Landlord behind Swords evictions has issued a steady drip of similar notices across its properties

Jekaterina Deja got an eviction notice in January, telling her she had to leave her home, a two-bed apartment where she’d lived for 10 years, on Bramley Terrace in Applewood.

It gave her until 24 August to leave. But she is still there at the moment, she says, trying but failing to find somewhere she can afford to move to.

“I’m on all the sites every day, just trying to find a place. It’s just impossible at the moment,” said Deja.

The same quarter that she got her notice, Home Club Limited, the property manager for company landlords owned by the same Luxembourg fund – or the landlords themselves – served similar notices to 51 other households scattered around its many properties.

The quarter before that, at the end of 2022, they had served 24 notices. And the quarter after, they served 13, show figures released by the Residential Tenancies Board (RTB).

These 89 households are just a fraction of the 14,817 that were served notices to quit in the nine months between October last year and June this year.

But it still could be, say, 200 people, says Gavin Elliott, a lawyer with the independent centre Community Law & Mediation.

And those people have been given eviction notices on grounds that have already been acknowledged by the government as having no place in the modern rental market, he says.

All of these notices were issued on the same grounds: that these tenants have come to the end of what is known as a “Part 4 tenancy cycle”, a period during which a landlord can terminate without any reason.

In December 2021, the government changed the law to end this practice – but only for new tenancies, those starting after June 2022.

Removing the provision was laudable, says Elliott. “A very good idea and very sensible policy from the government.”

“But at the same time, the fact that it was only applied to tenancies after June 2022 means that there’s still an awful lot of people out there who are living in a situation that by the government’s own admission isn’t appropriate in the rental sector,” he says.

That there is a steady drip of these notices to quit from subsidiaries of LRC RE-1 – a fund with hundreds of rental properties around Dublin – on these grounds is perplexing for another reason.

Rent pressure zone laws mean that the rent for a property can’t generally be hiked more than the rate of inflation or 2 percent a year – whichever is less. That’s regardless of whether a tenant is new or not.

So if that is the case, and if they aren’t evicting tenants on the grounds that they want to sell, or to move in family members, or because of anti-social behaviour, what is the motivation?

“No Fault” evictions

Housing Minister Darragh O’Brien announced a change in the law in December 2021, getting rid of the provision letting landlords terminate tenancies on the grounds that a Part 4 tenancy was up.

At the time, not many landlords were doing that anyway. In 2021, there were 66 cases the entire year, according to RTB figures.

Opposition politicians focused during Dáil debate on how O’Brien said this would create tenancies of indefinite duration – even though it left grounds to evict on sale or family use.

Nobody really talked about why it would only apply to tenancies that were created after June 2022.

O’Brien did say that the law had been drawn up based on work with the attorney general and taking into account the rights of tenants and property owners.

“The aim is just transition to tenancies of unlimited duration, while also respecting property rights, thereby reducing the potential for any legal challenge to this legislation,” said O’Brien.

The move towards tenancies of indefinite duration was significant and important, he said.

“Any measure we take in the rental market has to be calibrated and has to take into account the individual mom-and-pop landlords who own these properties,” said O’Brien. “We cannot tread on their rights either. Any legislation is potentially open to challenge.”

“Worse than that, we could continue to see a flight of decent landlords from the market, and there are decent landlords in the market,” he said.

Can the law change?

A spokesperson for the Department of Housing didn’t address a query asking for more detail on why it can’t get rid of the Part 4 provision for all tenancies, not just new ones created after June 2022.

Eoin Ó Broin, the Sinn Féin TD and housing spokesperson, said he suspects that housing officials or the attorney general argued that to apply the change retrospectively would have been problematic.

But that doesn’t hold up, he says. “I don’t believe there’s any impediment. Because we’ve had a lot of changes to the Residential Tenancies Act which directly and retrospectively apply to all existing tenancies.”

Like, he says, bringing in Rent Pressure Zones and the changes under them, and lengthening the notice period for evictions, and putting in the ban on evictions.

Rachael Walsh, associate professor of property law and constitutional law at Trinity College Dublin, said you can only speculate as to whether and how advice from the attorney general fed into the political decision.

But looking at the law in the area, concern about applying changes retrospectively would make sense as the reason, said Walsh.

Generally speaking, where measures would retrospectively change or alter existing contracts, the approach has been to say that that would be unconstitutional, she says.

“The case law is quite strong in protecting against retrospective changes to contractual agreements, and the rights if you like, in a contract are recognised as property rights,” she says.

The government view has been that changes that would interfere in existing contracts would potentially be unconstitutional, she says. “That is, I suspect, is the thinking driving the approach that has been taken here.”

“Now, there is room to argue with that interpretation,” she says.

If you take the position that rights in contract are protected as property rights and then look at what the constitution says about property rights, she says, it doesn’t protect them absolutely.

“It provides that property rights are subject to regulation to secure the common good and social justice,” she says.

If changes ended up before the court, they would ultimately be subject to a proportionality test, she says. “The key question that the courts would usually ask is, ‘Is this a proportionate interference in the rights that are being affected, given the public interest that is at stake?’”

Bringing in a right to housing could tip the scales even further away from an absolutist interpretation of property rights, she said.

You would still have property rights on one hand and the broad state power to regulate property rights that already does exist on the other hand, she said. “But also having in the mix the fact that housing rights are separately and succinctly protected in the constitution.”

How much impact it could have would depend on how the right to housing is formulated, she says. “We don’t really know as of yet where any proposal on this issue may land in the Irish context.”

Ó Broin, the Sinn Féin TD and housing spokesperson, says that as he sees it, not being able to end tenancies based on the end of a Part 4 cycle should apply to all existing tenancies. “Not just new ones.”

Subsidiaries of LRC Group own hundreds of apartments across Ireland, and hold property worth almost €620 million, according the fund’s 2022 financial statements.

In the complex where Deja lives in Applewood, its subsidiary Jersia Limited owns 47 homes, bought in January 2020 for €8.9 million, an average of €190,000 each.

One of the upsetting things for Deja, she said, is how she can be evicted even though she felt she had been a model tenant, worked hard and paid all her bills. “It just feels unfair.”

Why do it?

Ó Broin, the Sinn Féin TD, said that one reason he thinks the numbers of evictions based on a Part 4 tenancy ending were in the past so low is that it just wasn’t the reason that landlords evicted.

There are other grounds after all – if a landlord wants to sell or a family member to move in. It begs the question as to why LRC RE-1 is seeking to end Deja’s tenancy, and the 88 others it has issued in recent times.

Home Club Limited, the property manager, didn’t respond to email queries asking, among other things, why it was evicting tenants, or to answerphone messages.

In July, organisers for the Community Action Tenants Union wrote to Home Club asking that they withdraw Deja’s notice and offer her a new tenancy.

A Home Club representative wrote back to say no. “This property is scheduled for upgrade works and these are not works that can be done with a tenant in occupation,” the email says.

By law, landlords can evict on the grounds that they need to substantially refurbish the property, but they need to show that the tenants health would be at risk if the works were done with them there and that it would take at least three weeks. They also need to offer the home back to the tenant after the works.

Those aren’t the grounds that Deja has been evicted on. “It needs work,” she says, of her home. “But not major.”

The boiler is old and needs replacing, she says, and the kitchen is pretty outdated and the immersion just gobbles up energy. “Are they gonna do that? I don’t know.”

Adding charges

Deja pays €1,446 a month for a two-bed apartment, she says. She wonders whether the tenant who comes next, she says, will be paying substantially more.

Rent increases for homes within rent pressure zones like Dublin are capped, with some exemptions, at whichever is less, either 2 percent a year or the rate of inflation. That holds, even if the tenant changes.

But there is another way to get tenants to pay more.

In April 2018, Jersia Limited bought the block of 47 homes at New Maltings, a corner block of apartments on Usher’s Island, for €7.1 million, an average of €151,000 an apartment.

In September 2017, when it was put up for sale, the tenant living in apartment 211 was paying €750 a month, a sales brochure said.

In May 2021, the property was being advertised on Rent.ie for €1,385, which is 85 percent more.

In June 2021, a spokesperson for LRC Group said that the figure in the brochure was the rent. But “the advertised figure includes more than just the rental component – such as car parking and service charges (which are all listed on the lease agreement)”.

A spokesperson for Home Club didn’t respond to queries as to whether it will be adding charges to contracts for new tenants who move into the homes vacated by the long-term households it is evicting based on the ending of a Part 4 tenancy.

Exactly what can be added to rent in charges is a bit of a grey area.

In the past, a spokesperson for the Residential Tenancies Board said that tenants can’t be made to pay extra for things that they are entitled to under the Residential Tenancies Act 2014.

And “if extra service charges are to be paid on top of rent, it must be clearly set out in the lease agreement”, they said.

Elliott, the lawyer at the Community Law & Mediation, said that there is nothing necessarily unlawful about charges if the tenant and landlord agree in advance and they don’t suddenly appear in the middle of a tenancy.

But “I’d bracket that a little bit and just sort of add that there are controls on rent”, he says. “And those controls apply to the property. So rent controls are kind of agnostic as to the occupancy of the dwelling.”

In other words, the rent can only go up for a dwelling a certain amount each year no matter who lives there, he says.

“I would suggest that if, from one tenancy to another, what had previously been included in rent was now a charge, extra, that you know, certainly arguably that’s a rent increase and potentially an unlawful rent increase,” he said.

Imagine he was renting a property and parking and electricity were included in the rent, and then he moved, he says. “And you’re paying the same rent as I was but now you’re paying extra for a car parking space and extra for electricity.”

That could be unlawful, but the argument would have to be made before the RTB to see if it finds that, he says.

Elliott says that he tries to avoid slippery-slope arguments. But if you allow extra charges which were previously lumped into the rent to be hived off, you do risk making rent controls a nonsense, he said. “Because everything is an extra charge.”

For Elliott, that goes to the lack of a definition for rent within the act.

“It’s unusual that in such a tightly regulated market, such a tightly regulated sector, with this piece of legislation that is so complex at this stage, there aren’t some basic definitions in there,” he says.

Ó Broin, the Sinn Féin TD, said he would think that whatever you pay to your landlord would be your rent, however defined. “And if not, I’d be very interested to know because that would need a change legislation-wise.”