Mick: The Residential Tenancies Board Is a Good Idea, Flawed in Practice

The Central Statistic Office’s Housing Profile, published last Thursday, provided further evidence of the exponential growth of the rental sector in Ireland.

Home ownership is at its lowest rate since the early 1970s, and renters have become the majority in some urban areas. What the CSO figures tell us is that we are not, as sometimes thought, at the peak of a rental crisis.

Rather, we are at the beginning of a transition to a very different type of housing system and society, one in which renting is a major long-term option for the majority, especially in Dublin.

As Ireland appears to be on an inexorable track from being a society of homeowners to one of renters, it is particularly important to understand how poorly regulated the private rental sector is.

One aspect of this is the Residential Tenancies Board (RTB), an agency which is at the heart of the rental sector but which receives little attention. Just what is the RTB and how does it work (or rather, not work)?

The RTB was established by the Residential Tenancies Act (2004) and was tasked with a number of functions including advising on policy for the rental sector, maintaining a register of landlords and of rent levels, and providing a helpline for tenants and landlords.

Its most important function, however, is to deal with disputes between landlords and tenants. It thus plays a key role in enforcing the regulations that do exist, limited as they are.

In many respects the RTB was a great idea and performs an important function. Most importantly, it means there is a place tenants can go when they feel their rights are being violated.

It is relatively easy to bring a dispute to the RTB; all you have to do is fill in the online application form and pay a small fee. The process itself is straightforward.

Tenants, or landlords, can opt for mediation, which is a bit like marriage counselling for tenants and landlords; they essentially facilitate a negotiation, but it is not binding on either party.

Or they can go for the much more useful adjudication. Adjudications are less formal than court, and no legal representation is required, although landlords often lawyer up.

This all sounds rather enlightened, and in many ways it is. The system has two crucial flaws, however, which mean in practice the rental sector continues to be the Wild West of the housing system.

First of all, and this is commonly misunderstood, the role of the RTB is not to “help” tenants. Its role is to apply the legislation and as such it is only as good as the legislation that underpins it.

The big problem with the legislation is that there is virtually no security of tenure for tenants. Landlords can terminate a tenancy for a variety of reasons: because they want to sell the property or because a member of their family wants to move in. Worst of all, they don’t even need a reason during the first six months of a tenancy: if they want you out, you’re out.

The absence of security of tenure is a scandal in its own right, but one of the consequences is that it undermines the whole functioning of the RTB.

Because they are so vulnerable to eviction, tenants are typically afraid to bring cases against their landlords. Their rights might be violated, they may have a rock-solid case, but at the end of the day they feel their landlord is holding all the cards.

Ultimately, the RTB is based on the logic that the most vulnerable actor within the rental sector – the tenant – should be tasked with ensuring that landlords play by the rules. This simply does not work.

This is borne out by the fact that 40 percent of cases brought to the RTB are brought by landlords against tenants, which obviously does not reflect the fact that there are three times as many tenants as landlords.

In addition, deposit retention has always been one of the most frequent reasons that tenants have brought cases to the RTB. In 2015, there were almost three times as many deposit-retention cases as invalid-rent-increase cases.

This is not because it is the most important issue for tenants, but because it becomes an issue once the tenant moves out, and therefore tenants can challenge their landlords without fear of reprisal.

At the Dublin Tenants Association, in which I participate, we have already had numerous tenants contact us because they have received a rent increase above the recently introduced 4 percent limit. Sadly, in the majority of cases, they are afraid to challenge these unlawful increases.

The second major issue with the RTB is the issue of enforcement and penalties. The sad reality is that today you might get a bigger fine for littering than you would for unlawfully ending a tenancy.

At the Dublin Tenants Association we have seen tenants with chronic mould issues in their homes receive a paltry €200 in compensation upon successfully challenging their landlords.

We have seen landlords get fines of €300 for unlawfully terminating a tenancy on false grounds. Figures from the RTB’s 2015 annual statement (a more recent statement does not appear to be available) show that for forced evictions such as changing locks or physically ejecting a tenant – which the RTB recognises is one of the most serious violations – the majority of penalties were at the lower end of the scale (between €1 and €3,000).

This is a poor excuse for enforcement and is symptomatic of the extent to which tenants’ status as second-class citizens is built into the structures of our rental sector.

Despite all this, tenants have good reason for challenging their landlord, although they should consider the appropriate risks and seek advice.

First of all, they might win the case. Every time a tenant wins a case, it makes a small but important dent in the culture of impunity within which landlords operate.

Second of all, bringing cases to the RTB is important in terms of making visible the extent of the violations currently going in the rental sector. We currently have no official data on the level of unlawful terminations of tenancies for example. If more tenants brought cases it would increase visibility of the issues.

Finally, when a tenant takes a case, the issue – whether it is a rent increase or an attempted eviction – is “frozen”. While a case is ongoing, the rent must not be raised nor can any eviction occur.

If there was a large increase in the number of tenants taking cases, it would significantly slow down the workings of the RTB, which would mean many tenants could stay in their homes for longer and avoid rent increases for longer.

The real solution, however, is to deal with the weakness at the heart of the RTB, and the legislation it operates within. Tenants need to have proper security of tenure if they are to feel confident enough to take on their landlords.

Enforcement should be turbo-charged so that the penalties for wreaking havoc on a tenant’s life reflect the fact that housing is a basic need and right that no one can live without.

Ultimately, the mandate of the RTB should be changed to place protecting the right to housing of all tenants at its core.

Dublin Inquirer is collecting experiences of tenants in the rental sector who have been told they have to leave their homes. Have you had a notice to evict? Will you fill out our form to help us report? More information is here.