On 17 November 2022, the Residential Tenancies Board (RTB) published its 2021 Annual Report and Accounts.

The report is available here and deals with issues such as:

  1. How the RTB communicates with customers
  2. How the RTB helps resolve rental disputes
  3. How the RTB regulates the rental sector
  4. How the RTB monitors trends
  5. How the RTB ensures good governance

For more information on this topic contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

The Residential Tenancies Board (RTB) has published details of 38 sanctions which it has imposed on landlords who have failed to comply with the requirements of residential tenancies law. This brings to 76 the total number of sanctions imposed since the RTB was given regulatory powers in 2019.

Importantly, over 85% of the total number of sanctions imposed are for breaches of rent controls in rent pressure zones (RPZ). This reflects the fact that the RTB currently prioritises the investigation of breaches of RPZ restrictions.

Other sanctions in this latest batch relate to:

  • failure to register with the RTB;
  • failure to notify the RTB of changes to a tenancy;
  • failure to notify the RTB of reliance on an RPZ exemption; and
  • failure to offer back premises to a tenant where required to do so under the legislation.

The latest sanctions range from a written caution to a fine of €3,963.76. The RTB states that, as a result of all investigations conducted by the RTB to date:

  • Over €338,000 in overcharged rent has been returned to tenants by landlords;
  • The rents in these cases have also been reset to amounts in compliance with the legislation; and
  • Over €60,000 has been paid by landlords in sanctions to date. All sanction amounts are paid to the Exchequer.

Further details are available here.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

A short post to confirm that the Residential Tenancies (Deferment of Termination Dates of Certain Tenancies) Act 2022 was signed into law on 29 October 2022. The “winter emergency period” referred to in the Act, during which there is to be a moratorium on the termination of residential tenancies, therefore runs from 30 October 2022 to 31 March 2023.

The deferred termination dates under the Act will operate as follows:

Period during which termination date falls Tenancy duration Deferred termination date
Beginning on 30 October 2022 and ending on 31 January 2023 Less than 6 months 1 May 2023
Beginning on 1 February 2023 and ending on 1 March 2023 Less than 6 months 18 June 2023
Beginning on 30 October 2022 and ending on 31 January 2023 Between 6 months and 1 year 1 May 2023
Beginning on 1 February 2023 and ending on 1 March 2023 Between 6 months and 1 year 1 June 2023
Beginning on 30 October 2022 and ending on 31 January 2023 Between 1 and 7 years 15 April 2023
Beginning on 1 February 2023 and ending on 1 March 2023 Between 1 and 7 years 1 May 2023
Beginning on 30 October 2022 and ending on 31 March 2023 7 years + 1 April 2023

For more detail on the operation of the Act, see our earlier post here.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

The Residential Tenancies (Deferment of Termination Dates of Certain Tenancies) Bill 2022​ has been published today. This is the draft legislation intended to give effect to the temporary moratorium on residential tenancy terminations during what is referred to as the “winter emergency period”. The Bill provides the following:

  • The winter emergency period is defined as beginning on the day after the passing of the legislation (expected before the Oireachtas breaks up at the end of next week) and 31 March 2023.
  • The bill applies to both residential tenancies and licences of student accommodation.
  • Where a notice of termination has been served on or before the date of the passing of the Act which specifies a termination date that falls during the emergency period, that termination date is deferred as follows:
Period during which termination date falls Tenancy duration Deferred termination date
Beginning on the day after the date of the passing of the Act and ending on 31 January 2023 Less than 6 months 1 May 2023
Beginning on 1 February 2023 and ending on 1 March 2023 Less than 6 months 18 June 2023
Beginning on the day after the date of the passing of the Act and ending on 31 January 2023 Between 6 months and 1 year 1 May 2023
Beginning on 1 February 2023 and ending on 1 March 2023 Between 6 months and 1 year 1 June 2023
Beginning on the day after the date of the passing of the Act and ending on 31 January 2023 Between 1 and 7 years 15 April 2023
Beginning on 1 February 2023 and ending on 1 March 2023 Between 1 and 7 years 1 May 2023
Beginning on the day after the date of the passing of the Act and ending on 31 March 2023 7 years + 1 April 2023
  • A notice of termination served by a landlord during the emergency period in respect of a tenancy of less than 6 months’ duration cannot specify a termination date earlier than 18 June 2023. Note that there is no need for provision for what happens where you serve a notice during the emergency period in respect of a tenancy of greater than 6 months, as the notice periods under the legislation are such that it takes you past the end of the emergency period without need for deferral.
  • The above deferral periods do not apply where the tenant is in breach or the landlord is terminating on the ground that the accommodation no longer suits the tenant’s needs having regard to the number of bed spaces and the size of the household. ​​
  • A tenant can’t acquire Part 4 rights by virtue of the operation of the Act – i.e. the additional time that they are in occupation by virtue of the operation of the legislation is not to be counted towards Part 4.​

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

The Environmental Trust Ireland v An Bord Pleanála & Ors case involved an application seeking to quash a decision of An Bord Pleanála (the Board) which granted planning permission under the Planning and Development Act 2000 and the Planning and Development (Housing) and Residential Tenancies Act 2016 to Cloncaragh Investments Limited, the notice party developer of a Strategic Housing Development (SHD). The judicial review succeeded on one ground only – the Court was satisfied that as a result of the Board’s failure to circulate the plaintiff’s submission to Limerick City and County Council in a timely manner, it was necessary to quash the permission granted in respect of the SHD. ​The application has been remitted to the Board to allow it to properly engage with the planning authority and to remake it decision.

For further information on this topic, please contact Alan Roberts, Partner, Niamh Collins, Lawyer or any member of A&L Goodbody’s Environmental & Planning team.

The Technology and Construction Court (TCC) in England and Wales has recently given judgment in Essential Living (Greenwich) Limited v Elements (Europe) Limited in relation the extent to which an adjudicator’s decision is binding on the parties for the purpose of an ongoing final account process. The judgment may be of interest in an Irish context.

Background

Essential Living engaged Elements to design and construct modular units for a mixed use development.

The contract contained a provision whereby the construction manager could, within 12 weeks after practical completion, fix a completion period which was ‘fair and reasonable.’ A dispute arose between the parties regarding adjustments to the contract sum, variations, extensions of time, loss and expense and liquidated damages. An adjudicator’s decision dealt with those issues and valued the works up to March 2019. The adjudicator’s decision found in favour of Essential Living.

Subsequently, after practical completion was certified in May 2019, Elements submitted its documentation for the final account process as set out in the contract. The submission included increased sums for variations, an extension of time claim, and additional prolongation costs with no allowance for liquidated damages.

Elements contended that the adjudicator’s decision was limited to an interim payment application and did not affect the final account process as it was conceptually different to the interim valuation decided by the adjudicator. Essential Living maintained that the adjudicator’s decision was binding in relation to those items until determined otherwise in arbitration or litigation and that Elements, under the guise of the final account process, was essentially reopening matters decided by the adjudicator.

Decision

Plenty of case law is available on the issue of whether a subsequent adjudication is ‘the same or substantially the same’ as an earlier adjudication, but there is little case law on the extent to which an adjudicator’s decision concerning an interim valuation binds the subsequent final account process.

At paragraph 84 of the judgment in this matter, O’Farrell J held that:

‘…iii) the Adjudication Decision is not binding on the parties for the purpose of the Construction Manager’s final determination of the Completion Period … from which would flow any liability on the part of Elements for liquidated damages and finance charges;

iv) the Adjudication Decision is not binding on the parties for the purpose of determining the … Contract Sum;

v) the Adjudication Decision is binding in respect of variations considered and assessed by the adjudicator, unless and until the Adjudication Decision is overturned, modified or altered by the court, or unless either party identifies a fresh basis of claim that permits such variation claim to be opened up and  reviewed under the terms of the Contract…’

Commentary

This is an important decision as it provides guidance on the circumstances in which an adjudicator’s decision may or may not be binding in a subsequent final account process carried out under the provisions of the contract.

Central to the decision in this case was the fact that the contract included a provision whereby the construction manager (contract administrator / employer’s representative) had, after practical completion, an overarching power to assess the time for completing the works on a fair and reasonable basis. Such a provision is contained in many standard forms of construction contract. It appears from this judgment that where a contract includes such a provision, then the adjudicator’s decision on extension of time claims will not be binding in the final account process under the contract. However, where an adjudicator has assessed the value of variations that assessment is binding in the final account process until such time as the adjudicator’s decision is altered by the court. In an Irish context, a degree of caution may be required as Simons J has warned about the potential dangers of reading across judgments from the TCC.

For further information in relation to this topic, please contact Conor Owens, Partner, Enda O’Keeffe, Partner, Paul Hughes, Senior Associate or any member of A&L Goodbody’s Construction and Engineering team.

28 July 2022 has been appointed as the commencement date for section 6(2)(c) of the Affordable Housing Act 2021.

This is the provision of the Act which allows a housing authority to enter into arrangements with the Land Development Agency for the purposes of making homes available for sale to eligible applicants under affordable dwelling purchase arrangements.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

In a recent High Court judgment[1], the Court struck out a property developer’s claim that local objectors, who issued judicial review proceedings in response to planning permission granted to the developer for a strategic housing development, had committed the torts of maintenance and champerty.

‘Maintenance’ is the giving of assistance to a party in litigation by a third party who has no interest in that litigation, e.g. financial assistance.

‘Champerty’ is the giving of such assistance where the third party will receive a share of the litigation proceeds.

These proceedings were commenced after the developer became aware of a flyer circulated in the local community. This flyer sought contribution from third parties to the legal costs of the challenge to the developer’s planning permission.

The Court was satisfied that the developer’s claim was “bound to fail” – in other words, the Court determined that it was prepared to exercise its jurisdiction to strike out proceedings and refuse to hear a case where it considers that the arguments raised by an applicant clearly would not succeed. In this instance the Court therefore struck out the claim on the basis that the law of maintenance and champerty should be viewed in accordance with modern ideas of propriety and, even more importantly, in recognition of the fact that access to justice is a constitutional fundamental right. In her judgment Ms Justice Egan noted that the local community, to whom the flyer was directed, had a legitimate interest in the judicial review proceedings. ​

Ultimately, the Court found that as these proceedings were to be struck out as bound to fail, it was not necessary to consider the other grounds advanced by the defendants – namely that the proceedings were brought for an “improper purpose” and that the present proceedings, in addition to two other sets of related proceedings, were to be regarded as SLAPP (strategic litigation against public participation).

[1] Atlas GP Ltd v Kelly & Ors[2022] IEHC 443

For further information on this topic, please contact Alison Fanagan, Consultant, Síofra Heffernan, Lawyer, or any other member of A&L Goodbody’s Environmental and Planning team.

The Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022 introduces, with effect from 6 July 2022, important changes to the law regarding the termination of residential tenancies. These amendments involve:

  • the introduction of a new requirement for landlords to serve a copy of any​ notice of termination on the Residential Tenancies Board (RTB) – previously this obligation applied when terminating on the ground of non-payment of rent only;
  • enabling the RTB to assist by providing contact details of tenants to landlords for the purposes of facilitating a reletting offer where required under the Residential Tenancies Acts; and
  • increasing the notice period to be given by landlords when terminating Part 4 tenancies with a duration of less than 3 years. The resulting new notice periods are as follows:
Duration of Tenancy Previous Notice Period New Notice Period
Less than 6 months 28 days 90 days
Not less than 6 months but less than 1 year 90 days 152 days
Not less than 1 year but less than 3 years 120 days 180 days
Not less than 3 years but less than 7 years 180 days 180 days
Not less than 7 years but less than 8 years 196 days 196 days
Not less than 8 years 224 days 224 days

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

Waltham Abbey v An Bord Pleanála & Ors; Pembroke Road Association v An Bord Pleanála & Ors [2022] IESC 30 concerned appeals against two separate decisions of the High Court. Both decisions raised an identical question of law: whether the word ‘statement’ in Article 299B of the Planning Regulations required a separate identifiable document to be included in a planning application for a strategic housing development (SHD) or whether the obligation under this article can be fulfilled if, to the satisfaction of An Bord Pleanála (the Board), the relevant information has been included generally in the planning application and can be ascertained from a reading of that document.

The joint judgment in both the Waltham Abbey and Pembroke cases was handed down as contradicting interpretations of Article 299B had been delivered by High Court judges in the cases. In Waltham Abbey Humphreys J concluded that a separate identifiable document was required, whereas in Pembroke Owens J concluded that no such separate identifiable document was required.

The Article 299 obligation requires the Board to satisfy itself that the applicant has provided a statement showing how the results of relevant assessments of the effects on the environment carried out pursuant to EU legislation, other than the EIA directive, have been taken into account.

The Court found that the fact that the Board did not have a separate identifiable document did not preclude it from discharging its statutory functions and the “Board was perfectly capable of interpreting the data and the analysis furnished by the developers and it is well used to navigating complex environmental and planning documents”.

The Court allowed the Waltham Abbey appeal but dismissed the Pembroke appeal in so far as it concerned the Article 299B issue.

In relation to Pembroke, two further issues were also addressed:

  1. the use of section 146A of the Planning and Development Act 2000 (the 2000 Act) in order to allow the Board to amend a condition in its grant of planning permission as it had relied on the wrong section to impose a financial condition, along with the related question of whether the High Court was correct to consider this amendment to be non-material; and
  2. the interpretation of the Urban Development Building Height Guidelines, in particular, whether the Board was required to expressly consider whether the relevant development plan was consistent with the National Planning Framework or whether the Board could consider this to be ‘self-evident’.

With regards to these other issues, the Court agreed with Owen J’s analysis in the High Court of section 146A and found that he was correct in the circumstances of this case to adjourn the judicial review proceedings in order to allow the Board to amend the permission. The Court also held that the Board had paid appropriate attention to the general objectives of the Urban Development Building Height Guidelines and the need to comply with the combined requirements of s. 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016 (which provides the Board with the power to grant a SHD permission which would materially contravene an aspect of the development plan) and s. 37(2)(b) of the 2000 Act (which allows for the Board to depart from the development plan where, having regard to the relevant guidelines, it considers the departure is warranted).

 

For further information on this topic, please contact Kristen Read, Senior Associate, Niamh Collins, Lawyer or any member of A&L Goodbody’s Environmental and Planning team.