Darragh O'Brien (Dublin Fingal, Fianna Fail) | Oireachtas source

I will do so but I wish to respond to Senator Warfield briefly first. I will not be accepting his amendment for the reasons outlined already. I know that Senator Warfield agrees that it is imperative that we deal with the issue of substitute consent. As Minister, I have used the first opportunity presented to me, which is this Bill, to try to deal with the issue as expeditiously as possible. My aim is to ensure that the State does not continue to be liable for daily fines into the distant future. It is still going to take time to fully resolve this because by resolving the substitute consent issue, we are not telling the board what to do but are just allowing it to move on and make its decisions. As Members will be aware, we are incurring fines of €15,000 per day in relation to the Derrybrien site. We have already made a lump sum payment of €5 million and another stage payment of almost €2.5 million. The continuation of this is not something that any of us can countenance which is why I am using this opportunity to rectify the situation and to allow the board to move on. I will not be accepting the amendment tabled by the Sinn Féin Senators.

I will now address group 3, which consists of amendments Nos. 13 and 14 and Seanad Report Stage amendments No. 2 and Nos. 4 to 8, inclusive. Amendment No. 13 inserts a new section 9 into the Bill to provide for the interpretation of Part 3 and defines the emergency period to mean the period from 11 January 2021 to 12 April 2021. This is effectively a further extension of the protection period provided for in the Residential Tenancies and Valuation Act 2020. This means that the protections introduced in March will have lasted for more than a year. As I said to Senators previously, if I feel that we need to come back and do more, I will do so. Indeed, we have done that twice already. We also have the permanent protections, should the State have to go back into level 5 restrictions although we all hope that will not happen. If it does, however, the blanket ban on evictions will automatically come back into play on foot of the decision made by the Dáil and Seanad a number of months ago.

Amendment No.14 inserts section 10 into the Bill, which sets out that the new Part 3 protections shall apply where a tenant makes the necessary written declaration that he or she is unable to pay the rent due to Covid-19 and is at risk of losing his or her tenancy and at the same time serves a notice on the Residential Tenancies Board, RTB, requesting assistance to obtain advice from the Money Advice & Budgeting Service, MABS and within five days of making his or her declaration, serves a notice on his or her landlord seeking consultation to make arrangements to pay rent due. The new Part 3 applies to tenants who have made a declaration under the Residential Tenancies and Valuation Act 2020, subject to certain conditions.

I cannot accept Opposition amendment No. 2 to amendment No. 13, which proposes to increase the new emergency period under Part 3 from three months to a total of five months ending on 12 June 2021. This is in line with advice from the Attorney General. The Government seeks to limit as much as possible its interference with the constitutionality of protected property rights of property owners. We must balance these rights with protections for tenants. It is the hope of the Government that the situation for tenants will have improved by 12 April so there will be no need for the provisions contained in Part 3. As I have said previously, and the Government's bona fides have been proven in this regard, should we need to revisit this at the appropriate time and provide for a further proportionate extension, I will do so. I have already done so twice this year. Covid-19 has brought much uncertainty and we will need to continue to work together between now and April to protect tenants and wider society and we will do so, post that date, if required. We might need to review the situation closer to April and will do so if necessary.

Opposition amendment No. 4 relates to section 10 of the Bill. I cannot accept this amendment to Government amendment No.14, which proposes to delete the requirement for a tenant to be a "relevant person" as defined in subsection (6) of the new section 10 and replace it with "he or she anticipates falling into rent arrears in the near future". The definition of "relevant person" in this Bill is modelled on the definition contained in the Residential Tenancies and Valuation Act 2020, which was passed in the Houses in late July. It was accepted then that the law needed to clearly set out which tenants in rent arrears are considered vulnerable due to Covid-19 and in need of enhanced tenancy protections. The updated definition in this Bill is the Government's assessment of which tenants need most help. We aim to protect tenants whose finances, through no fault of their own, have been negatively impacted by Covid-19, causing rent arrears and putting them at risk of losing their tenancy. State assistance is available to support rent payments through the emergency rent supplement scheme. Again, I urge and encourage those who have difficulty paying their rent to access that scheme. It might take some tenants longer than others to access the income supports that are available and these are the tenants we wish to protect in the short term under Part 3. The protections in Part 3 are quite rightly targeted at those tenants who need them the most. These protections have been working. If a tenant falls into arrears as a result of Covid-19 and is at risk of losing a tenancy, he or she can make a declaration under the July Act before 10 January or under Part 3 of this Bill from 11 January onwards.

I cannot accept amendment No. 5 to Government amendment No. 14. The text of subsection (3) of section 10 of the Bill has been carefully considered from a policy and legal perspective. The law needs to be strong and robust. The tenant declaration is the key to activating the protections under this Bill and a false or misleading declaration in a material respect is a serious matter, whether that be made by a landlord or a tenant. The provision for an offence is required to counter any temptation for anyone who has not been financially impacted by Covid-19 to wilfully withhold rent due and avoid a lawful rent increase while fraudulently relying on protections under Part 3. One would imagine that this would happen in only a very small minority of cases but I do not think anyone in this House would support the wilful withholding of rent. We must remember that approximately 86% of landlords own only one or two properties. There are two parties to every tenancy. We must consider the interests of both the tenant and the property owner. The issue is balancing that, and this Bill and the extension to the provisions we introduced in July do that. I am satisfied that section 8(3) is appropriately drafted and I cannot accept the amendment. A tenant has nothing to fear if he or she makes a truthful application or declaration. The declarations that have been made have been accepted and I repeat that there have been no issues with regard to any reports of false or misleading declarations. The provision ensures that the declarations are robust. If there is a doubt, the RTB is available to help tenants and all relevant documentation will be on its website. We further resourced the RTB in the budget with more financial and physical resources to assist it in carrying out its duties under the additional responsibilities we have given it.

I cannot accept amendments Nos. 6 and 7 to the Government amendment. In the context of the three-month emergency period and the assistance that will be available from the RTB in providing the necessary declarations and notices on its website, it is reasonable to require a tenant in rent arrears who makes a declaration to be protected under Part 3 also to serve that notice. The notice is simply advising the landlord within five days of the declaration, to request that he or she consults to try to deal with any rent arrears issues. That can help resolve it. We should remember that less than 2% of tenancies end up in any type of dispute. In the vast majority of cases these measures will not apply, but we must have the protections in place. The tenant is also required to serve the landlord with a true copy of his or her declaration to the RTB to be protected under Part 3. Again, we have had no issues with this. The landlord will be expecting to hear from the tenant with regard to paying the rent. The requirement here is simply to serve the notice on the landlord within five days to seek a consultation on making rent payment arrangements. It is not a requirement that the agreement be made within those five days. It is simply to make contact, and that is reasonable.

In practice, the RTB website will provide a template for the tenant declaration, in duplicate for serving to the RTB and the landlord, and a notice for the tenant to request the RTB's assistance in obtaining the advice of MABS. The Act passed in July tied MABS into this resolution process. It is a permanent fixture and is one that all have welcomed. There is also a notice for the tenant to request the landlord to consult on a rent payment arrangement. The RTB will make it as easy as possible for tenants. Rather than waiting for the five days, it is more likely a tenant will deal with the requirements under Part 3 at the same time as making his or her declaration to the RTB. Certainly, we aim to assist tenants to do so. The RTB will be writing to all tenants who have made a declaration under the Residential Tenancies and Valuation Act 2020 to outline precisely what steps they should take if they need the protections under Part 3 to continue to next April.

The Bill is scheduled for early enactment. The five-day window for those protected under the Residential Tenancies and Valuation Act 2020 to fulfil requirements under Part 3 of the Bill, if not already fulfilled, does not commence until 11 January 2021. The RTB advises that, up to the end of November, 328 tenants have made the necessary declaration to become protected under the Residential Tenancies and Valuation Act 2020. The RTB will have adequate time to assist these tenants to fulfil any new requirements by midnight, 15 January 2021. The provisions seek to ensure that tenants act in a timely manner by engaging with State supports, and that will help in that regard, and with their landlord to resolve any rent arrears issues at the earliest juncture. It is in everyone's interests to do so. We do not want to have a needless accumulation of rent arrears, an issue that has been discussed both here and in the Dáil. We are helping tenants to pay their rents, and rightly so. Landlords, as well, should not go without lawful rental income or with it being withheld. Covid-19 has impacted on both tenants and property owners.

I cannot accept amendment No. 8 to Government amendment No. 14. In line with advice from the Office of the Attorney General, the Government seeks to limit as much as possible the interference with constitutional property rights. Tenants who fall within the definition of the relevant person and are at risk of losing their tenancies can avail of the new Part 3 protections. For a tenant other than a tenant already protected under the Residential Tenancies and Valuation Act 2020 to be a relevant person under Part 3, it means he or she is unable to comply with his or her obligations to pay rent due in respect of a tenancy because he or she is, or at any stage between 1 August 2020 and 12 April 2021, in receipt of or entitled to receive illness benefit for Covid-19 absence or in receipt of or entitled to receive the temporary wage subsidy or any other social welfare payment or State support paid as a result of loss of earnings due to Covid-19. That includes rent supplement or supplementary welfare allowance.

This is an updated definition only in respect of the period of time in question for eligibility. A relevant person under the Residential Tenancies and Valuation Act 2020 must be in receipt of, or entitled to receive, the aforementioned State payments between 9 March 2020 and 10 January 2021. The person does not have to have been receiving it, just entitled to receive it. Many tenants will qualify for protections under both this Bill and the Residential Tenancies and Valuation Act 2020, subject to certain conditions. There is still time for any tenant who wishes to be protected under the Act to make an application by 10 January 2021. Any tenant who has been in receipt of the aforementioned State payments during the period from 9 March 2020 to 31 July 2020 has had a great deal of time to make necessary arrangements to be protected under the Residential Tenancies and Valuation Act 2020. There is still time to make that simple self-declaration should anybody not have done so. These new protections are carefully targeted at those tenants who are most affected by the Covid-19 pandemic, and rightly so.