Residential tenancies act 2004: review and assessment

• Author: Áine Ryall
• Position: Senior Lecturer, Faculty of Law, University College Cork
• Pages: 60-91

Judicial Studies Institute Journal [6:1

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RESIDENTIAL TENANCIES ACT 2004:

REVIEW AND ASSESSMENT

ÁINE RYALL

I. INTRODUCTION1

The Residential Tenancies Act 2004 (RTA) introduced a

new and very detailed legislative framework governing private

residential tenancies.2 At the time of writing, the RTA has been

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 Senior Lecturer, Faculty of Law, University College Cork. Thanks to Brian

Gallagher, Eoin O’Sullivan, Anne Colley, Sheila McMahon and Marjorie

Murphy for comments and suggestions. This article is a substantially revised

and updated version of a paper presented at a seminar held in the Faculty of

Law, UCC on the 1st December 2005 on the theme “Residential Tenancies Act

2004: Update, review and assessment” and published in (2006) 11

Conveyancing and Property Law Journal 4. It is based on material available to

me as of the 30th April 2006 and draws on research for a forthcoming book

Regulation of Residential Tenancies to be published by Thomson Round Hall

in 2007.

1 The RTA is based, in the main, on the recommendations set out in the Report

of the Commission on the Private Rented Residential Sector (Dublin:

Stationary Office, 2000). The Commission’s report sets out its main

conclusions and recommendations in ch.8 and is available at

www.environ.ie/housindex.html. See Ryall, “Residential Tenancy Law: An

Assessment of the Recommendations of the Commission on the Private Rented

Residential Sector” (2001) 6 Conveyancing and Property Law Journal 5;

Ryall, “Reform of Residential Tenancy Law: A Critical Appraisal of Recent

Government Proposals” (2001) 6 Conveyancing and Property Law Journal 31,

for a detailed account of the background to the RTA. See Ó Dúlacháin,

“Residential Tenancies Act 2004,” a paper presented at the Continuing Legal

Education Lecture, Law Library, 16th November 2004, for a critical

commentary on the RTA.

2 The scope of the RTA is treated in detail below. It should be noted at the

outset, however, that the formerly rent-controlled sector is regulated separately

pursuant to the Housing (Private Rented Dwellings) Acts, 1982-1983. So-

called “long occupation equity” tenancies arising under Part II of the Landlord

and Tenant (Amendment) Act, 1980 (“the 1980 Act”) are governed by that Act

and not by the RTA. “Long occupation equity” tenancies may arise where a

residential tenant clocks-up twenty years continuous occupation of a

“tenement” within the meaning of s.5 of the 1980 Act. See s.13 (1)(b) of the

1980 Act. Note, however, that ss.191 and 192 of the RTA introduced

important changes to this aspect of the 1980 Act. Pursuant to s.191 of the

2006] Residential Tenancies Act 2004 61

in force for over 18 months.3 It is, therefore, timely to reflect on

some of the key changes introduced by the RTA and to review the

impact that these changes have had in practice.

Part II of this article introduces the RTA and explains how it

interacts with other legislative measures that regulate the

landlord-tenant relationship. Part III considers selected themes of

practical interest including: scope of the RTA, tenancy

obligations, rent and rent reviews, security of tenure, tenancy

terminations and dispute resolution. The most dramatic change

brought about by the RTA is the establishment of a new public

body, the Private Residential Tenancies Board (PRTB), which has

taken over jurisdiction from the courts in most residential tenancy

disputes.4 As of 25 January 2006, a total of 987 cases had been

referred to the PRTB and the Board had issued 100 Determination

Orders (a number of cases were resolved or withdrawn during the

dispute resolution process).5 Pursuant to s.124 RTA, the Circuit

Court plays an important role in the enforcement of orders issued

by the Board. That court also has jurisdiction, pursuant to ss.189

and 190 RTA, to grant interim or interlocutory relief in

RTA, a tenant may now opt to renounce the right to apply for a new tenancy

under section 13 (1)(b) of the 1980 Act. The provisions of the RTA apply to

tenants who opt to renounce their 1980 Act rights. Section 192(2) of the RTA

provides for the abolition of the right to apply for a new tenancy from the 1st

September 2009.

3 The Residential Tenancies Act, 2004 (Commencement) Order 2004 (S.I. No.

505 of 2004), set the 1st September 2004 as the commencement date for: Part

1; Part 4; Part 5 (other than sections 71 and 72); Part 7; Part 8 (other than

section 159(1)); Part 9 (other than sections 182, 189, 190), paras. (a) and (d) of

section 193, and subsections (4) and (5) of section 195) and the Schedule. The

1st of September 2004 is also the establishment day for the purposes of Part 8

of the RTA. See Residential Tenancies Act, 2004 (Establishment Day) Order

2004 (S.I. No. 525 of 2004). The Residential Tenancies Act, 2004

(Commencement) (No. 2) Order 2004 (S.I. No. 750 of 2004) set the 6th

December 2004 as the commencement date for: Part 2; Part 3; ss.71 and 72;

Part 6; s.159(1); ss.182, 189 and 190; paras. (a) and (d) of s.193; and

subsections (4) and (5) of s.195.

4 RTA, s.182. Note that the Board’s dispute resolution jurisdiction is subject to

certain limits set down in s.182(1).

5 See Murphy, “The Private Residential Tenancies Board’s Perspective,” a

paper presented at the Law Society’s Continuing Professional Development

seminar on the theme of Dispute Resolution and the Residential Tenancies Act

2004, 28th February 2006, at 16.

Judicial Studies Institute Journal [6:1

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appropriate cases. The Board’s orders, reflecting the

determinations of Tenancy Tribunals, may be appealed to the

High Court on a point of law within 21 days and are otherwise

binding. Three cases are pending before the High Court

presently. The different roles played by the courts under the RTA

(i.e., interim/interlocutory relief, appeal on a point of law,

enforcement of Determination Orders where a party has failed to

comply with one or more terms of an order; and proceedings in

relation to offences), are explained in Part IV. The article

concludes by assessing the overall effectiveness of the new

statutory framework to date.

II. RTA INCONTEXT

The general scheme of the RTA is as follows:

Part 1 Preliminary and General

Part 2 Tenancy Obligations of Landlords and

Tenants

Part 3 Rent and Rent Reviews

Part 4 Security of Tenure

Part 5 Tenancy Terminations - Notice Periods

and other Procedural Requirements

Part 6 Dispute Resolution

Part 7 Registration of Tenancies

Part 8 Private Residential Tenancies Board

Part 9 Miscellaneous

Schedule

Although it is a substantial piece of legislation running to

over 200 sections, the RTA does not consolidate the various

legislative measures that govern residential tenancies. The new

statutory scheme was superimposed on a scattered selection of

existing measures.6 A degree of research beyond the text of the

RTA is therefore required in order to gain a complete picture of

the relevant legal rules. The Housing (Miscellaneous Provisions)

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6 See further Ryall, “Residential Tenancies Act 2004” (2005) 10 Conveyancing

and Property Law Journal 10.