenancies, for example, are a legal minefield. The PRTB dispute-resolution procedures are multilayered and, in many cases, do not facilitate fast outcomes. This is especially frustrating for landlords trying to enforce non-payment of rent or to repossess rented premises, and for tenants whose deposits have been unlawfully withheld by their landlord.
Also, even after a dispute has been determined by the PRTB, there is no guarantee of compliance and it may be necessary to bring Circuit Court proceedings to enforce the PRTB order, adding further cost and delay to an already protracted process.
Demand for the PRTB’s dispute-resolution services has grown exponentially in recent years, creating further pressure on stretched resources. Landlords and tenants need a legislative scheme that is user friendly, together with an efficient mechanism for resolving disputes.
The urgency of delivering these two objectives is highlighted by the Census 2011 data recently published by the Central Statistics Office in The Roof Over our Heads. This data reveals significant growth in the number of rented households and confirms that between 2006 and 2011 the rate of home ownership dropped (from 74.7 per cent to 69.7 per cent). So it is more important than ever that the private rented sector is regulated effectively.
The long-awaited Residential Tenancies (Amendment) (No 2) Bill 2012 was published on July 19th, 2012. In addition to extending the scope of the RTA to include certain tenancies in the voluntary and co-operative housing sector, it contains amendments aimed at promoting mediation in dispute resolution. Both of these proposals are positive and welcome developments. But the addition of the voluntary and co-operative housing sector will further stretch the PRTB’s scarce resources and it remains to be seen whether the revised mediation rules, if enacted, will lead to a higher take-up of mediation.
With regard to revision of the RTA, however, the Bill, in its current form, is a missed opportunity and fails to address adequately well-known problems with the legislative framework.
The bill does not attempt to simplify the intricate rules governing the content of notices of termination. Nor does it attempt to set any statutory time frame within which a determination order should be issued following an application to the PRTB for dispute resolution.
There is no provision in the Bill to clarify the long-standing ambiguity around the interaction between fixed-term tenancy agreements and the provisions governing tenancy termination set down in the RTA.
No changes are proposed to the controversial provisions on “anti-social” behaviour. Apart from the proposed amendments to the rules on mediation, there are no plans to streamline the dispute resolution process more generally or to address the significant problems, in practice, around enforcement of PRTB orders.
It is notable, however, that at the time of the Bill’s publication, Minister for Housing and Planning Jan O’Sullivan indicated that other significant policy issues would be addressed later. In particular, it is anticipated that amendments may be introduced in relation to the establishment of a deposit protection scheme, although this depends on the outcome of a research project on this topic commissioned by the PRTB. This was promised in the Programme for Government to address the significant practical problem of landlords unreasonably keeping deposits after the tenancy has ended. The Minister is also committed to addressing the issue of non-payment of rent by tenants.
The Bill presents the chance to address the many problems in the day-to-day operation of the RTA. The Government cannot afford to squander this opportunity by simply tinkering with selected elements of the legislation.
Fundamental revision is needed, together with adequately resourced supporting measures to promote awareness of rights and obligations among landlords and tenants in order to reduce the scope for disputes.
Dr Áine Ryall is a senior lecturer in the faculty of law at UCC
The text of the Bill is available at oireachtas.ie.