Subscriber OnlySocial Affairs

Many tenants overholding on properties as they can find nowhere else to go

Rent arrears and overholding were the most frequent dispute types reported to the RTB in 2021, analysis shows

A tenant who had been served an eviction notice for the Co Clare property in which he lived with his family said he had no place to go.

Appearing before a tenancy tribunal via Microsoft Teams, the man, who had been accused of overholding by the landlord, said there were “many things wrong” with the house, such as the heating system.

The family did not like the dwelling, he said, adding they were not going to stay but “cannot find anywhere” else to live.

The tenant was facing a tribunal of three decision-makers in one of the final steps in the dispute-resolution process between landlords and tenants, held by the Residential Tenancies Board (RTB).

READ MORE

The determination of the tribunal is binding, and can be appealed only on a point of law via the High Court.

When a determination order is issued by the tribunal, it can be enforced if a party involved in the case makes an application to the District Court to make the RTB decision a court order. This, barristers working in the sector have said, is not unusual and does happen, though is not required in the majority of cases as most people comply.

In the Co Clare case, heard in March 2022, the tribunal determined that the tenant and his family must vacate the dwelling within 28 days of the date of issue of the determination order.

There is desperation in many of the cases heard by the tribunals, with the disputes often laying bare the extent of the housing and homelessness crisis.

In May 2022, one appellant in Dublin had his appeal heard by a tribunal after he was served an eviction notice. Despite viewing 10 properties, he said he could not find alternative accommodation.

The tenant, who was accused of overholding, said he believed he was competing with about 800 other people for each property he attempted to rent.

He had two young children who were attending a school near the dwelling, he said, adding that a move to alternative accommodation would involve a change of school which would cause upset to his children.

The tribunal determined that the tenant must vacate and give up possession of the dwelling within a 42 days of the date of issue of the determination order.

The Irish Times analysed the almost 400 RTB tribunal reports and determination orders that were published in 2022. The reports detailed the disputes arising between tenants and landlords, or, in some cases, third parties who claimed to be affected by a tenancy.

According to the RTB’s data, rent arrears and overholding were the most frequent dispute types reported in 2021, accounting for 31 per cent of all complaints made that year. The second most common reason reported was deposit retention (19 per cent of cases), followed by validity of notice of termination (17 per cent of cases) and a breach of landlord obligations (17 per cent of cases). A breakdown of figures for 2022 is awaited.

Overholding

The issue of overholding frequently results from a fear of becoming homeless, according to the evidence provided by tenants during the tribunals.

In another case, heard by the tribunal in March, the tenant’s representative said they were making “every effort to find new accommodation and getting in contact with the correct people but that it had not yet succeeded”.

The landlord in the same case said he required the dwelling for his own needs. His children shared a bedroom with him following the breakdown of his marriage, he said, and he had difficulties in terms of mortgage arrears.

In Mayo, a tenant who lived in a rented home with her three children said if she was evicted she and her family would be homeless. She told the tribunal in February that she was doing her best and was not overholding deliberately.

In April 2022, a couple renting a Dublin home, who had been served a notice of termination, told the tribunal they were in the process of purchasing their own house.

They had paid a deposit for the property in February 2021, but “due to the imposition of Covid restrictions, labour shortages and supply issues the construction of the house was delayed” but would be completed in about three months.

The tenant said “due to the current housing crisis, when they received the notice of termination, their options were limited and they had to choose between being homeless or overholding”.

The couple wanted to move out, he said, but “they were in an impossible situation, and it was difficult to find a short-term solution to their problem”.

Sources working in the sector said while overholding is a common dispute type brought to the RTB, it can sometimes be agreed between parties that it is beneficial to take this course of action.

In some cases, landlords bring the case to the RTB “out of kindness” as tenants require a determination order to get on various housing support lists, such as social housing or homeless lists, legal sources said.

Meanwhile, other tenants stated they accepted and moved into dwellings with insufficient heating, mould or damp, as they had been homeless and just wanted a roof over their heads. sources working in the sector said. Later, these issues became bigger, resulting in some of them having to take a case to the RTB, complaining that their landlords had breached their obligations.

Mould and damp were common issues raised by tenants to the tribunal, with at least 17 and nine complaints respectively relating to these concerns. Heating problems also featured regularly, as did broken or damaged furniture or appliances.

Ann-Marie O’Reilly, national advocacy manager at Threshold, a charity advocating for rental rights, said it can be quite difficult for a renter to go to a landlord asking for repairs. Heating and boiler repairs are common issues that arise, she added.

“There’s a bit of a sense among people who just want to keep their head down. What happens is people don’t say anything and they put up with things that are not okay,” she said, attributing this to the shortage of alternative accommodation options.

However, these problems can then worsen as they’ve been left untreated, resulting in a bigger dispute between the two parties.

Mary Conway, chairwoman of the Irish Property Owners’ Association, said the current legislation and tax on rental income are the reasons behind landlords leaving the sector

Many tenants taking appeals were immigrants, the analysis of the tribunal filings show.

Ms O’Reilly said there is potential for migrants to be more vulnerable in this regard, as they may not understand their rights under tenancy laws.

“Maybe they’re more likely to challenge things or they don’t have a choice. While it is very difficult to find alternative accommodation for everyone, if you’re not from here and maybe don’t have family or friends with their ear to the ground, maybe you’re left with no choice but to challenge things and hold on to what you have,” she added.

One significant change in recent years, Ms O’Reilly said, is the number of cases in which a notice of termination is served because of a landlord’s intention to sell the property.

Previously, she said, a lot of these notices would have been deemed invalid. Now, however, the majority of landlords who issue a notice for this reason are found to have a genuine intention to sell.

This is reflected in RTB figures, which show 43,000 landlords left the private rental market over the past five years. Adding to this, a quarter of small landlords are likely or very likely to sell their rental properties in the next five years, according to research done by the board.

Tom Dunne, chairman of the RTB, recently told a meeting of the Oireachtas housing committee that this shift could be attributed to people who bought properties during the Celtic Tiger, rented them out when they upsized, but have now sold them on as they are no longer in negative equity.

However, Mary Conway, chairwoman of the Irish Property Owners’ Association, said the current legislation and tax on rental income are the reasons behind landlords leaving the sector.

“For the most part, tenants are absolutely fine. Generally, the reason is the legislation, the RTB and the tax and how long it takes to get in and get things sorted out with regards to overholding,” she said.

“Before you actually get to the RTB at all, it could be six months. So you’re already down six months [rent payments] at that stage. I don’t think tenants want to default on their rent. People can fall on hardship.”

Under law, if rent arrears arise, a landlord must present the tenant with a written arrears warning notice of a minimum of 28 days. If the arrears are not being paid off during that time, a notice of termination can then be issued, equalling an additional 28 days.

If one of the parties decides to then take a case to the RTB, that results in things being delayed further.

The average processing time for an initial hearing of a complaint was 19.5 weeks in 2021, while the processing time for tribunals, the next step if the case is appealed, was 33.4 weeks.

A spokesman for the RTB said while the body “adapted speedily and implemented changes to processes to maintain services during the pandemic, the impact of Covid-19 inevitably created a backlog of cases”.

In 2022, the body has also seen an increase in the volume of applications for dispute resolution, the spokesman said, which will also have an impact on processing times.

Most small landlords, 94 per cent, are part-time and do not manage properties as their primary occupation, a 2022 survey by the RTB found. According to Ms Conway, this means margins are small, with many renting out the property only to cover their mortgage.

This creates difficult financial situations when tenants stop paying, she said, adding that mortgage arrears become a real concern.

Many tenants who fell into rent arrears and who appeared before a tenancy tribunal spoke about falling into financial hardship, with a significant proportion attributing this hardship to job losses during the Covid-19 pandemic.

The extent of arrears varied significantly, according to the tribunal reports. Some landlords were owed one month’s rent, while others had accumulated arrears in excess of €25,000. The highest level of arrears recorded in the reports was €60,000.

Ms Conway said 99.9 per cent of the time when a tribunal determines that a landlord is due the rent arrears, they do not receive it.

She said: “If they didn’t have the money to pay initially, where are they going to get it to backpay? Landlords tend to just accept the losses. How can they pay for it, if they don’t have it?”