The Residential Tenancies Board (RTB) was set up in 2004 as part of The Private Residential Tenancies Act (RTA). This provided a framework to govern residential tenancies and each tenancy had to be registered with the RTB. Initially not much fan fair greeted the set-up of the board and for the first few years, there was little consternation. This all changed with amended legislation that came into force on December 24^th 2016.

The main thing that the new legislation introduced was rent caps in rent pressure zones. Since then we have had two further amendments on July 16^th 2021 and December 16^th 2021. These amendments didn’t just cover the rent caps, they also affected part 4 of the RTA.

From a low-key beginning, the RTB has now been at the forefront of every landlord’s and most tenants’ minds. Many landlords have a very negative impression of the RTB, although some welcome the increased levels of regulation and compliance. The levels of regulation mean that we now have a compliance team within our company to ensure all our clients are compliant with the legislation.

The dispute resolution service was a key function of the board. Its aim was to take landlord and tenant disputes away from the traditional court services, where the application process was complex and often parties had to go through the expense of hiring legal professionals. The RTB dispute resolution service was meant to be efficient, cost-effective and accessible.

It is still all of these things, however given the number of legislative changes and case law since 2004, case preparation and presentation is anything but simple. Although legal professionals are now more involved in cases, many parties still choose to represent themselves. Below are some typical disputes between landlords and tenants and what to look out for in each incidence.

Deposit Retention

A landlord can retain all or part of a deposit in the below circumstances:

• There is rent outstanding
• The apartment is damaged beyond normal wear and tear

The first incidence is easily quantifiable, straightforward and rarely contested by the tenant. The second incidence is much less straightforward are far more subjective. Our definition of normal wear and tear, simply states that; a landlord can’t expect the property to be in the same condition as it was at the commencement of the tenancy. This is merely a starting point, in trying to quantify if the tenant is responsible for any or some of the costs incurred when the property becomes vacant, the below should be considered:

• How long the tenant was living in the property
• What was the condition of the property at the start of the lease
• Particularly if the property is being sold; would the work have had to be done regardless

If the landlord does decide to make any deductions from the deposit, they will need the following evidence:

• Invoices for the costs
• Images showing the property at the start of the tenancy
• Images showing the condition the tenant left the property

At Brock Delappe we provide comprehensive reports at either end of the tenancy, advising the landlord of condition, costs and who is responsible for what. We supplement these reports with virtual tours, giving the owners an accurate picture.

The arbitrary nature of normal wear and tear extends to the RTB adjudicators, who often set a very high threshold for what is considered excessive wear and tear.

Overholding

Overholding is when a tenant has been served a notice to quit but remains in possession of the property after the notice has expired. This is a tricky one and aggressive tactics including changing locks or cutting the power supply can result in five-figure fines for a landlord. It is imperative that the landlord serving the notice follows the correct procedure. The notice needs to be prepared and served in a prescribed fashion. Below is a checklist.

• The notice must include one of the reasons set out in Part 4 of the RTA.
• Depending on the reason, the notice needs to be prepared in the prescribed format.
• A statutory declaration, signed and witnessed by a solicitor needs to accompany the notice
• If the landlord is serving the notice from abroad, an apostille needs also to accompany the notice. An apostille is a specialised certification issued by the Department of Foreign Affairs, validating the authenticity of a document for use in countries that are party to the Hague Apostille Convention.
• The date of the notice must be after the date of postage, so consider weekends and postage times, always erroring on the side of caution.
• The notice must be served by express post so there is proof of postage that needs to be kept. Where there is no proof of postage, the notice can be deemed invalid.

If there is any deviation from the above the notice can be considered invalid. The RTB have what is referred to as the “slip rule”, where they consider a minor error with the date in particular just that and allow the notice to stand. Personally, I have never seen or heard of the slip rule being applied.

If a landlord takes a case against a tenant in the RTB for overholding, the first thing that will be checked is the notice. Was it prepared in the right format and did the dates correspond correctly with the termination date? If there are any discrepancies, the notice can be deemed invalid and the process will need to be started from scratch.

At Brock Delappe, we have a compliance team that prepares the correct notices for our clients and ensures they are served as prescribed.

Peaceful and Exclusive Occupation

A tenant is entitled to peaceful and exclusive occupation of the property that they are renting. The best way to look at this is that it is the landlord’s house but the tenant’s home. When deciding to let out your property, it is vital that the owner is comfortable with this arrangement.

An obvious thing that would breach the tenant’s rights to peaceful and exclusive occupation would be entering the property without notifying the tenant. Often this is done with the best intentions, maybe to fix a maintenance issue.

Other issues are much more subtle. A good example is cleanliness, which can come into question during an interim inspection. Technically a tenant is entitled to live in whatever condition they choose and the landlord has no right to make any imposition here.

This entitlement is taken very seriously by the RTB and any incursion the landlord may make to threaten the tenant’s peaceful and exclusive occupation should be carefully considered and only applied in extreme circumstances.

Third-Party Claims

Thankfully, these cases don’t come up regularly. When they do, they can be the source of a lot of frustration and can leave the landlord in a vulnerable position. This covers an often overlooked landlord obligation; to ensure the tenant fulfils their obligations.

We’ve touched on the challenges a landlord may face in ensuring a tenant complies with their obligations. If a tenant refuses to comply with their obligations, the landlord must deal with this and a potential third-party complainant who may be affected by the tenant’s behaviour.

A good example is anti-social behaviour, which can be very hard to enforce. In this case, the landlord rather than the tenant would be held liable by an affected neighbour.