COVID-19: Residential Tenancies Update

The enactment on 9 July 2021 of the Residential Tenancies (No 2) Act 2021 is the latest in a series of legislation introduced since the onset of COVID-19 to regulate its impact on residential landlords and tenants. The lapse on 12 April 2021 of the nationwide 5km movement restriction has also triggered a disapplication of certain tenant protections from termination. This briefing updates on current temporary COVID-19 measures, setting out the practical impact of the most recent legislative developments.

Current temporary measures in place

Current COVID-19 regulation of residential tenancies consists of two separate sets of measures, which run concurrently. One is for the general protection from termination of all residential tenants during Level 5 movement restrictions. The other is for the protection from termination due to rent arrears specifically of a limited category of qualifying tenants who self-declare themselves to be at risk of losing their tenancy due to the financial impact of COVID-19. These “financial impact” measures also protect qualifying tenants from rent increases.

The Residential Tenancies Acts (and the terms of the letting agreements in place) continue to apply generally, but must be read subject to both of these temporary COVID-19 measures, where they apply.

5km Movement Measures

The Residential Tenancies Act 2020 (the “RTA 2020”) restricts residential tenancy terminations generally (but not absolutely) in those areas and during those periods of the pandemic when a 5km restriction applies to people’s movements.  Protection from termination is not absolute and termination for certain specific breaches is allowed. The Residential Tenancies Act 2021 expanded on that category of breach to include rent arrears. This means that terminations for the following reasons are all now excluded from protection under these specific measures:

  1. for rent arrears;
  2. because the property is used other than as a dwelling without the landlord’s consent;
  3. because of behaviour of the tenant or other occupiers or visitors:
    • which is anti-social;
    • would invalidate any insurances in place; or
    • could cause damage to the property.

However, the effect of this change will only be felt, if 5km movement restrictions are once again applied to all or any part of the country. As the latest nationwide 5km movement restrictions lapsed on 12 April 2021, this has also triggered a full lapse of the protections afforded to tenants under these particular measures, and unless a tenant qualifies for protection under the COVID-19-specific “financial impact” measures in place, terminations can take effect in accordance with the rights of the parties under the tenancy agreements in accordance with the generally applicable law. Notices of terminations served before or during the period of restriction stand and do not need to be re-served. The notice period will simply be deemed postponed for the duration of the relevant period of the restriction plus ten (10) days.

Financial Impact Measures

Currently and going forward protection for termination from rent arrears is specifically and only available for a tenant who qualifies for and claims protection from termination and rent increase under the protection regime introduced under the Planning and Development and Residential Tenancies Act 2020 (the “PDRTA 2020”). The Residential Tenancies (No 2) Act 2021 has extended the application of the measures introduced under the PDRTA 2020 to 12 January 2022. For more detail on the operation of these measures, see our briefing here.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.