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When a dispute flares up between a landlord and tenant, that matter is supposed to be settled at the Residential Tenancies Board (RTB).
And, as the body’s website says: “The dispute resolution process concludes by issuing a Determination Order.”
Only, for many landlords and tenants who see cases through the RTB, it doesn’t conclude there. That can be just the beginning of the battle.
Both tenants and landlords say that determination orders issued by the RTB are often ignored by those who lose, with awards and damages left unpaid unless they are chased through the courts.
RTB board meeting minutes from February 2021 show members discussing concerns around determination orders being ignored. “This issue […] could undermine the credibility of the Board,” said the chair Tom Dunne.
In later meetings, members talked about possible options for tackling the issue, including instalment orders, when the judge orders the person to pay off the debt in instalments, and judgement mortgages, when a charge is put on a property, which has to be paid when the property is sold.
Also on the list of ideas was the execution of goods, meaning the seizure of someone’s belongings if they don’t pay, as well as potential changes to the legislation. It has also been running a pilot project with mediators.
“The RTB continues to consider options in relation to the effective execution of our statutory functions,” said a spokesperson on 7 February.
Signs of Discontent
The RTB doesn’t record how many determination orders people complied with.
But figures suggest that around 15 percent of those who won cases asked the RTB for assistance to go to court to enforce them.
In 2021, the RTB issued 2,759 determination orders, according to its annual report. It received 412 requests for legal assistance to pursue enforcement proceedings.
The Irish Property Owners Association wants urgent research into the level of compliance with determination orders, says Mary Conway, its chairperson, particularly in cases of rent arrears and deposit retention.
In their members’ experiences, awards for rent outstanding and damages are not collectable, she says. “Even where determination orders are in place.”
Tenants say they can have a hard time chasing what they have been awarded, too.
Adrieanne McDermott says she won a case in the RTB, filed after her landlord withheld her deposit.
The RTB ruled that she should get €1,280, made up of €900 that was the “unjustifiably detained” deposit and €500 for the landlord’s failure to maintain the dwelling, offset by €120 awarded to the landlord for damage in excess of standard wear and tear.
McDermott says that getting the money was far from straightforward. “A lot of people don’t have that fight in them,” she says. “There are so many stumbling blocks.”
The landlord said he couldn’t afford to pay it all in one go, and an RTB mediator suggested McDermott accept a payment plan, she says.
She had to chase the payments, she says. “I texted the mediator and the mediator had to get in contact with the landlord.”
Her landlord, Reuben May, said that he didn’t agree with the RTB decision, but he paid McDermott back everything he owed. He had to do it in instalments because he was insolvent, he says.
McDermott says she doesn’t think the system is fair. When it comes to landlords keeping tenants’ deposits, there should be a different solution, she says.
In the UK, deposits for residential tenancies are held by a separate agency, not by the landlord, she says. “There has to be a fair system that actually works.”
The 2011 programme for government promised a tenancy deposit retention scheme – a set-up also advocated for by the housing charity Threshold, among others. But it wasn’t rolled out under that government – or since.
Other tenants report problems chasing money, even after court orders to enforce the determination orders.
In the summer of 2021 Patrick Pluijgers filed a case in the RTB against his landlord, who had given him a false name.
He won the caseand was awarded €2,800. With legal assistance from the RTB, Pluijgers got a court order to enforce the determination order, but the landlord, Kevin Galvin, still hasn’t paid him.
He now intends to take the matter to the High Court, he says. It is more than a year and a half since he filed the case with the RTB.
Conway, chairperson of the Irish Property Owners Association, says: “The dispute resolution process of the RTB is slow and cumbersome.”
IPOA members would also like to see the law changed so that in order to appeal a determination order, the person appealing would have to lodge the money with the RTB, says Conway.
“This gives protection to both sides and prevents the RTB from being used as a delaying tactic by either landlord or tenant,” she says.
Where that is not done the RTB should be able to issue an enforceable determination order, says Conway.
A Live Issue
Members of the RTB’s board talked about the issue of enforcing determination orders at board meetings in 2021 and 2022.
Most of the discussions centred on how it impacts landlords. (Although, 51 percent of those who applied to the RTB in 2021 for legal assistance to enforce determination orders were tenants.)
“There is a perception in relation to rent arrears and overholding that landlords find it impossible to get their money,” say the minutes of the RTB board meeting in March 2021.
“The Chair suggested that if it became known amongst private tenants that enforcement orders are not being observed, this would cause concern for the Board,” says the minutes of a board meeting in February 2021.
The RTB board members discussed the fact that sometimes the court doesn’t enforce the determination order but suggests more mediation or negotiation, instead.
“The Chair stated that the Board should be concerned as the determination order should be the end of the process and if the Courts are not enforcing the determination orders they are doing the work of the Board again,” it says.
At a meeting in July 2021 several ways forward were considered. Among them was the use of mediators.
At a meeting in November 2022,the board heard that a pilot was underway to improve compliance with determination orders with mediators.
Two experienced mediators worked on 97 cases and secured an 80 percent compliance rate, say meeting minutes. Staff “noted significant cost savings from the pilot compared with the legal enforcement route”, it says.
The RTB spent almost €439,000 on legal fees for enforcement in 2021 and €757,000 in 2020, says a spokesperson.