COVID-19 Practical Considerations: New targeted measures to assist residential tenants and uncertainty regarding commercial tenancies removed
In this audio briefing, Dearbhla Considine, Professional Support Lawyer in the Real Estate team, is joined by Órlaith Molloy, Real Estate Partner, to discuss some of the key changes to residential landlord and tenant law that our clients need to be aware of.
The Residential Tenancies and Valuation Act 2020 (the “Act”), enacted on 1 August 2020, replaces the measures put in place to protect residential tenants set out in the Emergency Measures in the Public Interest (Covid-19) Act 2020.
The Act, amongst other measures:
- replaces the general moratorium on the termination of tenancies and rent increases with more targeted protection for tenants whose rent payment capacity has been directly affected by COVID-19;
- requires landlords to notify the Residential Tenancies Board (the “RTB”) of any proposals to terminate a tenancy for non-payment of rent; and
- clarifies that commercial tenancies are not affected by the prohibition on tenancy terminations.
New emergency period
The Act defines the new emergency period (during which the protections set out below apply) as the period from 2 August 2020 to 10 January 2021 (the “Emergency Period”).
Protection for tenants in rent arrears due to COVID-19
The Act protects tenants (including licensees of student accommodation) who are in rent arrears due to COVID-19 and, as a consequence, are at significant risk of their tenancy being terminated.
If a tenant satisfies the “relevant person” criteria set out below and completes a declaration to this effect (which must be served on the RTB and the landlord), their tenancy cannot be terminated or their rent increased for the duration of the Emergency Period i.e. until 11 January 2021. The RTB has published a template declaration (linked here).
“Relevant person” criteria
To avail of the protection in the Act, tenants must be unable to pay their rent because:
- they are (or were, during the period from 9 March 2020 to 10 January 2021) temporarily out of work because they contracted COVID-19 or were a probable source of infection of COVID-19 and their employer was not obliged to pay them; or
- they were in receipt of (or entitled to receive) the temporary wage subsidy or any other social welfare payment paid for loss of earnings due to COVID-19 (including the rent supplement or a supplementary welfare allowance); and
- as a consequence of the above, there is a significant risk that that their tenancy will be terminated by the landlord.
Increased notice requirements for tenancy termination for non-payment of rent during the Emergency Period
During the Emergency Period, before serving a tenancy termination notice for non-payment of rent, landlords must first serve a 28 day warning notice on both the tenant and the RTB. Upon receipt of the warning notice, the RTB must provide the tenant with information to enable them obtain advice from the Money Advice and Budgeting Service (MABS) and request the tenant’s consent to assist them in obtaining such advice.
If the rent arrears are not discharged within the 28 day warning period, the landlord can then serve a 28 day tenancy termination notice. The termination notice must be copied to the RTB who must then notify the tenant of their entitlement to refer a dispute in relation to the termination notice to the RTB.
Notwithstanding the 28 day notice period for the termination of a tenancy for non-payment of rent, the Act provides that, where the termination notice is served on a tenant who is protected by the Act for the duration of the Emergency Period, the termination can only take effect on the later of 90 days after the termination notice is served or 11 January 2021. Accordingly, a landlord can still serve a termination notice on a protected tenant during the Emergency Period but the termination can only take effect on the later of on the dates specified above.
For all other tenants i.e. those who are not a “relevant person” under the Act, the notice period for termination of their tenancy for non-payment of rent remains unchanged at 28 days.
Can landlords now terminate tenancies on grounds other than non-payment of rent?
Yes. The emergency period under the Emergency Measures in the Public Interest (Covid-19) Act 2020 expired on 1 August 2020 so landlords can now terminate tenancies on the other grounds set out in Section 34 of the Residential Tenancies Act 2004.
What is the status of termination notices and rent review notices that were paused on 27 March 2020?
The notice periods provided for in these notices starts to run again from 2 August 2020. Only tenants who satisfy the criteria set out above and serve the necessary declaration on the RTB and the landlord can avail of the protection against tenancy termination and rent increases during the Emergency Period. The usual provisions apply to all other tenants.
How does the Act affect commercial tenancies?
Section 5(7) of the Emergency Measures in the Public Interest (Covid-19) Act 2020 prohibited all proposed evictions in all tenancies in the State, including those not covered by the Residential Tenancies Act 2004. Section 13 of the Act deletes Section 5(7) so the uncertainty around whether commercial tenancies are affected by the prohibition has been removed.
Postponement of second revaluation of Dún Loghaire-Rathdown County Council rating authority area
Section 14 of the Act increases the period of time during which the second revaluation of properties in the Dún Laoghaire-Rathdown rating authority area will be published from 10 years to 12 years, with a return to the usual 10 year period in 2023. This means that the revaluation of rateable properties in the Dún Laoghaire-Rathdown County Council area is being deferred until 2021.
The RTB’s guidance on the Act is linked here.