Renters weigh up the risks of staying on beyond their eviction date

Last Friday, the Taoiseach, Fine Gael TD Leo Varadkar, said that evictions are very rare and that judges would be reluctant to evict tenants into homelessness.

“Actual eviction orders can only be issued by a court and it’s very, very rare that a judge would evict an individual family into homelessness,” he said, according to the Irish Times.

But two solicitors specialising in housing law said they didn’t know of any cases in Ireland where a judge took pity on a tenant facing homelessness and didn’t grant an eviction order.

“We are not aware of any proportionality or broader human-rights-based arguments being successfully made in disputes concerning evictions from privately rented accommodation,” says Mary Heavey, a solicitor with Community Law and Mediation, a free legal advice and advocacy centre in Coolock.

The legal costs of fighting an eviction in the courts can mount up quickly, says Aoife Kelly-Desmond, managing solicitor at the Mercy Law Resource Centre, and the tenant’s name can be published in an adjudication report on the Residential Tenancies Board’s (RTB’s) searchable database.

Still, for tenants who are unable to secure either a new home or access to emergency accommodation, overholding may appear to be the only option available to them, other than sleeping on the streets.

“People’s choices are so limited that there might not be any other option but to stay where they are,” says Heavey.

Several councillors said they think social housing tenants on the Housing Assistance Payment (HAP) scheme should remain in their homes and that the council should buy the homes under the tenant-in-situ scheme.

Aaron Downey, the national campaign coordinator with the Community Action Tenants Union (CATU), says that there can be benefits to tenants from overholding when it comes to negotiating with landlords.

Some corporate landlords have called off evictions in the face of substantial opposition, he says.

The Irish Property Owners Association didn’t respond to queries about overholding.

Two Tales

Since the government decided to lift the ban on no-fault evictions earlier this month, tenants with notices to quit have been weighing up whether – given the scarcity of alternative accommodation – they should stay put past their deadlines.

That can play out in different ways, say those forced to do so.

One tenant, who asked not to be named for fear she will struggle to get another place in future, said she regrets overholding.

Her situation has not improved since she started to overstay last summer. She is currently waiting for the sheriff to come and evict her, she says.

The mother, who lives in Dundalk with her baby and her adult daughter, says her landlord took a case against her at the RTB in August 2022. The RTB found that her notice to quit was valid.

The tenant was given 14 days to leave. She stayed on, she says, and the landlord took her to court and secured a court order for her eviction.

“I’m worse off now than I was back then,” she says, “and sure I will soon be homeless anyway.”

She is angry with Louth County Council staff, who, she says, advised her to overhold. Her name is searchable on the RTB database and future potential landlords will be able to see that she overheld.

Council staff advised her to keep overholding even after she lost the RTB case, which meant she incurred legal fees in the courts, she says.

Louth County Council did not respond to queries sent Friday about whether and in what circumstances they advise people to overhold.

The four Dublin local authorities didn’t respond directly to queries as to whether their staff advise tenants to overhold.

The Dublin Region Homeless Executive issued a response that did not directly address this question.

Another tenant, a mother with a teenage son living in Ballymun, has had a starkly different experience. She has been overholding since January 2022.

She has heard nothing from the landlord since, she said. The landlord hasn’t filed a dispute with the RTB.

She is still paying rent to the council and the landlord is being paid by the Housing Assistance Payment, she says.

The tenant says she has applied for hundreds of homes but hasn’t managed to find one she was allowed to accept due to price restrictions of the HAP scheme.

“I’m very lucky that he’s not chasing me,” she says.

At the beginning she was afraid to go out, she says, and it is still hanging over her. “It’s so much pressure, so much stress.”

She had to pay to fix the heating herself and the property does need maintenance, she says. If the council would buy the home and bring it up to standard that would be a massive relief, she says.

What the Law Says

Lately, more people who are overholding are attending legal advice clinics run by Community Law and Mediation in Coolock, says Heavey, the solicitor there.

“Legally speaking, people are in a precarious situation,” she says. “If you have been served with a valid notice of termination, you don’t have a legal basis to continue to remain in the property beyond the termination date.”

The landlord cannot physically evict the tenant, says Heavey. They can file a dispute with the RTB, she said.

If the landlord enters the property to change the locks or cuts off the utilities, that would amount to an illegal eviction, she says.

If an RTB adjudicator finds that the notice of termination is valid they will give the tenant a date on which they have to leave the property.

Tenants can appeal the adjudication in the RTB and then the case goes to an RTB tribunal, says Heavey.

Ann-Marie O’Reilly, the national advocacy manager with Threshold, says that the housing charity is working with 302 households that are overholding. The RTB process usually takes between five months and nine months, including the tenant appealing to a tribunal.

If the tenant doesn’t appeal, or if the tribunal also finds in favour of the landlord, the landlord can then apply to the District Court to enforce the RTB decision to evict.

The District Court case is usually over in a matter of minutes, says Heavey.

The District Court ordinarily implements the RTB decision, she says. It can only decide not to make a court order enforcing the RTB decision in certain, limited circumstances, such as a procedural failure or a legal issue with the decision.

Neither the RTB nor the District Court generally take account of the personal circumstances of tenants, says Heavey. “They are limited in what they can consider.”

Up to now, most people left before the cases came to court, says Heavey, but that may change in the near future, due to the shortage of emergency accommodation and a lack of other options.

Kelly-Desmond says that the legislation ensures that the tenant who is overholding will be liable for the landlord’s legal costs.

If the tenant still doesn’t comply with the court order, the landlord can go for an enforcement order and that will add to the legal costs, says Kelly-Desmond. “It is high risk for the tenant, particularly prolonged overholding.”

The RTB adjudication report will be published on the RTB database, too, she says.

Running Out of Options

Councillors say that with a shortage of rented accommodation and families being refused emergency accommodation too, tenants are left with little choice but to overhold.

Independent Councillor Cieran Perry says that he advises people to overhold to buy time to search more for a new place.

“I reluctantly advise people to go down that route because it keeps them with a roof over their head for a longer time,” says Perry.

But it is highly stressful for the tenant. “You know you’re going to lose the case and you have to represent yourself in the RTB,” he says. “It’s far from ideal.”

Madeleine Johansson, a People Before Profit councillor in South Dublin County Council, lives in a rented apartment in Tathony House in Kilmainham, where multiple tenants are disputing eviction notices through the RTB.

She hopes that the RTB will find in favour of the tenants but if it finds in favour of the landlord, she doesn’t plan to leave her home.

“It is highly likely that we, like thousands of others, won’t find anything and in that case, the only option will be to overhold,” she says, by phone on Saturday. “We’re not going to have a choice.”

The worst thing about overholding is the stress and worry for tenants, says Johansson. Tenants often fear that their landlord might perform an illegal eviction, she says, which happens fairly frequently.

Still, there is a severe shortage of rental homes and very little emergency accommodation, she says. “Keep looking, but if you have nowhere to go and your eviction date is coming, don’t leave and end up homeless,” says Johansson.

Anthony Connaghan, a Sinn Féin councillor on Dublin City Council, says that he doesn’t know any renters who are currently overholding. But he knows a lot of tenants with notices to quit who are considering overholding once the eviction ban is lifted, he says.

Families are being told that emergency accommodation is not available, he says, and many families cannot stay with relatives because their relatives’ homes are already overcrowded.

People are getting really desperate, says Connaghan. Most of the tenants he knows get on well with their landlords and don’t want conflict with them, he says, they simply have nowhere else to go with their children.

“There is no emergency accommodation,” says Sophie Nicoullaud, a Right to Change councillor on Dublin City Council. People should try to minimise the length of time their children spend homeless, she says.

If a social housing tenant overholds the landlord is more likely to do a deal with the council to buy the home under the tenant-in-situ scheme, she says.

The government announced earlier this month that councils across Ireland will buy 1,500 homes this year under the tenant-in-situ scheme and turn them into social homes.

It also announced that it would, from 1 April, operate a similar scheme for those on higher incomes who don’t qualify for social housing, but would for cost-rental homes.

Promises to keep tenants in situ could well be interpreted by renters as the best opportunity to secure permanent housing for their families.

Johansson, the People Before Profit councillor, says some landlords want to sell to South Dublin County Council but the council doesn’t have enough staff to process the applications.

A Bargaining Position

Overholding can provide the tenant with a position to negotiate from, says Aaron Downey, of CATU, particularly when dealing with big corporate landlords.

He wouldn’t advise a tenant to overhold without assessing their case, he says. “We take each situation on a case-by-case basis,” says Downey. “Generally I would say that there are a lot more reasons to overhold, particularly in the current context.”

Downey says it is always better to try to negotiate solutions as early as possible, rather than wait until the eviction date is up. Sometimes a corporate landlord will call off the eviction in the face of substantial opposition, he says.

“We have had cases where people have overheld – particularly in the case of the bigger corporate landlords – and the landlords have given them a cash settlement to move elsewhere or we got the eviction called off entirely,” he says.

Some corporate landlords have agreed to re-house tenants in other properties that they owned too, he says, instead of battling with them through the RTB and the courts.