As for what "having regard to" means,
(from my post https://www.askaboutmoney.com/threads/rtb-rent-register.243258/page-33#post-1996601)
RTB Rent Register
- Thread starter Sr. Tayto
- Start date
As for what "having regard to" means,
(from my post https://www.askaboutmoney.com/threads/rtb-rent-register.243258/page-33#post-1996601)
You're right, it was @Sr. Tayto
Good point, and considering what the Register produces most of the time, you would be entitled to seriously consider it and then discard it.
Unfortunately, I don't think that is the approach or the interpretation that the RTB have in mind.
So it would behoove the RTB to include the tenancy start date in the information provided!
Or it would behoove the RTB to only produce tenancies which commenced in the last 3 months.
If that is all we can use, why produce earlier ones.
If anyone logs in they might point out to them that its impossible for the rent register to contain current market rents. See what they say for that, or will the questions be selected in advance so they dont have to answer anything hard.
Or have reagrd to it in that rent is not going to be lower than the latest or highest one in a rising market current to the rent can 100% be higher than that one.
Shakespeare
Registered User
- Messages
- 148
Surely an absolute burning platform question is how it is even remotely equitable, or defensible to include in the Rent register (through which private landlords are effectively hog tied to using non-market/out of date/long term RPZ referenced rents to set their new "market" rent), cost rental tenancies that are acknowledged to be 25% below the market !!!
Have I got that correct? (because every day I feel I'm losing my mind as to the absolute farce that is being perpetuated on small private landlords that no one is calling out) - Is there any way to recognise a cost rental tenancy on the RTB's rent register?
outofmymind
Registered User
- Messages
- 134
Is this free for IPOA members or is there an additional fee for the webinar?
Keep in mind that we are hog tied into an eviction ban as well. I don't know which farce is worse.
Sometimes a number of apartments all at the same rent and with an A BER rating come up. That's really the only way you can tell. Interestingly though alot of the comparables to this, PRS apartments, have lower rents!
How about an actual legal case:
Judicial Guidance on the Term “Have Regard To”
The meaning of the expression “have regard to” was recently considered in Cork County Council v Minister for Local Government, Planning and others [1] .…
www.mhc.ie
Relevant case law
The leading authority on the scope of the obligation to “have regard to” remains McEvoy v Meath County Council. In that case, the High Court referred to an earlier Supreme Court judgment in Glencar Exploration plc v. Mayo County Council, in which the Supreme Court noted that where parliament intends for something to be implemented or followed in a binding or strict way with no choice, it will say so. By contrast, where parliament states that a person is to “have regard to” something, this means that they have a choice as to whether and to what extent they should implement or follow it, once they have considered that thing in the particular case in hand.This therefore is the Irish Legal Definition:
- ----the Supreme Court noted that where parliament intends for something to be implemented or followed in a binding or strict way with no choice, it will say so.
- ---- By contrast, where parliament states that a person is to “have regard to” something, this means that they have a choice as to whether and to what extent they should implement or follow it, once they have considered that thing in the particular case in hand.
Conclusion
As long as a landlord looks at the Register (have regard to) we then have a choice on whether we will OR will not follow the rent on the register, because we do not have to. which is what I have consistently stated on here.
Put another way:
If the government had intended a landlord to match the rents on the register, the law would have stated this, but it doesn't.
In my case I looked * at the register so I complied with the 'having regard to, I consulted with my property expert, two in fact, they told me what their expert view of current rents would be and we went with that and achieved them.
* (I actually didn't look at the register myself, as I deal in reality not nonsense, but my agent did the looking at for me as my agent)
This is very important in the link above:
As a landlord, and property expert actually since I'm at this decades ! I've the right to decide what 'weight' I'll give on the rent setting to Market rent. There's an even stronger case for a landlord, because in addition to the 'have regard to' we also have Market rent mentioned. And the RTB cannot change the definition of Market Rent to mean RTB Register rent.
If a tenant or the RTB challenges my Market Rent, they have to prove I didn't have regard to the Register (I'd say at this stage there isn't a person who has looked at the bloody register more times than I !!
- If a decision states that a decision-maker had regard to something, then the onus is on the person challenging that to prove otherwise by evidence.
- The duty to have regard to something doesn't automatically create a duty to give reasons for not giving that matter more weight. That follows from the entitlement of the decision-maker to assess the weight to be given to the various matters which they are considering or “having regard” to.
As a landlord, and property expert actually since I'm at this decades ! I've the right to decide what 'weight' I'll give on the rent setting to Market rent. There's an even stronger case for a landlord, because in addition to the 'have regard to' we also have Market rent mentioned. And the RTB cannot change the definition of Market Rent to mean RTB Register rent.
If a tenant or the RTB challenges my Market Rent, they have to prove I didn't have regard to the Register (I'd say at this stage there isn't a person who has looked at the bloody register more times than I !!
@Bronte
Great work finding that. I will be hard for even the RTB to argue with what the High Court and Supreme Court say.
I think it is very important for a landlord that if they are not using the Rent Register to carefully document and keep a record of why. Maybe email yourself or include your reasons with the Rent Setting Form. That demonstrates clearly that you did have regard to it and decided, having done so, that the information it contained wasn't useful.
More paperwork unfortunately!
Great work finding that. I will be hard for even the RTB to argue with what the High Court and Supreme Court say.
I think it is very important for a landlord that if they are not using the Rent Register to carefully document and keep a record of why. Maybe email yourself or include your reasons with the Rent Setting Form. That demonstrates clearly that you did have regard to it and decided, having done so, that the information it contained wasn't useful.
More paperwork unfortunately!
The RTB cannot argue a Supreme Court judgment. In any case they wouldn't be that stupid, nor would they waste money on the legal fees.
When you send in your notification you've to attach 3 from the Register, but nothing stopping you sending them even more stuff, like DAFT ads and the like, to show you've 'had regard' to lots of things, that you're taking the job of setting rent seriously. And then keep a record of what you've sent.
When you send in your notification you've to attach 3 from the Register, but nothing stopping you sending them even more stuff, like DAFT ads and the like, to show you've 'had regard' to lots of things, that you're taking the job of setting rent seriously. And then keep a record of what you've sent.
LarryScott
Frequent Poster
- Messages
- 527
A concern I would have is that the law question is only relevant if challenging an RTB verdict (initial and tribunal) in court.
If the RTB say that they decided, as per their policy, to give "significant" weight to the RTB register, and thus rule that market rent is lower than the daft rent presented by the landlord, then the landlord has to challenge that in court.
In that case, does the RTB get the benefit of the doubt and the landlord have to show they were unreasonably using the RTB register.
It is definitely the case that the landlord (or their agent) must consider the RTB register information, if only to subsequently give it low weight.
Arguing before an RTB arbitrator that the RTB register is a low quality source and should have low weight could be difficult.
That is an issue alright and is the practical side of it.
The RTB is making up the legal rules here. It says that the Register is practically the sole tool to set the rent, that is not what the legisation says. Telling the RTB that or arguing it in front of an RTB Tribunal would be pointless. You would have to go the High Court to get any sort of fair hearing on the point.
It wouldn't be difficult to argue if someone was thoroughly prepared - and prepared to carefully make fundamental points about things like recursive loops, historic prices, rising market, lack of information regarding quality etc, etc....
What would be "difficult" is getting an RTB arbitrator to abandon what is clearly a politically inspired agenda to find a way to suppress rents while allowing Ireland's rental market to be marketed internationally as allowing "market rent".
It would require effectively a test case where a properly prepared and briefed landlord goes through the process - but with no expectation the RTB arbitrator will act properly. The whole point would be to simply move on to High Court.
LarryScott
Frequent Poster
- Messages
- 527
Right, but that could take a while. It might be the only way. The RTB have a lot of short-term power here.
I think we'll be waiting for IRES Reit or similar to take this case. It is well beyond the means of the average small landlord (something the RTB and the government are likely betting on).
If the Funds can get their own rents up to sufficient levels, they won't bother with a challenge though.
Again, only a Fund can do that. The average average landlord has neither the money or the time to mount a case like this.