Residential Tenancies- Emergency Legislation to affect the landlord and tenant relationship

Further Update: The Government has now extended the Emergency Period under the Act to 20 July 2020, pursuant to Statutory Instrument 224 of 2020. All dates in this article should therefore be read as one month later than the stated date. We will keep you updated on any further extensions in respect of this Act.

By David Phelan, Caitriona Harte and Matthew Wallace
1 April 2020

On 27 March 2020, the Emergency Measures in the Public Interest (Covid-19) Act 2020 (the “Act”) was signed into law. Upon enactment, a number of temporary emergency measures aimed at mitigating the impact of the Covid-19 (Coronavirus) pandemic on residential tenants commenced.

The Act amends the Residential Tenancies Acts 2004-2019 (the “RTA") in a number of respects. It is worth noting that the preamble to the Act makes it clear that the purpose of these amendments are to deal with a short-term emergency facing the State and its citizens and states that there are compelling reasons in the public interest to take temporary measures to alleviate the impact of the spread of Covid-19.

Duration

The emergency period, which commenced on 27 March 2020, will last for the period of 3 months from the enactment of the Bill or such other period as may be specified by ministerial order from the Minister for Housing, Planning and Local Government (the “Emergency Period”) but such extension shall only be made having regard to the threat to public health, the highly contagious nature of the disease, and the need to restrict movement of persons in order to prevent the spread of the disease. Such ministerial order may be annulled by the Oireachtas by resolution within 21 days of said order to extend the period being laid before either House of the Oireachtas. The Emergency Period will therefore run, unless otherwise extended, from 27 March 2020 for 3 months.

Prohibition on serving notices of termination and evictions

Landlords cannot serve a notice of termination (of any kind whatsoever) on a residential tenant during the Emergency Period and any such notices served during this time will be invalid. The Act also provides that no evictions, including those not covered by the RTA such as Local Authority Housing and housing of Approved Housing Bodies, shall be permitted during the Act. The Act prevents eviction of Travellers except in limited, humanitarian circumstances. See below details of a further limited exception in relation to determinations made by the Residential Tenancies Board (the “RTB”) that a tenant must vacate a dwelling.

Revised termination date in certain cases where notices of termination were served before the Emergency Period

If a notice of termination has been served on a tenant prior to the Emergency Period, the relevant notice period will be suspended for the duration of the Emergency Period. The time remaining to run on the notice period at the start of the Emergency Period will resume the day after the Emergency Period expires. This will result in a “Revised Termination Date”. This Revised Termination Date will be the aggregate of the period of notice that remains unexpired on the commencement of the Emergency Period plus the Emergency Period plus one additional day.

Example 1: John had been in occupation as a tenant under a Part 4 tenancy for 1 year when he was served with a valid notice of termination (giving him a 120 day notice period) by his landlord on 1 January 2020. His initial termination date under this notice is 30 April 2020. As the Act was enacted on 27 March 2020 and assuming that the Emergency Period is not extended beyond 3 months, the Revised Termination Date for John’s tenancy will be three months plus one day later on the 1 August 2020 as the remaining days left to run on his notice period will recommence once the Emergency Period has expired.

It is worth noting that in the event that the Landlord has served a notice of termination by reason of a breach of the terms of an existing tenancy and that notice is disputed by the tenant before the Residential Tenancies Board (the “RTB”), then the suspension of this notice period will not apply and separate provisions apply in this scenario.

Notices for non-payment of rent

Prior to the enactment of this Act, it was a condition of the RTA that before a Landlord may serve a notice of termination for non-payment of rent, they must have served a 14 day notice in writing on the tenant declaring the amount of rent due and unpaid. Under the Act, the Landlord must now wait for a period of 28 days after the issuing of a notice in writing for the non-payment of rent before they may serve a notice of termination on the grounds of non-payment of rent. As stated above, a notice of termination whether or not based on this ground would not be valid unless served after the Emergency Period.

Rent increases

The Act provides that any increase in rent (whether notified to the Tenant before or during the Emergency Period) shall not take effect during the Emergency Period and rent increases that were due to commence during the Emergency Period shall not be payable. In effect, the rent which was payable immediately prior to the Emergency Period shall remain the rent payable for the duration of this period and the increased rent will not be payable until after the Emergency Period lapses.

The obligation to pay the existing rent is unaffected by the proposed changes.

Occupation during the Emergency Period

Under this Act, tenants upon whom a notice of termination has been served prior to the Emergency Period, shall be entitled to remain in occupation of a dwelling until the expiration of the Emergency Period, unless:

1. they are required to vacate the dwelling in accordance with a determination of an adjudicator of the RTB; or
2. they are required to vacate the dwelling in accordance with a determination of a tribunal of the RTB.

This ties in with the suspension of the notices of termination during the Emergency Period. However, it does not entitle a tenant who has left a dwelling before the expiry of a notice of termination period to re-enter and re-take occupation of a dwelling once they have vacated it.

Tenancies less than 6 months old: Suspension of Part 4 Rights during the Emergency Period

Prior to the enactment of the Act, the tenant protections provided for under Part 4 of the RTA (including the specified notice of termination periods) automatically applied after the expiry of the first 6 months of a new and qualifying tenancy. The Act now provides that this 6-month clock on the application of these protections is also suspended during the Emergency Period. This means that the clock stops on the accrual of the 6-month statutory period and will recommence again only after (and not during) the Emergency Period.

Example 2: Mary entered a new private residential tenancy for a dwelling on 1 January 2020. Mary’s rights under Part 4 of the RTA were due to apply from 1 July 2020. However, as the Act commenced on 27 March 2020, and assuming that the Emergency Period lasts for three months and is not extended, Mary’s Part 4 rights will now not commence until 1 October 2020.

However, the Act also provides that where a notice of termination in respect of a tenancy of less than 6 months duration (i.e. one where Part 4 protections do not yet apply) was served before the Emergency Period, the specified termination date of that tenancy shall become a Revised Termination Date i.e. the termination notice period shall be suspended during the Emergency Period. To apply this provision to the above example, if Mary has been served a valid (statutory minimum) 28-day notice on 29 February 2020, her termination notice period would have expired on 28 March 2020. As the Act commenced on 27 March 2020, and that the Emergency Period lasts for three months and is not extended, Mary’s notice period will not expire until 29 June 2020.

For more information on the content of this insight please contact:
Evin McCarthy, Partner | E. evin.mccarthy@rdj.ie | T. +353 1 6054204
Simon Lynch, Partner | E. simon.lynch@rdj.ie | T. +353 1 6054261
Margaret Ring, Partner | E. margaret.ring@rdj.ie | T. 353 21 4802743