A number of changes were introduced to the legislation governing the residential landlord and tenant relationship, these changes increased the obligations and the potential liability of residential landlords.
In addition to changing the law, the 2019 Act also introduced a new complaints, investigations and sanctions procedure. This is a new function of the Residential Tenancies Board (RTB) which means the RTB are now in a position to impose penalties on landlords who are found to have committed improper conduct.
What constitutes improper conduct?
- Failure to comply with the Rent Pressure Zone (RPZ) requirements. This occurs by increasing rent by more than 4% in an RPZ in a 12-month period (24 months for an existing tenancy in an area newly designated as an RPZ).
- Seeking to rely on an exemption to the RPZ requirements, which does not comply with those requirements i.e. falsely claiming that a substantial change in the nature of the accommodation occurred or that no tenancy existed in the dwelling in the 2 years prior to the date the tenancy commenced.
- Failure to notify the RTB about the reliance on an exemption to the RPZ requirements within 1 month from the setting of the rent.
- Failure to register a tenancy with the RTB within 1 month of the tenancy commencing.
- Citing in a Notice of Termination a reason for terminating the tenancy that is false or misleading in a material respect.
- Failure to notify the RTB of changes to certain details of the tenancy (including new rent set, tenant details, landlord details) within 1 month of the change taking effect.
- Failure to offer a tenant their tenancy back when terminated for certain specific reasons (detailed below), where: the tenant provided their contact details to the landlord, in writing, within 28 days from the date of service of the Notice or on final determination of a dispute, if relevant, the reason is no longer relevant, the tenancy was not otherwise validly terminated, the dwelling is available for reletting within the timeframes set out below from the date the tenancy ended
What sanctions apply?
The landlord can be issued with a caution.
The landlord can be found guilty of a criminal offence.
The landlord can be issued with a financial penalty.
The maximum financial penalty is €15,000. The RTB has discretion in imposing sanctions. In addition to the financial penalty, costs of up to €15,000 can also be awarded against the landlord.
The level of the sanction may have a number of factors taken into consideration:
- The gravity of the improper conduct
- Any acknowledgement on the part of the landlord
- Any failure on the part of the landlord to co-operate with the investigation
- The duration of the improper conduct, and
- Any history of the landlord engaging in similar instances of improper conduct
The RTB will publish any sanctions imposed.
*A landlord cannot be found guilty of any criminal offence where it is one and the same as the improper conduct which resulted in a sanction. Equally, where a landlord has been found guilty of a criminal offence, that offence cannot be the subject of a sanction even though it may also constitute improper conduct.
Powers to instigate an investigation. What triggers an investigation?
A complaint does not have to be made for an investigation to be instigated. The RTB can start an investigation on their own volition by using internal RTB records such as the register of tenancies. The new powers of investigation are not only against the landlord but also against their employees and agents or those who are considered to possess relevant information. Investigations are conducted by specially appointed RTB Authorised Officers.
RTB powers include:
- Entering, inspecting, examining and searching any premises where the authorised officer has reasonable grounds for believing that any activity in connection with the letting or tenancy of a dwelling is carried on
- Inspecting and taking copies of records
- Removing and retaining records for as long as is considered reasonable
- Compeling any person at the premises / its owner or person in charge or employed there to assist, inform and produce records
- To requiring a landlord to provide any necessary explanations
Where the relevant person fails to do what is required of them, they can be the subject of a District Court Order compelling compliance. Any person who fails or refuses to engage with the RTB could be subject to a fine of up to €50,000 and / or a maximum of 12 months imprisonment.
While the powers of the RTB are many, they cannot enter a dwelling without a) the consent of the occupant or b) having obtained a warrant.
Result of an invesigation
Once the Authorised Officer has completed the investigation they will produce a Draft Report setting out an account of the investigation and details of the findings and will send this to the landlord and the complainant (if any).
The landlord and the complainant (if any) will then have 21 days from the date of receipt of the Draft Report to make submissions in writing on the Draft Report. The Authorised Officer will consider any such submissions made and make any alteration to the Draft Report if, in their opinion an alteration is warranted.
The final Investigation Report will then be submitted to an independent Decision Maker. The Decision Maker will consider the final Investigation Report and if they agree that a breach has occurred, they can apply a caution or a fine. This fine is paid to the Exchequer.
Where a sanction is imposed, the landlord has a right of appeal to the Circuit Court and any sanction will ultimately be confirmed by the Circuit Court. A further appeal, on a point of law only, is possible in the High Court.
Sanctions are confirmed by the Circuit Court and, once confirmed, will be published on the RTB website.
The consequences of an investigation for a landlord can be serious in terms of costs, time and potential reputational damage.
Unsure Of Your Obligations As A Landlord? Contact IPOA For Support
01-8276000 – Contact Us