Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

On amendment No. 4, this is an emergency Bill designed to apply in respect of winter emergency period only. Its provisions are carefully drafted to limit its interference with constitutionally protected property rights of landlords. On the landlord's right to terminate a tenancy on the ground that he or she intends to sell the property, I wish to clarify for the House that outside the winter emergency period there is no general provision in the Residential Tenancies Act to prohibit a landlord from selling his or her property with a tenant in situ. However, it is recognised that the landlord is likely to realise a lower sale price for a property sold without vacant possession. Since September 2016, the Tyrrelstown amendment provides that where a landlord proposes to sell ten or more units in a single development at the same time, the sale is subject to the existing tenants remaining in situother than in exceptional circumstances. The Tyrrelstown amendment was carefully drafted to promote security of tenure in the interest of the common social good. The provision strikes a balance between landlords' right to sell their property and achieve a fair return on investment and a tenant's right to security of tenure. Any proposal to remove the landlord's right to terminate a tenancy in a case of every rental property being sold would carry with it the risk of constitutional challenge. Successive Governments have not provided a legal requirement that the sale of rental properties on the basis of tenants remaining in situtaking into account legal risks involved.

The Residential Tenancies (Amendment) Act 2019 enhanced tenancy protections to provide that where a landlord terminates a tenancy because he or she intends to sell a property, he or she must enter into a contract for sale within nine months of the termination date and if not, must offer to re-let to a former tenant.

Amendment No. 4 also proposes to amend the wording of the termination ground under paragraph 5 of the table to section 34 relating to the substantial refurbishment or renovation of the rental dwelling. The Residential Tenancies (Amendment) Act 2019 significantly strengthened the protections around the grounds for termination of a tenancy particularly in respect of paragraph 5. Where the landlord intends to substantially refurbish or renovate a rental dwelling in a way that requires a dwelling to be vacated for the purpose, a notice of termination must contain or be accompanied in writing by a statement specifying the nature of the intended works and in the case where planning permission has been obtained, a copy of the planning permission must be attached to the notice or a statement that planning permission is not required and specifying the name of the contractor, if any, employed to carry out intended works and the dates on which the intended works are to be carried out and the proposed duration of the period in which those works are to be carried out and that the landlord is required to offer to the tenant a tenancy of the dwelling and the dwelling becomes available for re-letting by reason of the completion of the works of refurbishment or renovation. In addition, the notice of termination must contain or be accompanied by a certificate in writing of a registered professional within the meaning of the Building Control Act 2007 stating that the proposed refurbishment or renovation works would pose a risk to the health or safety of occupants of the dwelling concerned and should not proceed while the dwelling is occupied. Such a risk is likely to exist for such a period as is specified in the certificate, which will not be less than three weeks.

These substantial changes were made in 2019 to strengthen enforcement of tenancy termination protections while respecting landlords' constitutional rights regarding their property. Owners of rental properties need to be sure that the property rights are protected under the Constitution. We need to safeguard investment in the rental sector.

Amendment No. 4 also proposes to amendment section 35 of the 2004 Act. While the purpose of the winter emergency period is to assist renters who are finding it difficult to source accommodation in the constrained rental market in the short term, I do not believe that it would be appropriate to permanently amend the definition of "family member" to prevent a landlord from terminating a tenancy to enable occupation of their property by a family member such as a grandchild, parent, grandparent, step-parent, parent-in-law, brother, sister, nephew or niece of the landlord as the Act currently provides. I cannot accept this proposed amendment to the 2004 Act. It is reasonable to expect that the personal circumstances of many landlords with one or two rental properties might well give rise to a need to provide a home for a family member at some stage. The investment in the rental sector needs to be safeguarded and measures such as those proposed by the Senators would lead to a loss of units from the sector.

I cannot accept amendment No. 6 as I outlined earlier. The Bill has been carefully calibrated to balance both the rights of tenants and landlords. Tenants facing a notice of termination will receive protection under the Bill to remain in situover the winter emergency period allowing time for housing supply to increase over that period. While we are interfering with landlords' constitutional property rights, this interference is made in a limited manner and applies for a short period. The interference is also carefully calibrated to affect certain tenancy terminations only. To provide a requisite balance, exceptions are provided to the application of this law. The deferment of tenancy termination dates will not apply where there has been a breach of tenancy obligations or where the landlord cites as a ground of notice of termination breach of the tenant obligations, including rent arrears or that the dwelling no longer suits the accommodation needs of the tenants having regard to bed spaces and the size of the household. We need to safeguard landlords rights in such cases where tenancy termination might be a necessary step to protect their property and livelihood.

The Senators propose to remove breach of tenant obligations as a legitimate justification altogether. The reality is that tenants have a number of obligations that must be met under section 16 of the Residential Tenancies Act, which, if not met could result in significant costs such as increased insurance or extensive repairs to the landlord. For those tenants who are struggling to meet their obligations to pay rent, there are supports available as I outlined on Second Stage, including rent supplement, supplementary welfare allowance and the additional needs payments from the Department of Social Protection. There are supports in place to help tenants to meet their obligations and the Government will not be found wanting when it comes to protection of the most vulnerable.

I cannot accept amendment No. 7. I understand the motivation of Senators in trying to disapply the protections under the Bill only where there is clear breach of tenant obligations. Tenants have a number of obligations that must be met under section 16 of the Residential Tenancies Act, which if not met by a tenant could result in significant costs such as increased insurance or extensive repairs to the landlord. The tenant obligation to pay rent is key to the operation of the rental market. I readily accept that some tenants are struggling to meet their obligations to pay rent and again wish to stress that there are supports to help. From 1 August 2020, the Government introduced permanent enhancements to tenancy protections for those in rent arrears. New procedures require landlords to serve both the RTB and the tenant with both a 28-day warning notice seeking payment of rent arrears and any related notice of termination. Upon receipt of the notice, the RTB acknowledges receipt from the landlord and the tenant and provides information to the tenant to enable him or her to get advice from MABS and offers assistance to the tenant in obtaining this advice. Any notice of termination grounded on rent arrears must be copied to the RTB and will be invalid if not so copied, and notice of termination grounded in rent arrears can only be served by landlords on the condition that a written rent arrears warning was given to the tenant and the RTB and the arrears were not paid within 28 days following receipt of the warning by the tenant or the or RTB, whichever occurs later. The aim is to ensure that early action is taken to address rent arrears to the benefit of both tenant and landlord. Again, the Government is acutely aware of the pressure on tenants and is keen to try and put in place what helps that are needed.

I cannot accept amendment No. 8 but I again understand the motivation of Senators in trying to restrict the breach of obligations in respect of which the protections under this Bill shall not apply. The amendment seeks the Bill's protection to apply unless there is damage to the property over and above the normal wear and tear, antisocial behaviour by the tenant or visitors to their dwelling. The reality is that tenants have a number of obligations that must be met under section 16 of the Residential Tenancies Act. Apart from tenant obligations referred to by the Senators in their amendment, tenants are obliged to pay rent, not engage in actions that would invalidate the landlord’s insurance policy on the property, not unlawfully sublet the property and, inter alia,not use the dwelling or cause the dwelling to be used for any purpose other than as a dwelling without the written consent of the landlord. As I have said, there are a number of obligations that if not met by the tenant could result in significant cost to the landlord.For those tenants who are struggling, again, supports are available.

I cannot accept amendment No. 9, although I understand the sentiments behind it. The Government has framed the Bill in line with the advice of the Attorney General and we believe we have struck a fair and defensible balance between the rights of tenants and landlords. Overcrowding of a rental property could have significant ramifications for a landlord. A landlord has obligations to his or her tenants and also to his or her neighbours to enforce tenant obligations as may be required.

Since quarter 2 of 2019, notices of termination served on the basis that the dwelling is no longer suitable to the accommodation needs of the tenants have represented just 2% of all notices of termination copied to the RTB. Landlords must also comply with the Housing Act 1966, whereby a local authority may direct a landlord to reduce the number of occupants of the property to a safe level should a tenancy agreement be breached and the resulting overcrowding may pose health and public safety risks.

Section 63 of the Housing Act 1966 deals with overcrowding and, inter alia,limits the number of people who can occupy the same bedroom. Where a landlord seeks to end a tenancy on this ground, the notice of termination must specify the number of bed spaces and the reason the property is no longer suitable with regard to the bed spaces and the household composition. The RTB dispute resolution service will be available as usual over the winter emergency period to assist where issues arise in regard to such terminations.

I cannot accept amendment No. 10. I am not entirely sure I understand its intent but it seems to introduce a qualifier with regard to the exceptions under section 2(2) on deferment provisions. To be clear, section 2 applies to notices of termination served on or before the date on which the Bill is enacted. The exceptions under section 2(2) also apply to notices of termination served on or before the Bill is enacted. There is a need for the exceptions under section 2(2) to ensure the Bill will provide the necessary balance in its tenancy protections, again for both tenants and landlords.

Similarly, I am not entirely sure what the intent of amendment No. 10, which I cannot accept, is but it seems to introduce a qualifier with regard to exceptions under section 2(2) to deferment provisions.

Amendment No. 11 appears to be similar to amendment No. 10 but restricts its application to cases of overcrowding, which we have discussed. To be clear, I reiterate section 2 applies to notices of termination served on or before the date on which the Bill is enacted. The exceptions under section 2(2) also apply to notices of termination served on or before the date on which the Bill is enacted. There is a need for the exceptions under section 2(2) to ensure the Bill will provide the necessary balance for tenancy protections between tenants and landlords. I think the intent of the amendment is to allow tenants who live in overcrowded rented dwellings to avail of the protections under the Bill over the winter. Again, I cannot accept amendment No. 11, for the reasons discussed in respect of amendment No. 9. It would not be safe for tenants or, potentially, their neighbours.

I cannot accept amendment No. 12, which seeks to allow a tenant who does not pay rent to avail of the protections over the winter. The tenant obligation to pay rent is a key to the operation of the rental market. I readily accept that some tenants are struggling to meet their obligations to pay rent and I reiterate that supports are available to help them, which I have outlined.

On 1 August 2020, the Government introduced new permanent enhancements to tenancy protection for those in rent arrears. The new procedures require landlords to serve both the RTB and the tenant with a 28-day warning notice seeking payment of arrears also related to notice of termination. On receipt of the warning notice, the RTB will acknowledge its receipt to the landlord and tenant and provide information to the tenant to enable him or her to get advice from the Money Advice and Budgeting Service, MABS, and offer assistance to the tenant in regard to this advice. Any notice of termination grounded in rent arrears must be copied to the RTB and will be invalid if not so copied. A notice of termination grounded on rent arrears can be served by a landlord only on the condition that a written rent arrears warning was given to both the tenant and the RTB, and the arrears were not paid within 28 days of receipt of the warning by the tenant or the RTB, specifically whichever occurs later. The aim is to ensure early action is taken to address rent arrears in the interests of both tenant and landlord.

I cannot accept amendment No. 18, a consequential amendment to the Title on foot of Labour Party amendments the Government does not accept.