N.J. Kenny thought she had a stable home: a small rented studio in Portobello.
When her landlord hiked her rent by 40 percent back when that was legal, she complained publicly about it, but with Dublin rents skyrocketing, she was still paying less than many others in the city.
Then, last December, Kenny got a notice saying she was being evicted, because her landlord was going to sell the property.
“My blood just turned cold,” she says. “I thought, ‘What the hell am I going to do, I can’t afford anywhere in Dublin?’”
A new law was set to come in on 24 December, limiting Dublin landlords to increasing rents by a maximum of 4 percent per year from then on.
Kenny thinks her landlord evicted her and other tenants in her block in order to hike up the rent for the apartments in advance of that. Her landlord said he simply intended to sell and needed the long-term tenants out.
In any case, it turns out it was easy enough to evict her. The landlord just said he was selling – he didn’t even have to show any evidence of that, she says.
John-Mark McCafferty, chief executive of of the national housing charity Threshold, says “illegal evictions are increasingly a cause for concern”.
The Burden of Proof
In an effort to stay in her home, Kenny took her suspicions to the Residential Tenancies Board (RTB), alleging that the landlord was not in fact selling the building.
But she lost her case at the RTB. It seems it was up to her to prove that the landlord was not planning to sell, rather than up to him to show that he was. “The law is stacked against the tenant,” she says.
Kenny, a member of Dublin Tenants Association, describes herself as “a bit of a housing nerd”. “I know the law,” she says. “But what about your average tenant? They wouldn’t have a hope.”
She had proof that the tenants in the flat above her had been evicted as the building was to be sold, but the landlord had rented their apartment out to new tenants. She thought this was evidence that he didn’t intend to sell.
The landlord said the buyers didn’t want long-term tenants in place. He argued that he did plan to sell, and that he would only have to give the new tenants 28 days’ notice, whereas he would have had to give longer-term tenants more notice.
The adjudication report from the RTB, issued on 30 March, accepted the landlord’s explanation. It says: “The Applicant has failed to prove that the Respondent lacks a good faith intention to sell the property.”
“The basic principle is that the burden of proof would lie with the person asserting that the thing that was supposed to be done, on foot of the notice, was not actually done,” says a spokesperson for the RTB.
It is up to the applicant who is challenging the eviction notice to demonstrate that the notice isn’t valid. To do that they have to show that the landlord isn’t selling, he says.
The adjudication did state that if Kenny’s landlord didn’t sell within three months of her eviction date, she “may be able to bring a complaint to the board”.
Kenny got six months’ notice on 1 December, so her eviction date was 1 May. Three months on from the eviction date, the property hasn’t been sold, according to the Residential Property Price Register.
The owner of the property, Joe McDonagh, said he intends to sell the property but that the sale hasn’t been confirmed yet.
“Look this has gone through the system, it’s gone through due process,” he says.
Fintan McNamara, director of the Residential Landlords Association of Ireland (RLAI), says that there are cases when people intend to sell, and put the property up for sale, but don’t get the offer they expect. So they might let it out again, he says.
Across the city, other tenants also say they have been evicted on the grounds that the landlord was selling, but they are not convinced that that was the real reason for the eviction.
Hilary Murray was renting a family home with her husband and children in Marino, and she says her landlord wanted to raise the rent.
When she refused to pay the increased rent, she then got a notice of eviction on the grounds that he was selling. She was disappointed she didn’t have more protection under the law.
“We have lived in Marino for the past five years, my son was born in Marino and we both work locally, my kids go to the local school,” she says.
“After five years of renting we were told to leave our home as the owners wanted to sell. You then find yourself facing the possibility of having to uproot yourself and your kids to a new community,” she says.
Murray and her husband then faced stiff competition to secure another rental property in the area. She says they were very lucky to get one, although they are now paying more rent for a lesser property, she says.
She worries about the future as a renter with children. “Who’s to say this won’t happen in two years’ time again? Do we move the kids and our jobs on a rolling basis? And we are not unique,” she says.
(This property hasn’t been sold yet, according to the Residential Property Price Register, but the three months hasn’t passed yet since Murray’s eviction date.)
Efe Enogieru’s story is similar to Murray’s. Enogieru says her landlord first attempted to evict her illegally by simply throwing her belongings out of the place she was living.
When she contacted the Gardai and Threshold, the landlord then gave her a letter saying that she was evicting her because she wanted to sell the property.
Enogieru was sub-letting, so she didn’t have a lease from the landlord, and so she couldn’t enforce her rights, she says.
Her former landlord couldn’t be reached for her side, as the phone number Enogieru has for her is no longer in use.
Although Enogieru was evicted in March, according to the Residential Property Price Register, her former home has not yet been sold.
Effect on Homelessness
“Our research repeatedly shows that the largest single cause of family homelessness is landlords selling up and using loopholes in the law to evict families,” says Mike Allen, director of advocacy at Focus Ireland.
Towards the end of 2016, Focus Ireland proposed amendments to the Residential Tenancies Act 2004 to close these “loopholes”, says Allen, but these were voted down in the Dáil by the government, and Fianna Fáil also failed to support them too.
Changing the law to keep landlords from evicting tenants on grounds that they are selling the property would be the single most effective policy change the government could take to prevent homelessness and ease the housing crisis, Allen says.
“The government needs to wake up to the scale of the crisis we are facing and start taking effective and radical action,” says Allen.
But McNamara of the landlords association says that would be bad for business. A high percentage of purchasers are buying the house to live in, so wouldn’t want sitting tenants, he said.
“The idea of the landlord not being allowed to get vacant possession could seriously devalue a lot of rental properties,” he said.
It wouldn’t be wise for a landlord to try to game the system and claim to sell but have no intention, he says. “It would be foolish of him as there is a risk of being caught out.”
A spokesperson for the RTB says that if a tenant is wrongly evicted on the grounds that the property is being sold, and later finds out that it wasn’t, they can seek damages.
“If a tenant receives such a notice, duly vacates, and then discovers that the dwelling was not actually sold but rented again, the tenant will have recourse to seek damages under Section 56” of the Residential Tenancies Act 2004, he says.
It will then fall to the landlord to show that he tried to sell the property, by putting it on the market or hiring an estate agent, for example, he says.
A spokesperson for the Department of Housing says that a tenant who has been wrongly evicted should complain to the RTB.
“The RTB, if it considers it proper to do so, may make a direction that damages are paid to the tenant; that the tenant be permitted to resume possession of the dwelling, or both of the foregoing directions,” says the spokesperson.
But McCafferty, the chief executive of Threshold, says that in order to bring a case the tenant would need to show that the landlord didn’t intend to sell when he filled out the declaration. “This allows considerable wriggle room, as intentions can change,” he says.
And it can be especially hard to prove because details often only come to light after the tenant has moved on, or is focused on finding a new home, McCafferty says.
Stephen Faughnan, chairman of the Irish Property Owners Association, says he thinks that landlords should have to submit proof they are trying to sell, a “letter of engagement of the selling agent or other form of selling”.
If a landlord handed out a notice to evict in order to skirt the law capping rent increases at 4 percent per year, by hiking the rent for the next tenant, that would be illegal.
“The landlord must furnish the tenant, in writing, with the amount of rent that was last set under a tenancy for the dwelling,” says a spokesperson for the Residential Tenancies Board.
If a tenant is being charged more than the 4 percent increase they can lodge a dispute with the Residential Tenancies Board, the spokesperson says.
“But it is not clear that they can demand proof of this,” says McCafferty. “The tenant will usually have to accept the word of the landlord as to the previous rent.” This is a major weak point in the legislation, he says.
And with housing so scarce in Dublin, tenants are often fearful of trying to insist on their rights, worrying that they might not get offered a place they’re going for, or might get evicted from a place they’re in as retribution.
However, a spokesperson for the Department of Housing says that the number of complaints relating to rents has increased by 135 percent since the 4 percent rule was introduced, indicating that people are using the disputes process, he says. (He didn’t say what the numbers behind the percentage increase are.)
The department is reviewing the rent-predictability measure at the moment, and has conducted public consultation on them, he says.
It got 73 submissions and plans to issue a report on the review in the autumn. Depending on the results of the review, legislative amendments could be made if required, he says.
[UPDATE: This article was updated at 11.05am on Wednesday 9 August to include comments from the Irish Property Owners Association and the Residential Landlords Association of Ireland.]