Irish Times: "Is the RTB fit for purpose?"

[Brendan Burgess]

The Residential Tenancies Board: Is it fit for purpose?

The quasi-judicial public body set up under the Residential Tenancies Act 2004 has been criticised for its inaccurate reporting figures and delays in the dispute resolution process

www.irishtimes.com

But the article seems to imply that its main purpose is to protect tenants from ever being evicted and as some tenants are being evicted, it's not fit for purpose.

But the landlords are critical of the response times as well:

Similarly, Mary Conway, chairwoman of the Irish Property Owners’ Association (IPOA), said when rent arrears accrued and the RTB determined the tenant must pay back these arrears to the landlord, in 99 per cent of cases, that money was not received.

“If they don’t have the money, they don’t have the money. It’s almost always written off as a loss,” she said. “The biggest problem, though, is getting anything sorted out. It takes weeks to get a response to an email. Everything is so complex and takes so long.”

 

[ClubMan]

But the article seems to imply that its main purpose is to protect tenants from ever being evicted and as some tenants are being evicted, it's not fit for purpose.

That's not their officially stated main purpose.

About RTB | Residential Tenancies Board

The Residential Tenancies Board, also known as the RTB, is a public body set up to support and develop a well-functioning rental housing sector. Our remit extends to the private rental, Approved Housing Body (AHB) and Student Specific Accommodation sectors.

www.rtb.ie

 

[DannyBoyD]

Simple answer to the question asked by IT headline is "No".

But having said that, it's bad by design; poor operational structures don't help, but the fundamentals are wrong.

 

[Right Winger]

I had to laugh at this bit. Unbelievably, it's actually written by a solicitor.

“In the view of the RTB, once the notice of termination is drafted and served in compliance with the rules, as set out in the 2004 Act, they are satisfied that the order is lawful. In their own view, the RTB has no scope for ruling on arguments of fairness, or matters beyond the narrow interpretation of the Act, such as my client’s having lived in the property all their lives.”

The RTB implements the law; it doesn't write it. If a landlord (or tenant) is fully in compliance with the law, it would be farcical for the RTB to invoke some nebulous doctrine of fairness to rule against them. And even if it did, it would be swiftly shot down by the High Court on a point of law.

 

[Brendan Burgess]

Hi RW

But let's look at it from the landlord's pov.

If there was a minor technical fault in the landlord's notice to quit, that had no material implication, if the RTB had the right to rule, that as a matter of fairness, the notice to quit was valid, would you support that?

My own view is that in matters of consumer law generally, the principle of fairness should apply, but to both sides.

Brendan

 

[Purple]

Hi RW

But let's look at it from the landlord's pov.

If there was a minor technical fault in the landlord's notice to quit, that had no material implication, if the RTB had the right to rule, that as a matter of fairness, the notice to quit was valid, would you support that?

My own view is that in matters of consumer law generally, the principle of fairness should apply, but to both sides.

Brendan

But where the RTB is concerned that principle only applies to the tenant. Focus Ireland and the other "Charities" who make a living in this area are pretty much part of the process, acting with the RTB on behalf of tenants against landlords.
I say that as a tenant.

 

[Right Winger]

Hi RW

But let's look at it from the landlord's pov.

If there was a minor technical fault in the landlord's notice to quit, that had no material implication, if the RTB had the right to rule, that as a matter of fairness, the notice to quit was valid, would you support that?

My own view is that in matters of consumer law generally, the principle of fairness should apply, but to both sides.

Brendan

The Act already provides for that in certain cases. Section 64A, otherwise known as the slip rule, allows for minor errors in a Notice of Termination to be corrected. This is what the Oireachtas has enacted and this both grants and limits the powers of the RTB to ignore minor technical faults. It isn't open to the RTB to grant itself a wider power to implement some idea of fairness. It only has the powers the Oireachtas chose to confer upon it. If the Oireachtas intended the RTB to apply a general concept of fairness, overriding the technicalities of the Act, it could have done so. The fact that it didn't generates a presumption that the RTB has no such power.

Maybe it should have, but that's a matter for the legislature.

Slip or omission in notice of termination

64A. On the hearing of a complaint under Part 6 in respect of a notice of termination, an adjudicator or the Tribunal, as the case may be, may make a determination that a slip or omission which is contained in, or occurred during the service of, the notice of termination shall not of itself render the notice of termination invalid, if he or she or it, as the case may be, is satisfied that—

(a) the slip or omission concerned does not prejudice, in a material respect, the notice of termination, and

(b) the notice of termination is otherwise in compliance with the provisions of this Act.

 

[lff12]

That's not their officially stated main purpose.

About RTB | Residential Tenancies Board

The Residential Tenancies Board, also known as the RTB, is a public body set up to support and develop a well-functioning rental housing sector. Our remit extends to the private rental, Approved Housing Body (AHB) and Student Specific Accommodation sectors.

www.rtb.ie

I think this is a point that often gets missed.

 

[lff12]

But where the RTB is concerned that principle only applies to the tenant. Focus Ireland and the other "Charities" who make a living in this area are pretty much part of the process, acting with the RTB on behalf of tenants against landlords.
I say that as a tenant.

Have you ever actually asked for their help? I did so about 19 years ago during a dispute over electricity (my landlord started charging me 2x the ESB rate). Threshold basically told me there was nothing that could be done, bye.
Don't confuse advocacy with direct action or intervention.
And incidentally, both Focus and Peter McVerry Trust have over 100m in property assets, so they are also huge landlords and property owners in their own rights as well.

 

[Purple]

Have you ever actually asked for their help?

I'm aware of a few cases where tenants severely damaged their apartments then took their landlord to the RTB to get them to do repairs and won their cases.

And incidentally, both Focus and Peter McVerry Trust have over 100m in property assets, so they are also huge landlords and property owners in their own rights as well.

I've no time for Focus Ireland or McVerry.

 

[cremeegg]

Hi RW

But let's look at it from the landlord's pov.

If there was a minor technical fault in the landlord's notice to quit, that had no material implication, if the RTB had the right to rule, that as a matter of fairness, the notice to quit was valid, would you support that?

My own view is that in matters of consumer law generally, the principle of fairness should apply, but to both sides.

Brendan

The debate between equity and law is an old one.

It is generally resolved that it is up to the courts to implement the law. It is up to the parliament to ensure that laws are fair.

 

[Purple]

The debate between equity and law is an old one.

It is generally resolved that it is up to the courts to implement the law. It is up to the parliament to ensure that laws are fair.

But it's up to the Courts to apply the law fairly and the government should ensure that the public bodies they have in place also act in a fair and equitable manner. I don't believe that is the case with the RTB.

 

[Right Winger]

But it's up to the Courts to apply the law fairly and the government should ensure that the public bodies they have in place also act in a fair and equitable manner. I don't believe that is the case with the RTB.

That's interesting. I believe that the law is tilted hugely in favour of tenants. I don't see any evidence that the RTB does anything beyond that to further tilt the playing field. In other words, it applies the law as it is. Any unfairness derives from the law itself, not its application by the RTB.
Would you disagree? Why?

 

[NoRegretsCoyote]

In other words, it applies the law as it is. Any unfairness derives from the law itself, not its application by the RTB.

I disagree. The law is tenant friendly but still leaves a lot to the RTB to adjudicate.

From two personal experiences I found the RTB came down (and came down heavily) on the side of the tenant. One was in regard to communication around a notice period and the other definition of wear and tear.

I would compare it a bit to the FPSO where they tend to favour the consumer over the provider all else equal.

 

[Purple]

That's interesting. I believe that the law is tilted hugely in favour of tenants. I don't see any evidence that the RTB does anything beyond that to further tilt the playing field. In other words, it applies the law as it is. Any unfairness derives from the law itself, not its application by the RTB.
Would you disagree? Why?

A colleague went to a meeting with the RTB. The RTB person and the Focus Ireland activist met the Tenant before the meeting and all sat on the same side of the table and acted in unison during the meeting. The RTB person and the Focus Ireland activist acted like old friends. After the meeting, whilst still inside the building, the partner of the tenant made serious threats to my colleague, including killing him and his children. The RTB woman said that he was "just emotional" and refused to call the police. The tenant had done serious damage to the apartment and then refused to pay rent until the damage was repaired at the landlords expense. The RTB sided with the tenant.

 

[Right Winger]

A colleague went to a meeting with the RTB. The RTB person and the Focus Ireland activist met the Tenant before the meeting and all sat on the same side of the table and acted in unison during the meeting. The RTB person and the Focus Ireland activist acted like old friends. After the meeting, whilst still inside the building, the partner of the tenant made serious threats to my colleague, including killing him and his children. The RTB woman said that he was "just emotional" and refused to call the police. The tenant had done serious damage to the apartment and then refused to pay rent until the damage was repaired at the landlords expense. The RTB sided with the tenant.

That's dreadful stuff. All I can say is my own experience has been different. Your colleague should have complained formally to RTB and separately reported the threat to An Garda Siochana.

I disagree. The law is tenant friendly but still leaves a lot to the RTB to adjudicate.

That's a valid point.

From two personal experiences I found the RTB came down (and came down heavily) on the side of the tenant. One was in regard to communication around a notice period and the other definition of wear and tear.

The definition of normal wear and tear is well settled in case law. Notice periods are very precisely set out in law and there should be very little left to discretion.

I would compare it a bit to the FPSO where they tend to favour the consumer over the provider all else equal.

The provider is generally held to a higher standard of documentation and needs to have their ducks in a row. Many landlords (and finance organisations too I suspect) are a bit sloppy with paperwork and it comes back to bite them. A clever consumer/ tenant can take advantage of this.

 

[NoRegretsCoyote]

The definition of normal wear and tear is well settled in case law.

Where can I find this? When I went looking on the RTB website (albeit years ago) it was vague, and I suspect deliberately so.

Notice periods are very precisely set out in law and there should be very little left to discretion.

I won't go into too much detail but there was informal communication between landlord and tenant which the RTB regarded as amounting to formal notice within the meaning of the RTA and in favour of the tenant. If the situation had been reversed I strongly doubt it would have been interpreted as being in favour of the landlord.

The provider is generally held to a higher standard of documentation and needs to have their ducks in a row.

Generally I'm in favour of the little guy who is up against a large organisation with a legal department and a huge budget. The issue is that many landlords are not sophisticated people and the law (both on paper and interpreted by the RTB) treats them as if they were large organisations. I don't think this should be an excuse for abuse by landlords, but the compliance burden goes in my view beyond what a small-time landlord can be reasonably expected to be familiar with.

 

[Leo]

That's dreadful stuff. All I can say is my own experience has been different. Your colleague should have complained formally to RTB and separately reported the threat to An Garda Siochana.

I attended an RTB meeting in support of a friend a few years back and had a similar experience. The tenant complained over withholding of deposit, and the landlord showed pictures of damaged furniture and also detailed furniture that was stolen from the house. RTB found in favour of the tenant. That tenant also threatened to burn my friend and her family out of their home, RTB or Gardai wanted nothing to do with it.

 

[Right Winger]

I attended an RTB meeting in support of a friend a few years back and had a similar experience. The tenant complained over withholding of deposit, and the landlord showed pictures of damaged furniture and also detailed furniture that was stolen from the house. RTB found in favour of the tenant. That tenant also threatened to burn my friend and her family out of their home, RTB or Gardai wanted nothing to do with it.

Wow! That's crazy stuff. On the damage, sometimes the RTB will look for before and after photos, copies of inspection reports etc. If the landlord hasn't got this, it won't go well.

On the threats, that really needs to be escalated at both RTB and AGS management level.

 

[Leo]

Wow! That's crazy stuff. On the damage, sometimes the RTB will look for before and after photos, copies of inspection reports etc. If the landlord hasn't got this, it won't go well.

On the threats, that really needs to be escalated at both RTB and AGS management level.

In the case I was involved in, the landlord had before and after photos, well, only had photos of the stuff that wasn't stolen but it made no difference. The tenant even submitted some before and after photos themselves that actually confirmed damage they had done. We walked out of the meeting confident there was no doubt but that they would find in our favour!