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

I will address these amendments as quickly as I can. As Senator Warfield mentioned previously, the legislation we are amending is of quite a technical nature. It is important that Senators are clear on what we are doing.

Amendment No. 15 inserts section 11 into the Bill to provide for circumstances in which Part 3 shall not apply, including where a landlord makes a counter-declaration to disapply the protections because of its impact on his or her personal and financial circumstances. Like with a tenant declaration, it shall be an offence for a landlord to make a declaration that is false or misleading. Rightly so, there is a balance there.

I will now deal with amendments Nos. 9 to 17, inclusive, to Government amendment No. 15. I cannot accept amendment No. 9 to Government amendment No. 15. In line with the advices of the Office of the Attorney General, the Government seeks to limit as much as possible any interference with constitutionally protected property rights. It is considered reasonable in the context of Covid-19 that rent arrears to the value of five months' rent should be the maximum protection that should apply to a tenant. We have other emergency supports available, in particular the emergency rent supplement that is administered by the Minister for Social Protection, Deputy Humphreys. The scheme is working well. Given the significant State supports available, it is not considered fair to expose a landlord to rent arrears in excess of this amount, as it would put the property in jeopardy in many instances. I have already referred to the 16,000 buy-to-let properties in arrears. The expectation is that tenants will use the time afforded by the protections under Part 3 to work to resolve their rent arrears situation.

The enhanced protections for tenants in rent arrears first came into operation on 1 August 2020, which is less than five months ago. The enhanced State income supports were first introduced in March 2020. I encourage people to access them if they are having difficulty paying their rent. We need to be fair in the legal protections we provide. Tenants have a responsibility to resolve a rent arrears situation. They are being protected while they do so, but we cannot just ignore any situation where arrears have built up. Tenants are obliged to pay their rent and they have entered into a contract in that regard.

If a tenant has rent arrears of more than five months on 10 January, they will not be protected under Part 3. Without Part 3 of this Bill, their tenancy would have been due to terminate on 11 January, or within the 90-day termination notice period, whichever is the later. The Covid-19 rent arrears in question could have been building since March, despite the State income protections and the tenancy protections available. I do not accept that the Government can justify another three months' protection to tenants in such circumstances. I do not envisage this being a major situation anyway. I understand the reason the amendment has been tabled but, thankfully, it has not come to pass under the legislation.

I cannot accept amendments Nos. 9 to 17, inclusive, to Government amendment No. 15. The protections under the new Part 3 are conditional. Requirements are rightly being imposed on tenants to engage with State supports, and to engage with their landlords, again rightly so, to resolve their rent arrears situation. I think it is reasonable that the Part 3 protections would cease to apply to a tenant who does not co-operate with the RTB or MABS in facilitating the provision of necessary financial and budgeting advice to resolve their rent arrears. I do not understand why that would be the case. Why would someone wilfully decide not to co-operate with the assistance that was given and not to pay rent? That is not a situation any of us could reasonably stand over.

It is reasonable that protections would also apply to landlords in such circumstances. The application of Part 3 should not cause undue financial hardship to a landlord. Section 78 of the Residential Tenancies Act provides for a non-exhaustive list of disputes and complaints that can be referred to the RTB for resolution. For example, where a landlord makes a declaration to the RTB and their tenant under Part 3 of this Bill, they may then proceed to serve a notice of termination on the basis of the rent arrears. It is of course open to the tenant to refer a dispute to the RTB as to the validity of the notice of termination within 28 days. We changed that earlier this year in previous legislation to extend the period. It is more likely that the validity of any declaration made under Part 3 would be considered in the context of a dispute resolution as to the validity of a related notice of termination.

I am satisfied that subsections (4) and (6) of section 11, and section 11 in its entirety, are appropriately drafted and align with the Government's policy objectives. The law needs to be strong and robust. The criteria for landlords to make a declaration are carefully set out to provide clarity and objectivity as to the circumstances where a landlord may make such a declaration. If a landlord makes a false declaration, that is also an offence, rightly so.

I have set out in detail the circumstances in which a landlord is a "relevant person" and how the protections under Part 3 can be disapplied. We must be fair.This can only be achieved by clearly defining a "relevant person" under Part 3 in the context of a landlord or, on a similar basis, a relevant person in the context of a tenant. Both landlords and tenants need to be clear on whether this Part applies in their case. Part 3 involves a cost and we must recognise that.