Residential Tenancies Act, 2004: Explained
Article Liam Moloney, Principal Solicitor of Moloney & Company Solicitors, Naas, Co. Kildare
The Residential Tenancies Act, 2004 came into operation on the 1st September 2004 and made a number of significant changes to the existing statutory framework for Landlord & Tenant Law.
The Act is applicable to dwellings, which are the subject of a tenancy. It is not applicable to business premises, former controlled dwellings, dwellings let by local authorities, dwellings occupied under shared ownership leases, dwellings in respect of which the occupier is entitled to acquire the fee simple, a dwelling within which the Landlord also resides, a dwelling in which the spouse, parent or child of the landlord resides and in respect of which, no written Lease or Tenancy Agreement has been entered into by any resident or any dwelling, which is the subject of a Tenancy granted under Part 2 of the Landlord & Tenant (Amendment) Act, 1980 or which is the subject of any proceedings thereunder.
The following are the main provisions of the Act:-
Obligations of the Tenant. (Part 2 of the Act)
The tenant is obliged, inter alia, under the Act as follows:
- To allow access at all reasonable intervals to the landlord or his nominee for the purposes of inspecting the dwelling.
- To notify the landlord of any defects that have arisen in the property and that require repair.
- To pay the rent and any charges agreed under the Lease or tenancy agreement when they fall due.
- To allow the landlord access to carry out any necessary repairs.
- Not to do anything which would cause deterioration in the condition of the dwelling.
- To promptly notify the landlord of the identity of all residents in the dwelling.
- Not to assign or sublet the dwelling or any part thereof without the landlord’s permission.
- Not to carry out any alterations or improvements without the landlord’s permission.
- Not to behave in an antisocial manner or cause a nuisance in the property.
- To use the dwelling for residential purposes only and not to carry out any business from the dwelling.
The above covenants and conditions cannot be excluded, except where to do so would result in terms more favourable to the tenant than those available under the Act.
Obligations of the Landlord. (Part 2 of the Act)
The landlord, under the provisions of Part 2 of the Act, is obliged as follows:
- To keep the structure of the dwelling insured for at least €250,000.
- To carry out any necessary structural repairs.
- To return or repay any deposit paid by the tenant, unless there is a default in the payment of rent.
- To reimburse the tenant for any repairs to the structure or interior of the dwelling in certain circumstances.
- To forward to any management company any written complaints of the tenant.
- To allow the tenant to enjoy peaceful and exclusive occupation of the premises.
- To keep the interior of the dwelling maintained to the same standard as occasioned at the start of the tenancy.
- To furnish contact details to the tenant and the name of the landlord’s agent, if requested to do so.
Rent Reviews. (Part 3 of the Act)
The Act provides that there may be no more than one rent review in any 12 month period. This rent review may not be within the first 12 months of the tenancy. The landlord must give the tenant 28 days notice of the reviewed rent, within which time the reviewed rent may be referred to the Private Residential Tenancies Board, which is established under the Act to hear and determine dispute referred to it under the provisions of the Act. In setting the rent at any time, it may not exceed “a market rent” as defined in the Act.
Security of Tenure – Entitlement to a 4 year Tenancy. (Part 4 of the Act)
This is a very considerable change to the Landlord & Tenant (Amendment) Act, 1980. It provides that where a tenant has been in continuous occupation of a dwelling for a period of 6 months or more (commencing after the Act comes into operation) they are entitled to a 4 year tenancy, which is deemed to have commenced upon the date upon which the original tenancy agreement commenced or the date of the commencement of the Act, whichever is the later. This right can only be precluded if a Notice of Termination has been served during the 6 months prior to the right accruing to the tenant. However, the right does not arise, where the building in question consists of two dwellings, with the landlord being resident in one of the dwellings. If there are multiple tenants in the dwelling, only one of them need have six months continuous occupation for all of the tenants to benefit under Part 4 of the Act. The parties may not contract out of the right to a Part 4 Tenancy, unless the terms agreed are more beneficial to the tenant than those available under the Act.
Termination of Tenancies. (Part 5 of the Act)
A Notice of Termination must now be in writing, signed by the landlord or his agent, be in a certain format state that any issue as to it’s validity can be referred to the Private Residential Tenancies Board and must specify the date of service. If the term of tenancy concerned exceeds 6 months, it must state the reason for the termination and the termination date. The tenant has the whole of the 24 hours of the termination date to vacate the dwelling. Subject to the restrictions on the landlord in terminating the tenancy, if either party wishes to terminate a tenancy, where there has no breach of obligation by the other party, the landlord may terminate a tenancy by giving notice as follows:
Notice Period Duration of Tenancy
28 days Less than 6 months
35 days 6 or more months but less than 1 year
42 days 1 year or more but less than 2 years
56 days 2 years or more but less than 3 years
84 days 3 years or more but less than 4 years
112 days 4 or more years
In similar circumstances, the tenant may terminate a tenancy on giving the following notice:
Notice Period Duration of Tenancy
28 days less than 6 months
35 days 6 or more months but less than a year
42 days 1 year or more but less than 2 years
56 dyas 2 or more years
The Act provides for shorter periods of notice, if there is behaviour on the part of the landlord, which poses an imminent danger of death or serious injury or immediate danger to the fabric of the dwelling or the property containing the dwelling or on giving 28 days notice for terminating for any other breach of the landlord’s obligations. If there is default on the part of the tenant, the landlord may terminate on giving 7 days notice, where that tenant’s default is by reason of anti-social behaviour or said default has threatened the fabric of the dwelling or the property containing the dwelling.
The Act provides for criminal sanctions if a landlord or tenant serves a Notice of Termination that is invalid and if the landlord or the tenant acts on foot of the Notice of Termination in such a way that the interests of the person on whom the Notice is served is affected adversely. All Notices of Termination should now be carefully scrutinised before they are served to ensure compliance with the Act.
How are disputes Resolved? (Part 6 of the Act)
As earlier stated, the Act provided for the establishment of the Private Residential Tenancies Board. Any disputes arising in respect of a tenancy to which the Act is applicable may be referred to the Board at first instance. These disputes must be referred within 28 days of the termination of the tenancy. The Board has the power to review all matters relating to the tenancy to include financial compensation also. However, a precondition to any referral to the Board is that the tenancy in question has been registered. A party may not refer a dispute to the Board if that party takes any steps to avail of an alternative remedy. It would be a good idea to include an arbitration clause in the Lease, so that the parties could refer the matter to arbitration at first instance to try to resolve the dispute. The Act also provides for the appointment of an adjudicator to hear disputes and the decision of the adjudicator can be referred to the tenancy tribunal, on appeal. The adjudicator or the tribunal may make the following directions:
- A direction to quit.
- A direction as to the level of damages to be paid to either party.
- A declaration that the amount of rent set is or is not a market rent.
- That a specified amount of rent or charge be paid.
- A direction in respect of the return of a deposit or part of a deposit.
- A declaration re. the right to return or continue in occupation of a dwelling.
- That a condition or term of a Lease or tenancy agreement is invalid.
There is a limit of €20,000 on damages that may be awarded by the tribunal. The right of appeal from the decisions of the tribunal is limited to an appeal to The High Court on a point of law only, which would make it very expensive to challenge the decisions of the tribunal.
The Circuit Court has the power to enforce any Orders made by the tribunal.
Registration of Private Residential Tenancies (Part 7 of the Act)
The Act establishes a private residential tenancies register and the keeping of a separate public register. The Act provides that a landlord must register a tenancy within one month of the commencement of the said tenancy and there are fees payable in respect of same.
It is clear from the above summary that the Residential Tenancies Act, 2004 has made significant changes to the existing landlord and tenant legislation and should be carefully considered by both landlords and tenants alike before they enter into tenancy arrangements. It places a greater onus on landlords to register their tenancies and provides for criminal sanctions if they do not comply with the provisions of the Act.
While all care has been taken by the Author to ensure that there are no errors or omissions in this Article the Author will accept no Liability whatsoever if any reader relies on the provisions contained herein. Independent Legal advice should be sought before reliance is placed on same.
