knowledge | 12 July 2021 |
COVID-19: Financial Impact Measures for Residential Tenancies aim to protect both Tenants and Landlords
A protection regime for tenants who self-declare themselves to be at risk of losing their tenancy is in effect from 11 January 2021 under Part 3 of the Planning and Development, and Residential Tenancies Act 2020 (the “PDRTA 2020”). The Residential Tenancies (No 2) Act 2021, enacted on 9 July 2021, ensures that the PDRTA 2020 regime continues to apply to 12 January 2022.
What are the specific protections for at risk tenants under the PDRTA 2020?
The PDRTA 2020 protects qualifying tenants from termination for rent arrears and from rent increases during the relevant “emergency period” (being 11 January 2021 to 12 January 2022).
How does a tenant qualify for the protections under the PDRTA 2020?
To qualify for the protections:
- a tenant must be in receipt of COVID-related or other financial supports as specified in the PDRTA 2020, but the qualifying date starts to run from 1 August 2020; and:
- serve a written declaration on the Residential Tenancies Board (“RTB”) (with a true copy to the landlord) that he or she is unable to pay rent due to COVID-19 and is at risk of losing his or her tenancy;
- include with the written declaration served on the RTB, a request for assistance in obtaining advice of the type provided by the Money and Advice and Budgeting Service (“financial advice”); and
- within 5 days of making his or her declaration, serve a notice on his or her landlord seeking a consultation to make rent payment arrangements.
Disapplication of the tenant protections
The protections under the PDRTA 2020 do not apply where:
- the tenant declaration of risk is not also accompanied by the request of the RTB for assistance in obtaining financial advice; or
- on 10 January 2021 any rent has been in arrears for 5 months or more (whether or not consecutively).
The protections will also cease to apply where:
- the tenant doesn’t provide sufficient information or documentation reasonably required to facilitate the financial advice envisaged under the Act on time or at all; or
- the tenant doesn’t comply with a rent payment arrangement agreed with the landlord; or
- the landlord serves a written declaration on the RTB (with a true copy on the tenant), stating that:
- any rent has been in arrears for 5 months or more (whether or not consecutively);
- the tenant hasn’t provided sufficient information or documentation reasonably required to facilitate the financial advice envisaged under the Act on time or at all;
- the tenant hasn’t complied with a rent payment arrangement agreed with the landlord; or
- the application of the protections to the tenant would cause undue financial hardship to the landlord.
The PDRTA 2020 goes on to determine that undue financial hardship would be caused to a landlord where:
- like the tenant, the landlord is a person in receipt of COVID-related or other financial supports as specified in the PDRTA 2020;
- the rent concerned is the landlord’s sole or main income; or
- the dwelling concerned is subject to a mortgage and the landlord is unlikely to be able to comply with his or her obligations in relation to the mortgage if the rent remains unpaid for the emergency period.
Under the PDRTA 2020 it is an offence for either the landlord or the tenant to make a declaration that is false or misleading.
Are there are any other measures in place to regulate the impact of COVID-19 on residential landlords and tenants?
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. The protections are triggered by the application of 5km movement restrictions. This means that if 5km movement restrictions does not apply, neither do the relevant protections, unless and until the 5km movement restrictions are re-introduced. Protection from termination is not absolute and termination for certain specific breaches, including rent arrears, is allowed. See our separate briefing for more detail on these measures here.
The stated aim of the PDRTA 2020 is to assist tenants financially impacted by Covid-19, while recognising and balancing the constitutionally protected property rights of landlords. In keeping with that, the protections for tenants in the PDRTA 2020 are not absolute. Tenants with rent arrears for five months or more are not protected, and tenants who are, must actively engage with both financial advice services and with landlords towards meeting rent payments. Landlords also have an opportunity to serve a declaration asserting their rights.
The State’s response to the difficulties caused by COVID-19 for residential tenancies has been evolving, but the extension of the measures in PDRTA for the remainder of 2021 and into the early part of 2022 is an indication that the response has now settled, at least for the immediate term.
This briefing is 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.