Private Rental Sector Update: Investigative and Sanctioning Powers of the RTB – What You Need to Know
17 September 2019
The Residential Tenancies Acts 2019 (2019 Act) has introduced a number of important changes to the residential landlord and tenant relationship. An overview of those changes can be found in a previous insight
The 2019 Act provides more protection and transparency for tenants, while increasing the obligations and the potential liability of landlords of residential property.
In addition to changing the law, with effect from 1 July 2019, the 2019 Act has also introduced a new complaints, investigations and sanctions procedure. This is a new departure for the Residential Tenancies Board (the “RTB”). At a high level, the procedure will enable the RTB to impose penalties on landlords who are found to have committed improper conduct.
What is improper conduct?
The 2019 Act sets out a list of what constitutes improper conduct. This includes:
- Failing to comply with the rent increase restrictions in rent pressure zones
- Failing to notify the RTB where a landlord is relying on an exemption from the rent increase restrictions or where a landlord falsely relies on an exemption
- Failure by the landlord to comply with his / her RTB registration obligations
- Seeking to rely on a ground to terminate a tenancy which the landlord knows is false or misleading
- Failing to offer a property for re-letting to a former tenant after a tenancy has been terminated where the landlord is required to do so, for example, where a sale of a property has not proceeded within a period of 9 months
What sanctions apply?
The RTB has a wide discretion in imposing sanctions for improper conduct.
The maximum financial penalty is €15,000 for improper conduct. This is payable to the RTB and not to the complainant. In determining the level of the sanction, the decision maker appointed by the RTB can have regard to a number of factors. These can include:
- The gravity of the improper conduct
- Any acknowledgement on the part of the landlord
- Any failure on the part of the landlord to co-operate with the investigation
- The duration of the improper conduct, and
- Any history of the landlord engaging in similar instances of improper conduct
In addition to the financial penalty, costs of up to €15,000 can also be awarded against the landlord. The costs, if awarded, are payable to the RTB.
The landlord can also be issued with a caution.
The RTB will publish any sanctions imposed.
A landlord cannot be found guilty of any criminal offence where it is one and the same as the improper conduct which resulted in a sanction. Equally, where a landlord has been found guilty of a criminal offence, that offence cannot be the subject of a sanction even though it may also constitute improper conduct.
Powers to carry out an investigation
The authorised officer appointed by the RTB is given extensive powers under the 2019 Act to carry out an investigation. Those powers are exercisable not only against the landlord but also against their employees and agents or those who are considered to possess relevant information. The powers include:
- Entering, inspecting, examining and searching any premises where the authorised officer has reasonable grounds for believing that any activity in connection with the letting or tenancy of a dwelling is carried on
- Inspecting and taking copies of records
- Removing and retaining records for as long as is considered reasonable
- Compeling any person at the premises / its owner or person in charge or employed there to assist, inform and produce records
- To requiring a landlord to provide any necessary explanations
Where the relevant person fails to do what is required of him / her, he / she can be the subject of a District Court Order compelling compliance.
Any person who fails or refuses to engage with the authorised officer could be subject to a fine of up to €50,000 and / or a maximum of 12 months imprisonment.
While the powers of the authorised officer are many, he / she cannot enter a dwelling without a) the consent of the occupant or b) having obtained a warrant. The warrant may provide that reasonable force can be used to gain entrance to the premises.
The investigation / the procedure
The procedure is commenced either by a complainant or the RTB itself. The procedure to be followed is set out in the 2019 Act and comprises a number of steps with various timelines.
Where a sanction is imposed, the landlord has a right of appeal to the Circuit Court and any sanction will ultimately be confirmed by the Circuit Court. A further appeal, on a point of law only, is possible in the High Court.
The investigation procedure is supplemental to and does not affect a tenant’s ability to lodge a dispute with the RTB arising from a breach of a lease or statutory obligations by a landlord. Notably, the complaints procedure is not open to landlords to make against a tenant; only complaints against landlords for improper conduct can be made.
The new investigative and sanctioning powers will greatly enhance the RTB’s powers to regulate the residential landlord and tenant market. For landlords, the consequences of an investigation can be serious in terms of costs, time and potential reputational damage. Given the potential sanctions, landlords should engage quickly with any notice received from the RTB. A prompt response requires that any agents acting for the landlord are similarly aware of the process and have the opportunity to seek legal advice, if required.
The content of this article is provided for information purposes only and does not constitute legal or other advice.