Due to the ongoing effects of the pandemic, the protections for residential tenants at risk of losing their tenancy due to the financial impact of COVID-19 have been extended by the Residential Tenancies Act 2021 (New Act). This extends the regime provided for by the Planning and Development, and Residential Tenancies Act 2020 (the PDRTA 2020). A note on the PDRTA 2020 can be found here. The New Act extends the protections afforded by the PDRTA 2020 from 13 April 2021 to 12 July 2021.

According to the Oireachtas debates on the New Act, approximately 407 tenants have sought the protections so far. The New Act has not changed the criteria required for tenants to avail of the protections nor does it make any changes to the protections for landlords.

Protections

In summary, these protections are:

• A restriction on rent increases coming into effect during the emergency period, 11 January 2021 to 12 July 2021, with no back-dating of rent increases allowed, and

• Extended notice periods for terminations based on rent arrears. Termination notices must provide a minimum of 90 days’ notice, rather than the usual 28 days, and the termination notice must not specify a date earlier than 13 July 2021. For any notices of termination already served with a termination date specifying a date earlier than 13 July 2021, the termination date will be deemed to be no earlier than 13 July 2021.

These protections are for the benefit of residential tenants who are “relevant persons”, as explained below.

Who is protected?

The Act protects “relevant persons” who are, broadly speaking, residential tenants unable to pay their rent because they are in receipt of, or have been entitled to receive a COVID-19 related support at any time during the period from 1 August 2020 to 12 July 2021. In order to qualify for the protections, tenants must follow the steps set out below.

A tenant who has been in rent arrears for a period of 5 months or more on 10 January 2021 is not entitled to these protections.

Steps a tenant must take to qualify

To qualify for the protections, a tenant who meets the above criteria must:

1. Provide the Residential Tenancies Board (RTB) with a written declaration confirming that a) they are unable to pay their rent due as a result of being in receipt of such COVID-19 related support and b) as a result there is a significant risk of their tenancy being terminated. A true copy of this must also be provided to the landlord

2. Request assistance from the RTB in seeking financial advice similar to that provided by the Money Advice and Budgeting Service, and

3. Within 5 days of serving the declaration, serve a notice on their landlord seeking a consultation to put in place a rent payment plan

Protections for landlords

Landlords can displace the protections of tenants by serving a declaration on the RTB with a true copy served on the tenant where:

1. A tenant is in rental arrears for 5 months or more on the date of the declaration, or

2. The tenant fails or refuses to provide information sought by the RTB or other persons for the purpose of providing financial advice, or

3. The tenant fails or refuses to comply with a repayment plan, or

4. The protections would cause undue financial hardship to the landlord

This fourth ground will apply where:

• The landlord meets the definition of a “relevant person”, or

• The rent from the tenant is the landlord’s sole or main income, or

• The dwelling is subject to a mortgage which the landlord will likely default upon if the rent remains unpaid

Changes to the 5km restrictions eviction ban

In addition to extending the period for tenant protections under the PDRTA 2020, the New Act also makes some subtle but noteworthy changes to the Residential Tenancies Act 2020 (the RTA 2020).

The RTA 2020 provides for a general ban on residential tenancy evictions whilst 5km travel restrictions are in place, subject to certain exceptions. See our previous note on the RTA 2020 here. The exceptions to the general ban under the RTA 2020 include, amongst other things, anti-social behaviour and behaviour that threatens the dwelling. There was no exception from the ban where a tenant was in rent arrears.

The New Act seeks to clarify that a 5km travel restriction does not affect the legal obligation on a tenant to pay rent. It has amended the RTA 2020 so that tenants who are in rent arrears are not automatically protected by the eviction ban. To qualify for any protections, they would have to be “relevant persons” under the PDRTA 2020 and make the necessary declaration to the RTB.

Conclusion

The extension of the tenant protections to 12 July 2021 will bring welcome relief to tenants who have been financially impacted by COVID-19. The removal of the blanket moratorium on evictions of tenants in rent arrears during 5km restrictions will be welcomed by landlords. With the 5km travel restriction due to be lifted shortly, it remains to be seen if the Government decides to make any further changes to the RTA 2020.

For more information, contact a member of our Real Estate team.