Residential Licences are Alive and Well
14 April 2021
The Residential Tenancies Board (the RTB) held in January 2021 that a charity that provides self-contained work/live artist studios with various supports to upcoming artists did not amount to a grant of a tenancy for the purposes of the Residential Tenancies Acts (RTA). These supports included access to equipment, advice and further education.
The charity relied on state funding to provide heavily subsidised accommodation and studio space to visual artists for a fixed term. Any artist taking up a highly sought after residence underwent a rigorous selection process that required them to submit a body of work, together with an intended work plan for their residency. The artist’s entitlement to remain in residence was linked to them continuing to produce artistic works.
It was standard practice for the charity to enter into a written agreement with the artist taking up residence. The agreement set out the terms of the occupation which included terms that varied from the normal requirements under the RTA.
In this case, the resident artist lodged a dispute with the RTB contending that a tenancy had been created that was subject to the protection of the RTA.
On finding against the resident artist, the RTB looked at the intention of the parties at the time they entered into the agreement. In this instance it was quite clear given the nature of the arrangement that the parties did not intend on creating a tenancy, the RTB therefore ruled that a licence was created.
A licence is distinct from a tenancy, it is essentially a permission granted to a person to enter onto land for a specified purpose and/or a specified term. It is noteworthy that the agreement defined the parties as the ‘landlord’ and the ‘tenant’. These are terms that would usually be associated with a tenancy however their use could not conclusively determine the intention of the parties.
The agreement set out that it was made for the sole purpose of assisting the resident artist to pursue his/her career as a fine artist. It was also an important factor that the resident artist did not have exclusive possession of the studio as it was opened up once a year to the general public.
The charity could demonstrate that it had retained a level of control over the work/live studios which prevented the artist from being able to claim exclusive possession of the studio. As the artist was not able to demonstrate that exclusive possession, it was not possible to claim that tenancy rights accrued capable of protection under the RTA.
The RTA casts a wide net over what is defined as a residential tenancy. This case demonstrates that not every entitlement to occupy a residential unit will amount to a tenancy for the purposes of the RTA.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
Editor’s note: We acted for the charity before the RTB.