Oireachtas Joint and Select Committees
Thursday, 22 November 2018
Joint Oireachtas Committee on Housing, Planning and Local Government
Residential Tenancies (Student Rents, Rights and Protections) Bill 2018: Discussion
At the request of the broadcasting and recording services, members and visitors in the Public Gallery are requested to ensure that for the duration of the meeting mobile telephones are turned off completely or switched to aeroplane, safe or flight mode, depending on the device. It is not sufficient to put telephones in silent mode as this will continue to cause interference with the broadcasting system. The purpose of the meeting is to engage in detailed scrutiny of the Residential Tenancies (Student Rents, Rights and Protections) Bill 2018. On behalf of the committee, I welcome Deputy Kathleen Funchion and Deputy Eoin Ó Broin, who is also a member of this committee, to our meeting.
I draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
I will be very brief, because this is short legislation. The intention behind the Bill is to clarify the standing of student-specific accommodation with respect to the powers of the Residential Tenancies Act 2004, with particular regard to the issues of rent reviews, rent pressure zones and access to dispute resolution at the Residential Tenancies Board, RTB.
Sinn Féin takes the view that student licences and private student accommodation are already covered under the 2004 Act. That view has been confirmed to the committee by the Residential Tenancies Board and the board repeated this view in its written submission today. We are not seeking to change the law, but to make it more explicit. Everybody will accept that there is a degree of confusion as to whether student-specific accommodation provided by private landlords or investors is covered in the 2004 Act.
The legislation was provoked by very substantial rent increases proposed by private student landlords in Galway and Dublin at the end of last term. Members will know, because we heard from the students at the time, that rents increased by between 18% and 24%. Our view was that an amendment to the Residential Tenancies Act 2004 was required to ensure that everybody was fully clear as to where these licences stood with respect to the legislation. People will be aware of the impact of very high rents on students. If a student is asked to pay rent of €1,000 a month over nine months, it could act as a significant barrier to his or her education. As we heard from the Union of Students in Ireland, USI, students are being forced out of education and prevented from taking their preferred option because of these charges.
I found the written submissions from the Departments of Housing, Planning and Local Government and Education and Skills a little disappointing. We can go through the detail with the relevant officials when they appear. However, I did not get a sense from the submissions that the Departments appreciated the urgent need to address this issue. Student rents were set at very high levels at the start of this term. Unless we rectify the matter now, this will happen again. This is, therefore, an urgent issue.
Another problem with the Departments' approach is that both submissions repeatedly state that the solution to the affordability crisis in student accommodation is supply. We know that supply in and of itself will not address the issue unless it is accompanied by some degree of affordability. That is a weakness.
The submission from the Residential Tenancies Board is very helpful. It confirms that licences are already covered under the legislation. However, there is a lack of clarity. The RTB submission also helpfully identifies two weaknesses in our Bill and, as its sponsors, it is important that we acknowledge that. Later today, the RTB will make the case that it would be helpful to have a definition of student-specific accommodation.
The Fianna Fáil Bill that was published around the same time as our Bill does that. It would be a helpful amendment to our Bill and it would be a good way of resolving the RTB's concern on our Bill. We would see such an amendment as friendly if and when we get to that on Committee Stage.
The other issue the RTB rightly raised is whether our Bill would have an unintended consequence of giving students access to Part 4 tenancy rights. That is not the intention of our Bill and that is not the current legal situation. We can tease this out with the RTB but with some advice from it we could make an appropriate amendment to our Bill to ensure the rights that students are looking for around rent reviews, rent pressure zones and dispute resolutions are the rights they would accrue and the Part 4 tenancy rights would not apply to licences because the whole purpose of licences is that they are shorter term. We would be more than happy to accept amendments on that.
The Minister is bringing forward a residential tenancies amendment Bill either before the end of this year or early next year. Many of us in this committee have indicated support for it in principle, subject to the detail, but it would be much more helpful if the Minister dealt with this issue in that Bill. Deputy Darragh O'Brien and myself have met with the Minister to encourage him to do that. If he does that in the Bill or by way of amendment on Committee and Report Stages, Sinn Féin would be more than happy to withdraw its Bill, but in the absence of the Minister bringing forward his own proposition, we would prefer if the committee would proceed with ours, if only to send a clear signal to the Minister that the view of this committee is that we need this issue clarified and resolved as a matter of urgency. However, if the Minister finds a way of resolving this in his legislation, we would fully support that and withdraw the Bill at whatever stage it is at in the Oireachtas process.
I will be brief because I know there is a packed agenda today and Deputy Ó Broin has covered a lot already.
We cannot underestimate the impact the housing crisis is having on students, particularly those from a rural area. My constituency is a mix of rural and urban areas and I am sure other members of the committee will have constituents in a similar situation. A student might work hard, get the points and get the college place but many students cannot take up their places because of the lack of accommodation and the issue of affordability. Many students even have to drop out after first year because they cannot manage the issues of the cost and quality of accommodation that they are expected to live in. Unfortunately, some 60% of students do not receive their deposit back. There is a myth out there that students are not the best tenants but that is unfair. Many students get lumped into that category and, therefore, there are issues around raising problems with landlords and getting back their deposit.
It might seem like a trivial thing to some people but students work part time, at weekends and during the summer just to get that deposit together and that can be the difference between them staying in college or not because the Student Universal Support Ireland, SUSI, grant has not been increased for the past ten years and that has an impact. We all know people who do not qualify for the SUSI grant and are struggling as it is, so it is important that it is clarified and that they have stronger rights in this area.
It is also a big issue for parents, particularly when they are sending their kids off to college for the first time or when they are leaving home for the first time. They need to have some sort of reassurance. We talk a lot about the housing crisis in this institution and we also talk a lot about mental health and the well-being of students and young people. This is a small issue but it can help with the quality of accommodation, students having their rights respected and being able to access education. It is not fair that just because a student is from a rural area that might be a three hour drive from Dublin that he or she might not have the same opportunity as somebody else.
I thank Deputies Ó Broin and Funchion for coming in and for doing the work they have done on this.
Deputy Ó Broin spoke about the submissions and I was disappointed with the submissions that I read. The USI was the best submission of all of them, followed by the RTB but there was no great sense of understanding of the whole thing and what was really interesting was USI's point about overseas students. I have no difficulty with overseas students and I see the benefits of it for our economy and everything but I am familiar with a particular international language school that has many hundreds of students here in Dublin and they are at a higher level because they are postgraduates, they are sponsored by professional companies and they speak better English than most people who speak English but they are here with a lot of money and staying for a year and they are occupying a lot of student accommodation. There are great benefits from that too and I am all for the free movement of people across the European Union and everywhere else but there is no great sense from all of these reports how urgent the situation is. The other side of it is that we have students sleeping in cars, sharing beds and popping up for two or three days and we have students who are literally trying to sleep on the edges of campuses and that is the reality of it. That does not help someone to get on with their academic achievements. There is a major crisis.
USI had a really good and informative submission which touched on some of those key issues around the vulnerability of students who simply do not have the money to provide accommodation and yet have a yearning for learning and want to pursue their academic careers. There is a crisis here but I do not get any sense of that from the two other presentations that we had.
Well done on the work. It is great and it is worthy of support.
Deputy Ó Broin knows that we are fully supportive of this Bill. It is disappointing that when we introduced our Bill on this, the Minister gave a strong commitment that he would act on it immediately and we are still here today without a Bill from the Minister.
There is consensus in the House that at the end of the day if the Government introduces a Bill it is more likely to get through whereas our Bill will just get stockpiled with the rest of the Bills. It is disappointing that the Minister has not done something in this area and brought forward the legislation that he promised us at that time. Deputy Ó Broin has this Bill and we all want to work for the common good to resolve this ongoing problem for the students.
We will support Deputies Ó Broin and Funchion's Bill as Deputy Ó Broin supported ours. The Minister equally indicated that he supported our Bill but we realistically need the Government to come forward with a Bill, which will more than likely get through. We will work with the Government on that Bill and as Deputy Ó Broin has offered to drop his Bill, Deputy Darragh O'Brien has offered to do the same if it includes what we need for student accommodation.
We will support this Bill. There are many important significant changes being proposed but I have one question. The USI submission says the following:
Places like Trinity Hall, owned and operated by a university, are already excluded from the act. It is not clear how this would square with the provisions of the bill which state that a tenancy will include a licence in student specific accommodation.
Could Deputies Ó Broin and Funchion comment on that?
I welcome any debate on this issue. Where a student lives can be an issue. Students have very long commutes. We met some students recently in another committee that I am on and they are travelling extremely long distances, they have a very low income and it is very difficult for them to live or study.
I do not disagree with anything that is being said here but the Government should use more imaginative proposals to assist people who wish to offer accommodation to students. I know about the tax relief that is offered to them and I stand to be corrected on this point but a single individual can rent out a room to students. We should increase this resource to make it more available to couples or even families who live near or adjacent to universities so that they could offer accommodation. In many cases, older people would benefit greatly from the social aspect of having somebody staying in their home. It is attractive for certain individuals at the moment but maybe we could make it more attractive using tax incentives.
The other issue that is probably slightly more difficult is that there used to be a condition in local authorities years ago in respect of people applying for a home and whether an extension could be built onto their own home that would meet their needs. Could we build on that principle? Is it a possibility that we could encourage householders to build on extra accommodation in their home if they are in a zone that is adjacent to a university or a third level institution?
They could then enter an agreement with that university or with the appropriate body for a tenure agreement or whatever it might be. The State could help fund that accommodation, which would also meet the needs of students or people who would benefit greatly from living and having accommodation adjacent to the university.
I will also make a couple of points. This is a very proactive committee which has worked very well with the Department in arriving at solutions, although we do not always agree with it. We have participated in many of the actions that have enabled fast-track planning permissions for student accommodation. When we look at the figures for student accommodation coming on-stream this year, next year and in 2020, we are definitely on target. When legislation comes before us, we must ensure it will withstand a challenge. Deputy Ó Broin has recognised that certain definitions require clarification and the Government must have these definitions before it can present a Bill to the committee. I respect that the Deputy has agreed to withdraw his Bill if a Government Bill is introduced and that he will work with that legislation, as he always does.
Many of us have met various student groups. Only recently, I met a group of students in UCD. I fully recognise the burden, stress and financial fear they are experiencing. While we must act as quickly as possible on this issue, it must be in the knowledge that anything we do could be legally challenged and has to stand the test of time. This will take time to tease through. Nevertheless, I welcome the Deputy's Bill and hope we can stick to scrutinising it and everything it encompasses, rather than moving into other areas.
Deputy Barry sought clarification on one issue.
There are about 33,000 units of student-specific accommodation in the State at the moment. Some 11,000 of those are on-campus or run by education institutions and about 20,000 are private. Our view is that we cannot have a scenario in which one set of tenancy rights applies to one group of students and not to another group. Our preference is that all student-specific accommodation is included in that sense. That would require a change because the Residential Tenancies Act specifically excludes higher education institution student-specific accommodation.
It is also important to note that the Government, in its student accommodation strategy, proposes to increase the number of student-specific accommodation units from 33,000 to 75,000 by 2024. Even if those targets are met, the shortfall between supply and demand will remain the same, at in or around 20,000. There is a shortfall of 21,000 bed spaces now and at the end of this strategy, if all the targets are met, there will be a shortfall of 20,000 bed spaces. Even if the targets are met, there will still be pressure on prices.
Coming back to Senator Boyhan's point, one of the big difficulties is that the bulk of the student-specific accommodation being built, particularly in Dublin, Galway, Limerick and Cork, is being funded by private investment firms with a very specific business model. They avail of very generous tax reliefs which are not available to universities or others. Their business model is to build high-end, high-price, student-specific accommodation to target either the international student market or those who have the means to afford very expensive accommodation. It is not enough just to say we need the supply because if supply is not provided at a price that students can genuinely afford, particularly those from families with average and modest incomes, there is a problem.
Our preference is that all student-specific accommodation would be included. For this reason, the clarifying amendment from Fianna Fáil would be helpful. We do not seek to rush this legislation through. We proposed the Bill some time ago and in fairness to the Minister he met us. The delay in his legislation is not connected with this issue but with other issues. The sooner we have a resolution to those, the better. We will be as co-operative as we can with the Department and the Minister, as I am sure other members will be also.
If there are no further questions, I thank our witnesses who will stay for the rest of the meeting. I propose to suspend for a couple of minutes to allow the second group of witnesses to take their seats.
We will resume our detailed scrutiny of the Residential Tenancies (Student Rents, Rights and Protections) Bill 2018. On behalf of the committee, I welcome from the Department of Housing, Planning and Local Government, Mr. Paul Dunne and Mr. Andrew Harkin, and from the Department of Education and Skills, Ms Donna Maguire, Ms Trudy Duffy and Mr. Philip Crosby.
Before we start, I draw witnesses' attention to the fact that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
We will go straight into the questions with Deputy Ó Broin.
I thank the officials for their presentations and presence. I will make a number of introductory comments before asking my questions. The intention behind the Bill relates to a concern shared by all committee members, namely, that student rents, particularly in the purpose-built private sector, are rising too rapidly. Many of us share the view expressed by the Residential Tenancies Board, RTB, in a written submission to us that student licences, certainly in purpose-built private student accommodation, are already covered under many provisions of the Residential Tenancies Act, particularly in terms of rent reviews, the rent pressure zones and dispute resolution. Therefore, we are not necessarily trying to change the law, but clarifying it to ensure that all students have those protections. We are mindful not to, for example, confuse matters by extending to student licences the entitlements of a Part 4 tenancy. We, the sponsors of the Bill, mentioned our willingness to make amendments to address that issue, but our preference is for the Minister to introduce amendments to the upcoming residential tenancies (amendment) Bill. If he does so, we have stated on the record that we will withdraw our Bill, as that would be the most effective way to proceed.
I have a number of concerns with the two submissions. For example, the Department of Housing, Planning and Local Government is of the view that the most effective way of limiting the cost of purpose-built student accommodation generally is to increase supply.
Many of us have been arguing for a long time that supply increases alone will not guarantee affordability without adequate protections, such as the rent-review mechanisms. We have already seen a very significant increase in private sector supply, but we are also seeing very significant increases particularly in areas of high demand such as Dublin and Galway. On the targets in the student accommodation strategy, we have a shortfall of 21,000 beds in the system. By 2024 if all the targets in that strategy are met, we will still have a shortfall of about 20,900 bed spaces at that point. Therefore the demand-supply problem will not be resolved even though the targets are ambitious and we will significantly increase supply. Unless we deal with affordability now, we could have this problem throughout the timespan of that strategy.
The Department's submission refers to striking a balance between regulating prices in the market and providing certainty for students, but without creating disincentives for investment. That balance has already been broken with students being asked to pay in many instances €800, €900 or €1,000 a month. In spite of the protection of the rent-pressure zones, landlords can hit students with rent increases of 18% to 24%. My concern is that that line in the Department of Education and Skills submission suggests it does not fully understand the extent to which that balance has been broken for a significant number of students. We will hear later from USI about the very negative impact it is having on students' ability to take up the courses they are offered or the very significant additional stress it places on them as a result of having long commutes to and from college, particularly for students from rural areas.
Do both Departments accept the view in the Residential Tenancies Board's submission today that student licences in private student-specific accommodation are already covered by rent-review, rent-pressure-zone and dispute-resolution legislation? Can the officials reassure us that they appreciate the urgency of it and that work is going on behind the scenes? Do officials from both Departments intend to assist the Minister to introduce his own wording to amend the Residential Tenancies (Student Rents, Rights and Protections) Bill to deal with the issue?
I have a question from Mr. Crosby. I read his statement and welcome that the Department of Education and Skills is open to extending some of the protections, improving quality standards and allowing students access to dispute resolution. However, allowing students access to dispute resolution is of little value to students who cannot get into accommodation in the first place, which is increasingly the case for many of the students who cannot afford the prices they are being quoted by the student-accommodation providers.
A new student-accommodation centre a little over a mile away from here opened in the autumn. It is charging €249 for a single room en suitewith shared kitchen. It is charging €349 for a studio. In Cork city a new student accommodation provider based a few hundred yards from University College Cork is charging €215 for its cheapest room and prices are higher for many of the other rooms.
These days it costs students €1,000 a month for many of these accommodation centres. It is unaffordable for students from working-class homes and for most students from ordinary middle-class homes. Increasingly people from very affluent and well to do backgrounds and some of the international students seem to be taking the places.
In his opening statement, Mr. Crosby said a balance had to be struck between prices and certainty for students on the one hand on the other hand being careful not to provide a disincentive for student accommodation providers. He also referred to legal requirements, which we can discuss further in the meeting. What are the legal requirements which provide an obstacle, presumably, to cutting these prices? There is no balance. Where is the balance between the rights of a multinational global corporation which is a major player in the international property scene charging €1,000 in rent and the rights of a student who needs a roof over their head when they come to Dublin or Cork city to study? Does he not accept there is a gross imbalance in that situation?
The rents need to be cut - not trimmed, but slashed - to make these places affordable. If that means a disincentive - in other words that the student-accommodation providers go elsewhere in order to maximise profits - does it not put us back to square one with the issue we need to face in the first place which is that we need public investment to assist the institutes of higher education to provide public affordable accommodation for students on campus?
Mr. Paul Dunne:
Deputy Ó Broin said that our statement stated supply was the best way. We are not ignoring the elephant in the room. That is a long-term goal. We agree that there is a problem. We have recognised it previously. He has introduced the Residential Tenancies (Student Rents, Rights and Protections) Bill and Fianna Fáil also has a Bill. I believe the Minister is on the record as saying he recognises that problem and will deal with it. How will we deal with it? As the Deputy knows, we are working on a residential tenancies amendment Bill this year. We are also looking to table amendments to that Bill - probably on Committee Stage - to cater specifically for student accommodation.
I do not underestimate the difficulty. As the Deputy knows more than anyone, the Residential Tenancies Act is complex integrated legislation. We know what our intent is; we just need to ensure we get there. As the Deputy knows, we have things such as the disapplication of Part 4 in terms of termination of notice timeframes and all that. It does not apply where a tenancy is only for eight months. We are doing this detailed analysis and we are working on drafting the heads of Bill. It is our intention to bring it forward, subject to the Minister's permission.
The Deputy also mentioned the tricky subject of students with licences and the RTB-----
Mr. Paul Dunne:
The Deputy mentioned the RTB submission and its contention that the licence of student accommodation is covered in the Residential Tenancies Act. I am not 100% sure that it is. It has to be tested. It might be called a licence, but in operation it operates as a tenancy. The best approach is to ensure that there is no doubt that student is covered either by licence or tenancy. In doing that we would have to cover publicly and privately provided accommodation so that we do not treat students differently. We are proposing some amendments to the Residential Tenancies Act to address that.
The Department recognises the Deputy's intent, as does the Government. We are on board with it and are working with it. We hope to publish the residential tenancies amendment Bill this session and introduce amendments for student accommodation as we go through the process.
Mr. Philip Crosby:
I will try to approach the questions in the sequence in which they were asked. I apologise if I miss anything. If I do, the members might raise it again.
I do not believe there was a suggestion in my opening statement that a balance needs to be maintained. We are saying that a balance needs to be struck. In the measures being introduced by us, there is a need to ensure a balance. It is important to clarify that this is what the provision meant.
My next point probably segues into the other question we were asked on the point of controls if students do not have access to accommodation. In referring to striking a balance, I am speaking very much from the perspective of my Department and Minister, and based on our concern for the students. If measures are put in place that disincentivise supply significantly, there will be no supply. If there is no supply and if accommodation is not built in the first place, students will not have access to accommodation, whether it is affordable. From that point of view, our objectives are to maximise supply and achieve rent predictability in a balanced way.
There was a question on legal requirements in this regard. As Mr. Dunne stated, people are well aware that the Residential Tenancies Act is complex. I do not characterise the legal requirements we are referring to as obstacles per se. First, the issue is that the legislation is complex, and sections of it tend to relate to each other. We need to work through the issues together and in consultation with the Attorney General to make sure the law we bring forward is sensible. In doing what we do, we have to have regard to the law as it stands and the Constitution. This is a matter in which my colleagues in the Department of Housing, Planning and Local Government have expertise. We have to make sure that what we do will withstand legal challenge.
I missed out on the point on the RTB submission. I have to admit that I am not familiar with its content. If our understanding is open to challenge, it is open to challenge. Our understanding is that where purpose-built student accommodation is definitively under licence, it is effectively not under tenancy. If it is under tenancy, it has the full range of protections and full access to dispute resolution and so on. Mr. Dunne has touched on this. Our objective is to ensure RPZ protection, rent predictability and access to dispute-resolution mechanisms for students, and to ensure they have access to affordable accommodation in the first place.
On the question of public and private investment, the most recent update we have on the implementation of the national student accommodation strategy and the provision of purpose-built student accommodation shows there is a significant tilt towards private or commercial sector provision in the current development pipeline. Between what is complete on site and plans approved, the figure for the public side, which is effectively the higher education institutions, is of the order of 3,500 or 3,600. The figure for the preplanning work being done by the public side - again the higher education institutes - is approximately double that, amounting to approximately 7,000. As well as trying to make sure there is private and commercial investment, an effort is being made in this area. Issues that arise are the capacity of universities to put measures in place and the capacity of institutes of technology and how they might be assisted. All these issues are also associated with the policy side of what we do. It is, therefore, not just a simple matter of saying we believe there is a balance in place and that this is the only measure. As Mr. Dunne said, this is not a matter one deals with quickly. Equalising supply and demand is a more long-term objective. In the meantime, there are measures to be taken. We would not want it believed that this is the only thing being done.
If I have missed any point, I can pick up on it again. I believe I have covered all the questions.
One of the submissions referred to how housing constitutes a barrier to access to education and staying in education. We all know about this. I know of so many commuting students who ended up dropping out. It is impossible to study, commute and try to pay for everything. We all know the stories. I acknowledge some positive points were made on the RTB and on the complexity of the legislation. In the short term, however, we want our Bill to go through. The Department has its issues with it. Deputy Ó Broin made the point this morning that we are willing to work with the Minister and Department to ascertain what amendments can be made, or whether they can come up with something that would allow us to withdraw our Bill. In the short term, what can be offered to students who are currently in college or individuals looking at the footage from today saying they had to drop out or students who are starting college next September? I acknowledge what was said about purpose-built student accommodation but it will be at least two years before it is provided. It will not be in every area, nor will it meet all the demand. There has not been no increase in the grants, for which so many do not qualify. This is an issue I encounter. I refer, in particular, to the circumstances of those with a number of children in college who do not get any financial support whatsoever. What short-term accommodation solutions are there for students seeking to start college next September?
Everything Mr. Dunne said is incredibly encouraging. If the amendments on Committee Stage of the Minister's Bill are the route to go, we will have no difficulty, subject to our seeing the detail. That the Department is giving a commitment that there will be equality between students in the public and private sectors is welcome. My party and a number of others have made clear that while we want to make sure that legislation is scrutinised properly, we do not want to do anything to delay it. We are keen as a committee to work with the officials to get the Bill, in the round, through as fast as possible and without necessarily undermining our right to scrutinise it.
I have two questions for the officials from the Department of Education and Skills. With regard to the construction and planning pipeline, could they give us a breakdown on the ratio between public and private? There is currently a ratio of approximately 2:1. For every public bed space in student-specific accommodation, approximately two are private. Is this ratio been replicated in the overall pipeline at the minute or is there any balancing thereof?
I ask to be corrected if I am wrong in contending there are restrictions on the borrowing of institutes of technology. They are keen to try to see some way through that. An example concerns some of the smaller institutes of technology, which face particular accommodation bottlenecks. Could I have an update on what is happening with respect to that?
Mr. Paul Dunne:
I welcome the comments and the appreciation of our efforts.
With regard to barriers to access, it is difficult to see what can be done in the short term. The important point is to try to provide for Committee Stage amendment as soon as possible, get the Bill through and provide the student accommodation, subject to the criteria associated with RPZs and the rent controls.
Mr. Crosby might be better placed to talk about the supply pipeline.
Mr. Philip Crosby:
I shall deal with the supply pipeline first, and then the institutes of technology. With regard to what is being done in respect of the national student accommodation strategy, I shall give rounded figures on completions to date. The total was 5,500, of which just short of 1,100 were public. There are 4,800 on site. Just short of 1,200 of these are public. With regard to plans approved, there are 7,900, of which 1,400 are public. These are rounded figures but we can give the detail if the committee wishes. I am referring to a published report.
Approximately 400 or 500 projects in the private sector are planned and submitted but awaiting an outcome. There are slightly more than 7,000 at pre-planning stage in the public sector, but we do not have pre-planning figures for the private sector as it is not accountable to us in that regard.
Borrowing capacity relates to an issue involving organisations which are not represented today. The borrowing capacity of public institutions may add to the Government's borrowing requirement and debt loading, which is subject to fiscal space and the fiscal rules and our post-crisis relationship with the European Union. It does not only affect institutes of technology as it also arises in the context of the creation of the new technological universities. It is under review, with one of the critical considerations being the difficulties that may be caused for the Government, the Department of Finance and so on by anything that adds to the debt figures or borrowing requirement.
I appreciate that completely. It is a budgetary matter for the Government. Apart from the impact of the fiscal rules, is there an additional barrier to the institutes of technology making proposals to borrow, as opposed to the universities which can at least make such proposals and try to pursue them with the Department? If there is, what has been done to remove it?
The committee would appreciate if Mr. Crosby could forward to it that information on the numbers. There is consensus on the committee and in Fianna Fáil and Sinn Féin that we want to assist on this issue rather than create obstacles. Both parties have clearly put on the record that if the Government brings forward suitable amendments to the Bill, they will drop their Bills dealing with this issue. I wish to make clear that we are here to work with the Government. I hope that the amendments will be provided to us as soon as possible in order for us to begin progressing the Bill through the House.
I thank the witnesses for their attendance and engagement with the committee.
In our third session, we resume detailed scrutiny of the Residential Tenancies (Student rents, rights and protections) Bill 2018. On behalf of the committee, I welcome Ms Lorna Fitzpatrick and Ms Michelle Byrne from the Union of Students in Ireland, USI. I draw their attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
I call Ms Byrne to make her opening statement.
Ms Michelle Byrne:
The USI represents 374,000 students across Ireland. We wish to clearly indicate our support for the Bill and thank its proposers, Deputies Ó Broin and Funchion. We support the imperative of giving students living in student-specific accommodation under licence the full protections of the Residential Tenancies Acts, including access to the TB and inclusion in RPZs.
On the night of the census in 2016, there were 429 homeless students in Ireland, comprising more than 8% of the total homeless number that night. When the Government’s student accommodation strategy was launched in July 2017, the excess demand for purpose-built student accommodation was more than 23,000 beds. That is expected to increase to almost 26,000 by 2019, which means that even if all projected purpose-built student accommodation is successfully completed, we will still be short 16,000 beds.
Casting an eye over Dublin inner city, one would be forgiven for thinking that student accommodation sufficient to meet the need is being built. However, there has been a 2% increase in student numbers each year for the past decade and that growth is expected to continue for the next decade. The Government has not built enough student accommodation to cover the increase, let alone addressing the existing shortage. The housing system is buckling under the pressure and becoming a significant barrier to accessing education. According to a DIT student life survey, the estimated cost of living per annum while studying at third level is €12,495, including fees of €3,000, which are the second highest in Europe. Grant rates were massively cut in budget 2012 and have not been adequately restored, in particular for postgraduate students.
Three key issues in regard to purpose-built student accommodation are cost and lack of affordability, the lack of RPZs governing increases and the lack of tenant rights. Much new student accommodation is built as purpose-built student accommodation by Irish and global property investors, but the rents being charged are often unaffordable for the average student. In our experience, such accommodation is predominantly targeted at international students, who usually pay higher fees and are thus attractive for underfunded colleges. This new supply will not relieve the student accommodation crisis. This form of accommodation and the large profits being made from it by real estate investors are being subsidised and encouraged by Government policy that allows investors to pay little tax. Furthermore, they do not have a Part V social housing obligation and the units are far smaller than normal apartment regulation size. Importantly, the new units are exempt from the rent cap and allow a higher market rent which embeds permanent unaffordability into Irish student accommodation. This shows that current Government policy has a strong influence in supporting speculative and unaffordable housing provision. The purpose-built student accommodation currently under construction may include cinemas, bowling alleys and games rooms that are unnecessary for students who face high education costs.
Students in purpose-built student accommodation are treated as licensees rather than tenants and do not have the same rights. Purpose-built student accommodation in RPZs does not fall under the Planning and Development (Housing) and Residential Tenancies Act 2016. This summer, there were rent increases of up to 18% in Galway, affecting NUIG students among others, and 27% in Dublin, affecting DCU students among others. The inclusion of student accommodation in RPZs is the least that should be considered. Students are sleeping in cars, staying late in the library and couch surfing with a friend or commuting for hours to get to lectures, all of which affect their ability to get a decent education. The system is perpetuating and worsening educational inequality because many students who are considering going to college will not pursue their first-choice courses in places such Dublin, Cork or Galway because of the cost of accommodation in urban areas.
In effect, this is reducing the social capital of upcoming generations.
It is important to note that the Bill at hand applies to some "student specific accommodation" but may not apply to all of it. The Residential Tenancies Act, at section 3(1)(c), states that the Act does not apply to accommodation let "by or to" a public authority. At section 4(1), a public authority is defined as, among other things, "a recognised educational institution, namely, any university, technical college, regional technical college, secondary or technical college or other institution or body of persons approved of, for the purpose of providing an approved course of study, by the Minister for Education." In short, places such as Trinity Hall, owned and operated by a university, are already excluded from the Act. It is not clear how this would square with the provisions of the Bill, which state that a tenancy will include a licence in student-specific accommodation. Residents of Trinity Hall are under a licence and it is clearly student-specific accommodation but it is excluded by another section of the Act.
It would be important to clear up this aspect before the Bill proceeds further. USI would support bringing halls under the remit of the act, as it would be unfair that students in these residences should be treated differently by virtue of renting from a university rather than a private landlord. There has been an 11.3% increase on the average asking rent in 2018 up to September and it is already clear that the rent pressure zone concept is failing new entrants to the market. Rent pressure zones do not fully function as intended but the increases therein are still substantially less than the 27% increases we saw in student accommodation near DCU.
Purpose-built student accommodation is the most preferred option for students according to the USI housing survey. However, the opportunity to build is hindered due to institutes of technology being unable to borrow to build student accommodation. USI has called on the Government to provide capital grants for higher education institutes to specifically build accommodation and lobbied for this to happen in budget 2019.
Over one in five of respondents to our 2017 survey experienced unexpected increases in rent before or shortly after moving in or outside of the allowed or agreed period. A quarter of all respondents had a dispute with their accommodation provider, out of which the majority were in purpose-built student accommodation and privately rented accommodation. Of those who experienced conflict, 17% sought professional help. Most frequently, students looking for assistance turned to their local student union or Threshold. Of the students in purpose-built student accommodation, 70% have a signed lease agreement.
Unless there is a radical change in the direction of housing policy, this crisis is going to continue to deepen and worsen but many solutions exist. They are outlined by the new broad civil society alliance, the Raise the Roof campaign and the national housing and homeless coalition. They were detailed in the Opposition motion passed by a majority of Deputies in the Dáil. The housing crisis has reached the point where the Union of Students in Ireland is leading with housing charities, trades unions and other civil society groups in calling for change. Students are frustrated but it is more than that. This is affecting their access to education and their success even within that system. Next September and August will be even worse for accommodation and we all know it. Students will then have to go into the private rental sector when we qualify; we are the generation rent who will suffer significantly later in this crisis. However, we do not intend to accept the current situation, one without adequate rights, rent caps and rent pressure zones. We will continue to campaign for the right to affordable and adequate housing for students and for a housing system that will ensure we can have affordable secure housing for our lives.
I thank Ms Byrne for her presentation. I start by acknowledging the very important role the USI and its constituent members have been playing, both in forcing this matter on to the political agenda here and with the various protests in north County Dublin and Galway, which spurred many of us into action. It has played a very important role in the housing and homeless coalition and Raise the Roof, making a significant contribution to the mobilisation on 3 October.
To respond to the question, the intention of the Bill is to see the protections of the Residential Tenancies Act applying to all students in all student-specific accommodation, both public and private. We made it clear in the session earlier today that we are quite happy to work with other Members to amend the legislation if required.
Perhaps I have some good news. Representatives from the Department of Housing, Planning and Local Government, who were here before our guests, have confirmed that they are working on amendments to the Bill to be introduced by the Minister to do exactly what we have been asking of him since those protests first arose earlier this year. They are seeking to bring those amendments on Committee Stage of the Minister's Bill, which we are told is to be published this year and come to committee early next year. They also confirmed they are seeking amendments to apply to both halls and the private sector, which is very positive.
I do not really have any questions as the presentation sums it up for all of us. The witnesses will hear from other members but this committee is acutely aware of the difficulties this crisis is placing on students. We are 100% behind what they are seeking. We have said clearly to the Government that if it is faster for us to support its legislation, we are happy to withdraw our Bill, but we are not willing to withdraw it until we see what is proposed by the Government. It is certainly Sinn Féin's desire - I hope I have the support of the committee - to continue to press ahead with this Bill as amended by other members of the committee to reflect the work they have done on the issue until we see something from the Government. We will consult the witnesses when we see what the Government is proposing and if it does the job, we will switch to supporting that Bill because the process would be quicker. There is a desire for greater urgency on behalf of the Government and the Departments involved so we would like to see that reflected in the speed with which they bring amendments.
I congratulate the delegation. We will continue to work with the witnesses to achieve these objectives.
I welcome our guests. I will not make a big speech but rather I have one or two points and a couple of questions. Maybe there can be a bit of back-and-forth. On 3 October, I was really struck by the number of students participating in the protest. If there were 10,000 people there that day, I would bet my right arm that at least half were students. They were pouring off buses from around the country. Students were there not for a day out but rather to make a very serious point about how the housing crisis is touching their lives on a daily basis. It is not as easy to get out on a Saturday as it is on a college day but I am confident there will be a strong representation of students from the colleges at the next protest to keep the pressure on the Government. It is on Saturday, 1 December.
There is much strong information in the report but there is one striking figure. On the night of the census in 2016, 8% of all people who listed themselves as being homeless in the State were students. That is nearly one in ten people. Ms Byrne has spoken about the phenomenon of students going to classes during the day, staying in libraries late and night before staying in a car at night and continuing studies the next day. Is she in a position to give the committee some more information about that? Is it continuing to happen and, if so, where is it happening? What impact is that having on students? How many people are in that position? I am sure she does not have an exact figure but perhaps she has a broad idea, which might be helpful.
I received a report about a public meeting held recently in Maynooth dealing with the establishment of a housing action group. There were people there from the town but there were many students there also. There were more than 60 people at a meeting on a weeknight. For those of us who are educating, agitating and organising public meetings on a regular basis, having more than 60 people at a public meeting tells us something is going on. I was not at the meeting but I understand that one of the points emerging from the discussion was another phenomenon. Landlords may have a house with three or four bedrooms but partitions start coming out near the start of term and the house would be subdivided. One room becomes two or three rooms. Instead of having three or four students in the house paying rent, there could be nine, ten, 11 or 12 students staying in little cubicles in partitioned rooms. I know of cases in Cork city with students being asked for €400 per month to cover such an arrangement where they are packed in like sardines.
Do the representatives from the USI have any information, even anecdotal, about that happening, how widespread it is or any facts and figures? If that could be shared with the committee it would shine a light on the reality on the ground?
I do not have many questions. I welcome that the USI is supportive of the Bill. Its representatives are preaching to the converted in terms of all the stuff they are saying about students. We know of many situations of people struggling to stay in college. If they end up dropping out, fees the following year are an issue if they did not complete their first year.
I will take the opportunity to ask one question. I know about the SUSI grant. With regard to the additional financial supports from colleges and universities, are there criteria attached to them? It is a little bit off topic. The funding seems to be allocated on an ad hocbasis. It seems that students have to first qualify for a grant to be eligible. Many people fall outside of the criteria and do not get anything. Could the witnesses shed any light on that? Are they aware of any criteria? It is something I am interested in following up.Perhaps I could follow up separately if the witnesses do not have the information today.
Ms Byrne probably has the information at hand. However, the purpose of the meeting is detailed scrutiny of the Residential Tenancies (Students Rents, Rights and Protections) Bill 2018. Will Ms Byrne respond to some of the questions?
Ms Michelle Byrne:
I thank the Deputies for their comments and questions. I will address Deputy Barry's question on the hidden homeless. Almost one in ten students were registered as homeless on the night of the census. We are seeing a lot of hidden homelessness in couch-surfing, for example, where people do not identify with the word "homeless". They see themselves as students attending college. They are commuting and couch-surfing. They do not register that they are part of the homelessness epidemic.
This week I was in a Cork college - we were running a piece about housing - and a student came up to me and said she was travelling from Dublin to Cork every day to complete her master's. It was not because she could not afford rent. She is paying rent in Dublin. She could not afford the rent she was asked to pay upfront for one term with a deposit on top of her fees, which would amount to €14,000 in September. That is the reality. They are the stories we hear every day. It is affecting academic performance. She told me that next year when her timetable changes, classes will not start at 12 o'clock anymore but at 9 o'clock. She knows already she will miss those classes because she cannot get from Dublin to Cork in time to attend them. That is how it affects academic performance.
With regard to housing standards and partitions, we are in a housing crisis and housing standards are not being adhered to in any way. Students are thankful they have their heads on beds and have roofs over their heads. They are desperate. They are not willing to challenge it. They cannot because they will be told if they do not like it they should get out because there is another person waiting. They are issues we see all the time. We recognise that the RTB got extra resources in budget 2019 and we hope we will be able to look at auditing houses like this and clamping down on the problems we see daily. I hope that gives Deputy Barry some insight.
I will comment on what Deputy Funchion said about additional resources to SUSI. There is the student assistance fund and the chaplaincy fund, which is given out on an ad hocbasis. I think the student assistance fund is the one the Deputy was referring to when she stated that students have to qualify for a grant first. It is done per institution. I have heard stories of certain guidelines where extra criteria have been added to cut waiting lists for the student assistance fund but it is not across the board. From my experience in Waterford Institute of Technology a number of years ago, it was not the case; anyone could apply for the student assistance fund regardless of their eligibility for the SUSI grant.
I thank Ms Byrne and Ms Cahill for appearing before the committee. It is nice to see Ms Byrne. I met her over two years ago. We also have a Dunlavin resident with us today. Deputy Ó Broin has submitted his Bill. Fianna Fáil has submitted its Bill. The Government has promised to have its Bill submitted by the end of the year. We have all agreed to withdraw our Bills to allow the Government Bill to proceed. Hopefully the combination of all three Bills will result in exactly what the committee has been looking for for a number of years. When the Bill is published we will engage with the witnesses again to ensure the issues they have raised are addressed by the Government's Bill. All we want is to work together and to deliver solutions. It is not about politics. I thank the witnesses for appearing before the committee.
In our fourth and last session today we resume detailed scrutiny of the Residential Tenancies (Student Rents, Rights and Protections) Bill 2018. On behalf of the committee, I welcome Ms Rosalind Carroll and Ms Janette Fogarty.
I draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.
Ms Rosalind Carroll:
I thank the Chair and the members of the committee for inviting the Residential Tenancies Board here today to discuss the Residential Tenancies (Student Rents, Rights and Protections) Bill. I am joined by my colleague, Janette Fogarty, head of enforcement and legal affairs.
This is a very difficult time for students and in the housing market as a whole, with issues around supply and affordability. There have been significant increases for students, which have caused worries for the students themselves and for their families who have to support them. It can also impact on their studies.
It is important to understand the current position in respect of the law. There can be misunderstandings and I do not want people to go away from this meeting thinking there are no rights for people. The Residential Tenancies Act applies where a tenancy is in place. This includes students renting from a private landlord, for example in a house share with other students or friends, and private, purpose-built student accommodation where a tenancy exists. We believe that this incorporates the majority of private purpose-built student accommodation. It does not cover student accommodation that is provided and managed by an educational institution which is a public authority, nor does it apply where people are renting through the rent-a-room scheme.
One of the main issues is that there is often confusion between licences and tenancies. Many accommodation agreements are called licence agreements, but in practice they are tenancies. Just because something is named as something does not mean that is what it is - it has to act as such in a material way. A licence can be defined as permission to enter or occupy a dwelling. It typically refers to a hotel, a hostel or a shared house. We have a number of disputes over the question of something being a licence as opposed to a tenancy and people tend to relate it to commercial law, whereas we talk about residential law, which is very different. Licences do not come within our remit and people who offer them are not required to register with us. In cases of licences, a dispute cannot be referred to us. However, there are very limited circumstances in which a licence can occur in the market. It is really important that students understand this and are encouraged to bring a case to the RTB for a determination on the matter. Unfortunately, not many have done so and we recognise that there is an information deficit in this area and some confusion in the market. When they have done this, however, students have proved that what they have is a tenancy agreement.
One of the key weaknesses at the moment, in the area of our registration powers, is that we cannot proactively enforce registrations of tenancies across the market. We do not have investigation powers but the Bill being put forward by the Department will give us those powers and will enable us to go out and question people as to what are those licence agreements or tenancy agreements. This is an important first step to enable us to test the law.
In respect of the Bill before us today, we support reform in this area, particularly given the increased student-specific accommodation that is coming down the line. However, we believe a lot of the law already covers what is in the Bill. It is about clarification and strengthening the law. We recognise that there is uncertainty and a lack of transparency and students often do not know whether they are licensees or tenants. We will work with the new legislation coming from the Department and we have worked closely with the Department on the issues in question. If this particular Bill is enacted, we would suggest some changes to strengthen it. In that respect, there are three points we would raise. The first is a definition of student-specific accommodation. Does it include a house share in which there are four students, as opposed to something that has been designed for students? Other properties are refurbished by private companies and used as student-specific accommodation. There are many nuances to this that would need to be sorted out to avoid grey areas. It is also important to have a definition of a student to clearly set out who qualifies.
We believe the issue of security of tenure also needs to be considered further. Under Part 4 of the Residential Tenancies Act, tenants get security of tenure rights after six months, which entitles them to a further five and a half years' occupation subject to specific grounds that allow a landlord to end a tenancy. A provision in section 25 of the Act means this does not apply to student-specific accommodation but it was specifically linked with section 50 accommodation, which was a revenue-supported tax scheme. This scheme has now gone so the provision no longer applies and the matter needs to be looked at again. Student-specific accommodation needs to remain within a nine-month term.
The third area comprises technical amendments which have to ability to trip us up as we try to implement the legislation.
One example of this is the issue of multiple occupancies. With most purpose-built student accommodation there might be six units within one self-contained unit. We believe that the legislation would benefit from clarification to say that this was six different tenancies and not one tenancy. Otherwise, in implementing rent pressure zone legislation we are dealing with a one-tenancy situation. This would cause a huge degree of confusion in implementation. These are some of the technical amendments that the Residential Tenancies Board believes warrant further consideration.
We welcome the forthcoming legislation from the Department and from this area, once the overall areas that we have just outlined are addressed. There is an opportunity for us to try to test this a little bit more in respect of the investigation powers we are getting. Ultimately, we want the law to work and to work well, and that we would take the time to consider all of these issues. I am aware that we are in an extremely pressurised environment, particularly for those people who are living in those accommodations. It is about trying to balance those two things. Perhaps we could take some consideration of these matters.
I thank Ms Carroll for her presentation. In our session earlier this morning, Deputy Funchion and I commented on how helpful Ms Carroll's submission was. First, it was helpful because we agree with the Residential Tenancies Board's interpretation of the Act as it applies to student accommodation licences in the private sector. It is also important for us because we take our role seriously in proposing alternative legislation. If the people at the front line are saying there are weaknesses in this that need to be addressed we must take those comments seriously. As the sponsors of the Bill we are more than open to ensure that if it comes to Committee Stage, we amend it as appropriate.
Our preferred option has always been for the Government to do this because it has a level of expertise in the drafting of this legislation, including better access to the Residential Tenancies Board and its advice. It would also mean that the legislation would happen because it would get through more quickly. Deputy Darragh O'Brien and I met the Minister, Deputy Eoghan Murphy, and made a clear commitment that were the Minister to bring forward his own Bill or amendments to his upcoming residential tenancies Bill that satisfied the intent of our proposals, then we would withdraw our proposal from the table and support the Minister's Bill. There was some very good news today when Paul Dunne from the Department said that this is precisely what they are doing. Mr. Dunne indicated his hope that the Government will be in a position to bring forward amendments on Committee Stage of that Bill to deal with what we want and which reflect all the concerns outlined by Ms Carroll. We expect this to take place in the first quarter of next year. While I was not expecting it, it was particularly welcome that the Department said it wants to ensure the legal clarification - which is what the Department called it - applies to all student-specific accommodation. This would mean the publicly-provided accommodation, as well as the private accommodation. This was certainly a very important development.
Our view remains that until such a time as we see their amendments we would like to continue to progress our Bill, as much as a pressure point as anything else to be honest. Ms Carroll's comments here today make sure that whatever we do - be it teasing out the Minister's amendments or some other form - we are better informed. I do not have any questions but would say that as the sponsors of the Bill, we fully accept the concerns Ms Carroll has raised. In whatever format it comes back to the committee, we will do our very best to address those in a way that makes her job much easier when the Residential Tenancies Board, RTB, is implementing this legislation later next year.
I am interested in exploring the issue that most students believe they do not have protections in respect of rent pressure zones, the right to take a case to the RTB and so on. I am hearing that in fact, many students and probably most students do have that right. Let us drill down into that a little bit. Ms Carroll mentioned that there have been a number of cases. From what she has said I get the impression that it is very few. I do not know if she has a specific number or a range. Can Ms Carroll say if there have been four cases, for example, or that there were somewhere between three and six cases? I would like to get an idea on that.
A student accommodation provider may be a big, global, corporate entity. I am thinking perhaps of an area in Cork, which is the area I represent. Some of the new student accommodation providers coming in there are charging more than €200 per week. Most of the students there are operating on the basis that they do not have the type of protections to which we have referred. In the case of a student who signs up for a 39-week agreement, which would be fairly typical for the college year, is Ms Carroll saying that such a student probably has the right to take a dispute before the RTB? Crucially, were the landlord or owner of the complex to turn around and increase the rent by 18%, which is an example we were given in Galway not so long ago or by 27%, which was noted on the north side of Dublin recently and were that student accommodation provider based in a rent pressure zone, would that provider have massively overstepped the mark? If that case was taken before the board, is it as likely as not that the accommodation provider would be told it had overstepped the mark and that any rent increase would have to be pegged back to 4%? I am not sure if I am getting this right and I ask Ms Carroll for clarification on those points.
Ms Rosalind Carroll:
The Deputy's first question is on how many cases. He is right in the sense that it is a handful but it is difficult for us to know because student accommodation is not a category when landlords register. It is difficult for us to identify cases. Given the recent history, say over the last six to 12 months, and with us trying to look at the issue, it is probably a new phenomenon. My sense is that the Deputy is correct that it is a handful of cases. As an organisation with responsibility for registration of tenancies, regardless of the student accommodation piece we have been in court a number of times about licences versus tenancies. Apart from the student accommodation piece, it is an issue about which we have been to court a number of times. We have a history of trying to prove-----
Ms Rosalind Carroll:
If someone comes along and claims that it is a licence agreement and we say that we think it is a tenancy agreement, we get proof and we go to court and we prove it. Currently, non-registration is a criminal offence and we would then prosecute that through the courts where we have proof. It sometimes is difficult for us to get that proof. That is the difficulty sometimes of having criminal legislation; it means that the person has the right to not incriminate themselves, and therefore we do not have investigative powers. The whole point of the new legislation coming in is that it is a civil sanction, which sometimes seems less but actually gives my organisation the power to go out and deal with issues more practically.
On the issue of trying to get to the Deputy's understanding of the protections afforded by RTB, I will try to explain and perhaps my colleague might also come in. With regard to licence agreements, many of these student accommodation providers - whether on purpose or not - will have deemed these to be licence agreements. Many of the providers might think genuinely that they are licence agreements. In our opinion, and it is only our opinion because a court would have to decide with us, in a lot of those cases it may be labelled as a licence agreement but in practice, a tenancy agreement is actually in place. It is the practice that matters. Where there is an uncertainty we want tenants to come to us. We can hear it as a jurisdiction matter in the first instance of a dispute being raised. It can come to us a dispute and we can hear whether the RTB has jurisdiction in the matter. We can then get into the whole issue of proving whether it is a tenancy or a licence agreement. We would be able to deal with it on an evidence-based format within that. If it is then found to be a tenancy agreement, we can deal with the second dispute or matter if there is an issue regarding rent, or something else. It could be about a deposit or landlord obligations around maintenance. Equally, it could be the landlord taking a case on rent arrears or another issue.
That is my understanding. Ms Fogarty, who is our head of legal affairs, is much more familiar with the technicalities in terms of licences and tenancies.
Ms Janette Fogarty:
As Ms Carroll stated, it is about examining the legalities of a licence agreement. What the courts will examine is substance over form. The legislation was brought forward to create tenancies, and people have certain rights within those tenancies. If, for instance, a licence is created to circumvent the creation of a tenancy, it is in fact a tenancy. The Residential Tenancies Board has the power to look behind the agreement to determine if it is a tenancy and to test the reasons the licence was created. As Ms Carroll said, we have not seen many cases tested and we believe it is an area open to interpretation. When we went before the courts, they examined the typical type of licence agreement that included certain aspects such as tenants not having exclusive occupation of the dwelling and questioned the reason for that. One is trying to circumvent the legislation so therefore, in essence, it is a tenancy. It is on that basis we would examine it. That is where our powers lie, and we would encourage people to take cases regarding that.
On the rent pressure zones the Deputy mentioned, once the case has been considered, and the RTB looks at the jurisdiction element, as Ms Carroll mentioned, they can investigate where the person is paying rent over and above that outlined in the rent pressure zone measure. There are powers in legislation for our panel members - our decision makers - to seek to have the rent paid back, and we have seen cases where that has been done. If people believe their rights or obligations are affected, they need to bring cases to the Residential Tenancies Board to ensure they are protected.
I have some brief supplementary questions. This is very interesting. There has been a handful of cases. It is difficult to pin down the figure exactly but it is on the low side. There is a range of scenarios to which this could apply. It could be an accidental landlord or any one of a number of scenarios. One scenario would be a big student accommodation provider, perhaps a big international finance company, coming here, opening a block of 300, 400 or 500 places and saying it is being offered on a licence and not a tenancy basis. Would the witnesses be aware whether any of that handful of cases apply to such a student accommodation provider?
In addition, if someone knowingly provides student accommodation on a licence basis whereas the real content of it is more appropriate to a tenancy, what is the nature of that offence? Is it a civil or a criminal offence?
Yes. To pick up on Deputy Barry's point and talk about a real case because sometimes talking about hypothetical cases makes it more difficult, there was an important decision by the Residential Tenancies Board in August, following on from the rent increases in Cúirt na Coiribe, in Galway. While ultimately the case was unsuccessful because the student was not taking up a new licence in that property, the determination is very clear in that that student property was subject to the jurisdiction of the Residential Tenancies Board and therefore was covered by the rent pressure zones measure. In my view it was very unfortunate that the student who took the case did not have standing. If somebody who was subject to the rent increase had taken the case, one assumes he or she would have been successful and the landlord would then have been forced to reduce the rent, which emphasises the value of the RTB having those additional investigation powers. For the purposes of clarity, will the witnesses confirm to the committee if my interpretation of that case is correct, namely, that somebody who was on a student licence took a case to the RTB and that one of the important findings was that that licence was a tenancy and therefore, in that instance, is covered by the RTB if the person taking the case is subject to the rent increase?
Apologies, Chairman. In terms of the reason it is pertinent, in the last session we put the question directly to the two Departments whether they agreed with the Residential Tenancies Board that the existing legislation applied to student tenancies. In fairness to the Department of Housing, Planning and Local Government, it seemed to suggest that the problem was the confusion and if the confusion was clarified, that would be great. The Department of Education and Skills still seems to suggest that it did not apply, so it is pertinent to the Bill in that sense.
Ms Rosalind Carroll:
It is a matter of clarification, but it is also case specific. In the case the Deputy refers to, he is correct. Those were the findings, and it was a specific accommodation provider, to refer to Deputy Barry's point. The case was brought on the basis that it was a licence agreement and it was found to be a tenancy agreement, which goes back to our view that there is a basis for that. However, as Ms Fogarty also said, in each case we need to examine the substance behind it. It is not the licence agreement; it is the practice behind it. Has there been peaceful and exclusive occupation of the dwelling, does the person have his or her own access to the property and so on? The adjudicator or tribunal would look to certain principles. If it was a registration, the courts would look to that. In the case to which Deputy Ó Broin referred, we found that a tenancy existed. If an existing tenant had brought that case, we would then be able to examine the rent matter.
Ms Janette Fogarty:
Our legislation sets out rights and obligations of landlords and tenants, and we can look at the jurisdiction. If it is determined it is within jurisdiction, the RTB will examine the subject matter of it. If it is around a pressure zone, for example, it will investigate if rent that has to be referred back. It does not specifically examine the possibility of going after somebody for an offence. We can go after them from a registration perspective in that they have not registered the tenancy. On the dispute resolution end, however, once it maintains that it has jurisdiction, if there was peaceful and exclusive occupation it will examine the reason that peaceful and exclusive occupation is being restricted. It is to tease out whether there is an attempt to circumvent the legislation. The registration would be separate to the dispute resolution. They will determine the dispute once they examine if they have jurisdiction. We would separately look at the registration aspect of the tenancy.
I thank Ms Carroll and Ms Fogarty from the Residential Tenancies Board for their attendance. I apologise that I missed the start of the meeting; I was at the Business Committee. I thank the members for their attendance and contributions. The meeting is adjourned. The next meeting of the committee will be held on Wednesday, 28 November.