Amendments Nos. 21, 22, 24, 26 and 27 are being taken together.
Residential Tenancies Bill 2003: Report Stage (Resumed).
Debate resumed on amendment No. 21:
In page 21, line 22, after "enactment" to insert "(including in particular an enactment relating to standards)".
—(Deputy Gilmore).
Amendment No. 24 in my name is designed to ensure that landlords are not in a position to rent out hovels. There is much evidence of this happening in the area of the country I represent. I have met many constituents who have raised this issue. Some of them have children and have informed me that they must use an outside toilet in their rented dwellings which are damp, whose windows are decaying and for which they pay a great deal every week. They need local authority accommodation urgently because their children's health is at risk but they have been on the public housing waiting list for up to four years. This problem concerns a minority of landlords. How can landlords get away with providing such living conditions in which people are forced to live and for which they must pay high rents?
We are supposed to have a system of registration of landlords with local authorities which are supposed to ensure that registration takes place of all rented properties but are failing in their duties in this regard. The 2002 census figures show that less than 25% of all rented dwellings are registered with local authorities. The Minister of State suggests that registration should take place centrally. It would be much more effective if local authorities were given the necessary resources to carry out enforcement of such registration in an effective way. They should ensure in the case of registration that an inspection of the premises takes place. Surely inspections should take place when an application is made for housing. An inspection should take place in all cases to access the applicant's housing needs. When such an assessment takes place, it seems a blind eye is turned to the conditions under which the applicant is living. I do not foresee local authorities living up to their responsibilities, even where an inspection takes place.
This amendment is tabled to introduce some control into the quality of accommodation being offered to some unfortunate people. This problem relates to a minority of irresponsible landlords, and such irresponsibility is being allowed to continue without any check by local authorities.
I want to speak to amendment No. 22 and I support amendments Nos. 21 and 24. On some local authority housing schemes speculators or investors will buy properties which adjoin the homes of people who have purchased local houses under the local authority tenant purchase scheme. The difference in two such homes after a few months, much less a few years, becomes evident. The house bought by a speculator quickly becomes extremely dilapidated. One can tell that the edifice of the house has not seen a lick of paint in some cases for more than ten years, drain pipes are hanging off walls and the boundary fences are in bits. The hearts of the unfortunate people who purchased homes adjoining such property are scalded trying to maintain their property and keep their little house looking "middling bright".
The same situation occurs in private housing schemes where people pay exorbitant sums of money for what to them is a new home. Unfortunately an investor in the private rented market will buy a property and spend little or nothing on it for as long as 20 years while the poor unfortunate people next door put every effort into keeping their home by putting up new curtains and planting trees in the garden. We have canvassed constituents in these estates and know the situation. It is unfair.
Amendment No. 22 seeks to bring some level of accountability to bear on people who buy such properties as an investment. This is one of the themes that runs through a number of the amendments I have tabled. I very much consider a property to be a home as opposed to a commodity, whereas speculators and investors invest for a cold reason and laudably so in some cases, but they abandon their responsibilities to maintain the area and district to some semblance of a reasonable standard. If this amendment were accepted, it would allow some sanction to be imposed on such wayward landlords to try to bring them back into line. It is aimed at protecting those people who have made a significant investment in their homes or in maintaining them to a high standard.
This problem is not unique to my constituency. No matter whether one travels around an urban estate in Dublin or estates in other towns or villages, one will note the same situation prevails. I hope some type of sanction can be brought to bear on these wayward landlords and that they might be obliged to maintain some level of a decent standard to the exterior as well as to the interior of these houses.
I support DeputyMorgan's amendment No. 22. Over the past decade in particular an increasing number of properties in what were at one time council housing schemes, in more affordable private estates and in smaller townhouse and terrace developments in towns throughout this jurisdiction have been bought up by property speculators and by a new native landlord class or species who collect rents and do little or nothing else to maintain or promote the upkeep of their properties. I acknowledge that some act responsibly, but an increasing number of them ignore their responsibilities to their neighbours and others living in close proximity who have pride in their homes, the areas in which they live and their communities.
As Deputy Morgan said, one could visit these estates, as we all have done when canvassing in the recent local and European elections, and nearly identify from the obvious state of neglect the status of a property. One could identify whether a property was owner-occupied or rented. The difference between the two is almost as stark as that.
Such wilful neglect of property is not acceptable and should be open to legal challenge. I speak of the appearance of such properties, their upkeep in terms of their external presentation, their need of a coat of paint, the cleaning out of guttering and repair of dangling downpipes, and the keeping of the gardens and surrounds of these properties where grass is allowed to grow unattended, trees, bushes and hedges have grown out of control and the appearance is one of general untidiness. All of this seriously impacts on the quality of life of people in an area and on the general appearance of residential areas. There is no means or method of addressing or, more importantly, redressing this problem.
This Bill offers an opportunity in that regard. I appeal to the Minister of State to take on board the important arguments Deputy Morgan made in speaking to his amendment. He should take on board this problem and recognise that this Bill could be used as a vehicle through which this type of wilful neglect could be addressed. The view of those responsible is that it is only the euro and cent return on a weekly or monthly basis that matters and that they have no other responsibility or duty to the property or to the area in which it is located. It cannot be enforceable in terms of occupants. The responsibility must clearly lie with the owners of these properties, who are demonstrating what I correctly described as wilful neglect.
I am sure the Minister of State will have recognised this problem in his constituency and I hope that, having done so, he will join us in trying to devise a formula that will win redress and allow families who have made a key investment in the development, betterment and enhancement of the community and in improving the quality of life for themselves and their neighbours to be assisted in some way in combating this new urban scourge that has been visited on so many of the housing schemes, particularly those associated with houses in the more affordable bracket. I appeal to the Minister of State to recognise the common sense of the proposition before us and to adopt it.
Minister of State at the Department of the Environment, Heritage and Local Government (Mr. N. Ahern)
I am not in a position to accept amendment No. 21. Apart from the fact that the reference to standards is very vague, the amendment is unnecessary. I presume its intention is to insert a reference to statutory requirements relating to standards of private rented accommodation. These are adequately covered by the existing reference to obligations under any enactment.
The Deputy may have raised this issue on Committee Stage. An amendment was made on Committee Stage to ensure an appropriate linkage between a landlord's obligations regarding repairs etc. under section 12 of the Bill and the regulations relating to standards of private rented accommodation under the Housing (Miscellaneous Provisions) Act 1992. I do not know if it fully covers the point the Deputy was making.
Amendment 22 in the name of Deputy Morgan alludes to the landlord's duty to maintain the exterior of the dwelling so it will not become an eyesore. The Housing (Standards for Rented Houses) Regulations 1993 prescribe minimum physical standards of private rented accommodation, including maintenance of dwellings in good repair, and they require common areas, walls and fences to be kept in good condition. These regulations continue to apply to rented accommodation. In any event, it would not be appropriate to insert into legislation a provision requiring the maintenance of dwellings to a standard comparable with that of adjoining properties as the concept is too vague and capable of too great a variation. I understand where the Deputy is coming from but the language used is inappropriate.
I am a bit confused about what Deputy Morgan spoke about. As I understood it, he was talking about local authority estates where speculators were buying what were——
I was also referring to private dwellings.
It could happen in the private housing sector but in local authority estates, certainly those in Dublin with which I am better acquainted, the local authorities are very fussy about letting somebody who is not prepared to live in a dwelling as his primary residence buy that dwelling, unless it was bought under a sale scheme 25 years ago. However, if it were bought in recent years, the local authority would have been very fussy about ensuring that whoever moved in was the owner.
They are finding loopholes.
Generally, if my house or the Deputy's house were in rag order and we were living in them, the relevant local authorities could do less in this case than if we were renting them. There are regulations, however imperfect, in existence and obviously more enforcement is required.
On Deputy Allen's point, local authorities have not been very proactive in following up registrations. However, one can write to one's local authority and inform it that a certain house is, in one's opinion, rented and that the gardens are in bad order, and one can inquire whether that house is registered and ask that something be done about it. If the house is in private ownership, lived in by a family, there is very little the authority can do. However, if it is a rented house that ought to be registered, regulations exist to allow the authority to follow up and do something about it.
The Minister of State is not enforcing them.
I know that but——
Less that a quarter of tenancies are registered, yet——
I know and that is why——
——the Minister of State is talking about enforcement.
Order, please. The Minister of State is in possession.
The Minister of State should get real.
The Deputy may have an opportunity to speak later.
I am real. I know what this is all about. As I said——
He is doing nothing about it.
What does the Deputy believe we are doing tonight? We are trying to pass new legislation.
The Minister of State said he is trying to enforce——
Order, please.
I am stating the current rules, which most of us are aware of, and admitting that local authorities are not very proactive regarding these issues.
I thank the Minister of State.
However, when complaints are received, most of the authorities follow them up. If a rented house is the subject of a complaint, the landlord has rights and a remit to put it in order.
I accept Deputy Allen's point on registrations. We know that the system has not been successful, to put it mildly.
A failure.
We hope it will be far more successful under the new system because the local authorities will have as their base data the details on properties, the tenants of which are in receipt of rent allowance, and the details on the current registered properties. This will allow the authorities to have a bigger base on which to build. I understand the purpose of amendment No. 22, but the language in it could not be used.
Amendment No. 24 in the name of Deputy Allen is to insert a new section that would impose a duty on landlords to ensure compliance with various building and environmental requirements. This amendment is not appropriate either. The requirements in question are already provided for in separate legislation, admitting Deputy Cuffe's point that they might not be enforced. However, I am advised that apart from being unnecessary, it is not appropriate to attempt to re-enact what would in effect be duplicate statutory provisions.
Where are they duplicated?
There is legislation covering that. The Deputy is referring to standards, and the associated regulations exist.
Where?
Is it the 1992 housing Act?
I do not know, I am asking the Minister of State.
It is probably the Housing (Standards for Rented Houses) Regulations 1993, which I referred to in respect of amendment No. 22. They outline the standards and it is to these I referred when speaking to Deputy Cuffe. I accept that enforcement is not carried out unless the local authorities receive complaints. However, the rules and regulations exist and what is needed is more enforcement. It is not necessary to have two statutory requirements stating the same thing. What we want — I agree with the Deputy in this regard — is better enforcement of existing provisions.
On amendments Nos. 26 and 27, I indicated on Committee Stage that I was disposed to accept the Opposition amendment to delete the reference to obligations being imposed by the board being consistent with the standards-regulations, subject to checking for legal implications etc. on the basis that there should be no question of the Private Residential Tenancies Board seeking to impose lower standards on private rented accommodation than are specified in regulations made under the Housing (Miscellaneous Provisions) Act 1992. I am advised that there would be no legal implications and therefore amendment No. 27 deletes section 13(2)(c). It is accompanied by a consequential amendment, No. 26, which deletes the earlier reference. These points were made on Committee Stage and we said we would consider them and try to take them on board.
I will press my amendment because of the unsatisfactory situation which exists. It should be brought home forcefully to landlords that they have a responsibility to comply with building and environmental regulations and that dwellings must be in a state fit for human habitation. Until now, they have either been unaware of their obligations under building and environmental regulations or are choosing to ignore them because they know that local authorities are negligent, unwilling or do not have the resources to enforce the regulations. Landlords who read the Residential Tenancies Bill 2003 and see that amendment No. 24 is included in the Bill will know their obligations.
Since the Minster of State is taking responsibility away from local authorities and giving it to the authority, what resources will the latter have to compile a national register and to inspect and monitor all rented properties? Is the Minister of State happy that it will do so adequately? More resources should be granted to the planning and enforcement sections of local authorities to carry out these functions rather than centralise them in a situation where the registration regulations will not be implemented. Will the Minister of State assure the House that the resources will be made available to do this major job of protection of tenants, which is a key element in the Bill?
I am anxious to move the debate on to more important later amendments. It would help if there was some enforcement of existing regulations and if local authorities had the resources to enforce them which, unfortunately, they do not. That responsibility does not rest on this side of the House. I hope the Minister of State will improve on that situation.
While I accept that the term "adjoining" may be a problem in amendment No. 22, the general thrust of the amendment could have been adopted and moulded by the Minister of State's officials, thus giving some sanction to local authorities. It is now nearly as cheap to buy a business as to buy a home. The price of homes is quickly heading towards half a million euro. People who commit themselves to such high levels of investment ought to be protected.
The Minister of State is right in what he says about the council housing schemes. I referred to one-time council housing schemes. Local authority houses which were bought under tenant purchase schemes over a period are being targeted along with more affordable private developments because they are within the reach of those who aspire to landlord success. Apart from the significant swathe of landlords who fail to live up to their responsibilities in terms of the upkeep of their properties, the existence of so many investors is putting these homes out of the reach of prospective home owner-occupiers, even couples with two incomes. Home buyers find that speculators are making the cost of homes prohibitive to many who view them as starter homes or as long-term homes.
Apart from the deficiency in the construction of the amendment which the Minister of State has pointed out, I urge him to accept its spirit and to take a proactive approach in support of the thrust of Deputy Morgan's amendment, which is eminently sensible and will be warmly welcomed universally. I leave my appeal with the Minister of State and hope he will respond.
Deputy Allen asked if I was confident the board will do its job. I am. One could say it would not be hard for it to do so because the previous system has not been a success. I believe the new system will work because while local authorities are good in many respects, they have a multiplicity of jobs to do and it is hard for them to concentrate on everything. We will have a board with a specific remit and specific functions to carry out and it will be much more focused on what it is doing.
The board will not take over all power. Local authorities will still have the job of following up and maintaining standards. The board will, in many cases, operate through local authorities, getting them to do inspections and field work. The local authorities will carry out this work at the request of the board and when they are being hassled or harried by the Residential Tenancies Board.
Is there a regulation that obliges them to do so?
The existing regulations make local authorities responsible for standards. The board will operate through the local authorities. The board will not send inspectors to Cork or Donegal. It will operate through the relevant local authority.
I accept that much needs to be done with regard to standards. It is my intention to begin a programme to promote standards and to draw up best practice guidelines. I accept that enforcement has not been satisfactory and that we must be proactive in enforcement. When the legislation has been enacted it is intended to review the standard regulations.
The fundamental issue is one of supply and demand. The pressure that has been felt in all areas of the housing market, from private rented accommodation to the purchase of very expensive houses, has allowed some landlords to get away with murder. If the housing supply had been more plentiful, sub-standard houses would not have been let so easily. The best cure for poor standards is more supply of better quality houses. As more than 68,000 houses were built last year and a similar number will be built this year, the supply of houses will increase.
We have all heard that rents, both in Dublin and elsewhere, have decreased from the all-time high of two years ago, although they are still very high. This decrease in rents is because the supply of houses has increased. This make us all a little more choosy and puts pressure on landlords who want to get a decent rent to provide accommodation of an acceptable standard. I intend to review the regulations but I feel that the extra supply in the market will make it more difficult to let bad accommodation. This will also exert a pressure on landlords.
The Deputy has two minutes.
I think I have more than two minutes when concluding the debate. I know that I have two minutes when intervening, but am I not entitled to more when I am concluding?
The Deputy may respond a second time, for which he has two minutes, then there is a final response. The Deputy responded a second time so he has double the time.
I am happy to make one contribution but to double the time.
There are two issues, first, the enforcement of standards in rented accommodation, where a tenant finds that the landlord is not looking after the property and the plumbing, electricity and water are not working and essential works that need to be carried out are not being done. Unfortunately, that is a regular feature of the private rented sector. I regularly come across examples of tenancies where the landlord is happy to take the rent and do absolutely nothing for it except bank it. The local authority is unwilling and in some cases unable to enforce the regulations as the property may not be registered. If the local authority takes the enforcement route, it ends up ultimately with an obligation to the tenant.
I remember a case in the middle of last winter when I stood in a flat which was absolutely freezing, as two of the windows were broken. It was a kip and the local authority had not condemned it and was reluctant to do so because if it did, it would have to provide housing for the tenants. There is a problem of enforcement. Under this legislation, the tenant has the right to go to the board and make a complaint and so on. There are flaws in the legislation, which I will outline when we come to deal with amendment No. 23 and related amendments. The issue of enforcement must be seriously addressed
The second issue was raised by Deputy Morgan who rightly outlined an issue with private rented dwellings. When one walks on to a road, one can tell immediately the dwellings that are rented. There is a problem with the maintenance of such dwelling, for example, cutting the grass and keeping the hedges trimmed. Incidentally, I see no reason that an able-bodied tenant should not be able to cut the grass if there is a lawnmower in the shed — let us not put all the responsibility on the landlord. The painting of the fascia and the deteriorating appearance of the dwelling is an issue. There is a provision in the Bill for people other than tenants to go to the board in certain circumstances, but it is very limited. It is somewhat flawed.
There is a wider issue that needs to be addressed and I would like to hear the views of the Minister on whether it should be addressed by separate legislation. There is a general problem. The Housing (Miscellaneous) Act introduced by my colleague, Deputy McManus, in the mid-1990s deals with anti-social behaviour, but only in respect of dwellings rented from a local authority. It does not apply to dwellings that have been purchased from a local authority, dwellings that are being rented privately or dwellings that are privately owned.
There is a neighbourhood problem, sometimes with the maintenance of the dwelling but also with the behaviour of the occupants of the dwelling who may not always be tenants. There is a need for legislation that will give neighbours a right to lodge complaints and have them addressed. A constituent told me a story of a neighbour who has a set on him and made his life hell. He makes noise in the middle of the night, knowing that the wife of my constituent is not well. He has created all kinds of difficulties for them and he gave me 12 pages of closely typed print documenting the hell that is being inflicted on him. There is nothing he can do. The Garda Síochána does not see it as the responsibility of the force to intervene in this area. It is a low level niggling irritation, which in this case is absolutely intolerable, and there is nothing the person can do about it. There is a need for this type of complaint to be addressed by legislation that will at least provide people with a means of making a complaint.
If there is a turn in the housing market, the owners of investment properties may sit on the properties in anticipation of a higher return on another day. We have experience of vacant local authority dwellings but we may yet have a problem when the rental market is depressed, with dwellings left vacant, creating difficulties for neighbours. This may become a growing phenomenon.
There is a way of dealing with this problem in local authority dwellings, but it is an entirely different matter where private dwellings are concerned. This must be addressed. If the Minister will not accept the amendments that deal with the general area, he must outline the consideration that is being given to the problem and how it will be addressed.
Amendment put and declared lost.
I move amendment No. 22:
In page 21, between lines 37 and 38, to insert the following:
"(iii) the exterior of the dwelling and the grounds on which the dwelling is situated, all repairs and works necessary so that the property does not fall into disrepair or become an eyesore and is maintained to a standard comparable with that of adjoining properties,".
Amendment put and declared lost.
Amendment No. 23 is related to amendment No. 103 and they will be taken together.
I move amendment No. 23:
In page 23, line 25, to delete "all".
This relates directly to what we have been discussing because under the two sections we are dealing with, section 12 relating to the obligations of landlords and section 51 relating to complaints by third parties in respect of the responsibility of landlords, one may make a complaint to the board but only in respect of the conditions of the dwelling.
Section 12(5) is the relevant section. It states:
For the avoidance of doubt, the condition in subsection 1(g)(i) is satisfied if, after all reasonable attempts, the landlord or his or her authorised agent could not be contacted to make the request concerned.
According to this legislation, before a tenant goes to the board, the tenant must have made all reasonable attempts to contact the landlord. Similarly in the later subsection to which amendment No. 103 applies, the third party has to have made all reasonable attempts to contact the landlord. I am referring to cases such as that mentioned by Deputies Morgan and Ó Caoláin involving a rented dwelling on a housing estate. If everybody can see that the grass is not being cut and the place is becoming dilapidated, as I understand it they have the right to go to the board and make a complaint. Before going to the board, however, they must have made all reasonable attempts to contact the landlord.
What does the word "all" mean? Does it mean they attempted to telephone the landlord? That would not comprise "all reasonable attempts" because they could have written to, e-mailed or sent a text to the landlord. They could have put an advertisement in the newspaper to contact the landlord. They could go to Leopardstown Racecourse and see if they could meet him or her in the betting ring. There are several ways of trying to contact the landlord. Under this legislation, one has to have exhausted all of them before going to the board to make a complaint. The same applies to the tenant if it is about conditions.
This does not change the general thrust of the Bill but I want the word "all" deleted. It is reasonable that a tenant or a third party would make reasonable attempts to contact the landlord and what is reasonable is perfectly capable of being decided by the board. If the word "all" is left in this section and the later section of the Bill, I predict the board will make a decision. A tenant or other person will go to the board. The board will decide, "You wrote to the landlord and the letter was not accepted but we will accept that you made a telephone call and wrote a letter and left a message on the voicemail."
Part of this relates to where a tenant carries out work and seeks to be compensated for it. The tenant says the heating broke down and he made an attempt to contact the landlord on a Saturday evening. He will say he telephoned his house and his office but only got a voicemail. There was nothing much else he could do on a Saturday evening and he got a plumber. He is now seeking recovery of the cost of the plumber. I can see the board will say, "That is fair enough. We will compensate you for the money."
What then happens is that some day, some landlord will refer that decision of the board to court. He will argue that the tenant did not make all reasonable attempts to contact him. The court will decide that "all" has no other meaning other than "all". "All" is all. If this word is left in the legislation, some day a decision of the board will be struck down. This whole framework put in place by the Minister of State whereby the tenant and a third party can make a complaint to the board about the responsibility of the landlord will come crumbling down because of that little word. I ask the Minister of State to take the word out.
We had a long discussion about this on Committee Stage when the Deputy made all reasonable attempts to get us to change our minds. We agreed to consider it again but I do not want to delete that word.
Will the Minister of State say why not?
I do not think it necessary. The word "all" is qualified by the word "reasonable". It is "all reasonable", not "all".
There is a difference. That is semantics.
Which is better? I do not know.
The word "reasonable" is qualified by "all", not the other way around. In this case, "all" is the adjective.
I do not think so. They are both linked. One is qualified by the other. There could be a danger that by deleting the word "all", a person complaining might argue that it might suffice, if there were two people, to communicate with one of the parties but not the other. I think it is safer for the sake of the effectiveness of the provision to retain the existing wording. The section was amended on Committee Stage to facilitate genuine complaints by third parties by enabling the board to provide it with the name and address of the landlord where necessary. It is a case of which word is emphasised. In my opinion, the word "all" is linked to the other. The phrase is "all reasonable". What is reasonable? It is "all reasonable" measures. The simple example is if there were two people to whom one could make a complaint, would it be sufficient to complain to one of them? I have reconsidered it since ——
Which is it in the Minister of State's opinion? If there are two people, is it enough to complain to one of them?
That might depend.
Which is it? It is the Minister of State's example.
I think the person should complain to both.
Is that what the Bill says?
It states one should make "all reasonable attempts". It is a case of which one. I say that the word "all" is qualified by the word "reasonable". The Deputy obviously has a very strong view on this. We discussed it at great length on Committee Stage. I cannot say that I could fully appreciate what the Deputy means.
I will take the Minister of State's example. If there are two people to complain to, let us say, the landlord and the landlord's agent, the Minister of State has just said that his understanding is that the tenant would have to contact both of them. The Minister of State is saying that in order for a tenant to make a complaint that will hold up before the board, in respect of——
Once it was reasonable and not if somebody is in China.
The landlord could be ex-directory.
The Minister of State has just now said that the tenant would have to contact both the agent, perhaps some auctioneer somewhere, and the landlord who might be in ——
Hong Kong.
——the south of Portugal with the rest of the tax exiles.
That comes back to what is defined as "reasonable".
The Minister of State said two people. Which is it?
I am saying all. I am saying the important word is "reasonable".
Which is it? The Minister of State said if there were two people to be contacted——
If it was reasonable. The important word is "reasonable", not "all". It would depend on what is reasonable. If they were both around town I think reasonable steps should be taken to contact both of them, but not if one is in China or wherever. Obviously that would not be reasonable. The important word which we discussed on Committee Stage at length is "reasonable". It is "all reasonable", not "all".
If that is the case, why is the word "all" required?
I ask Members to put an end to this dialogue. We are on Report Stage. Please complete your remarks.
I apologise to the Chair. Having reconsidered this amendment, I am not inclined to accept it.
The only conclusion I can draw is that the Minister of State is leaving the word "all" in the text to provide protection to landlords. This section is an exercise in make-believe because it gives tenants rights they will not be able to exercise. The formula of introducing an arrangement whereby a tenant who finds a problem with the standard of a dwelling can make a complaint to the board is a good one. If an urgent circumstance arises, for example, a pipe bursts, the electricity goes off or a window is broken, and the tenant is unable to contact the landlord and arranges for the work to be done, he or she will be able to go to the board to seek recompense in the event that the landlord refuses to reimburse him or her for the cost of the work.
Similarly, in respect of amendment No. 103, if all manner of carry-on is taking place in a let dwelling, the person living next door may go before the board and make a complaint against the landlord of the neighbouring dwelling. The Minister of State is correct that on Committee Stage we provided for an arrangement whereby the board would, in such circumstances, inform the neighbour as to the identity of the landlord to enable him or her to make contact. This provision was not in the original text but inserted by an amendment in my name.
The problem is that the requirement for contact is too strict. The tenant must contact the landlord and his or her authorised agent or make "all reasonable attempts" to do so. Members understand what is meant by the term "reasonable attempts" and the Minister of State is correct that "reasonable" is the operative word in this context. I believe the board will be capable of deciding what is reasonable in the circumstances. If, for example, something goes wrong in an apartment, even on a Saturday night, reasonable attempts would involve more than making a routine telephone call. If the landlord is not at home but it is possible to track him or her down, it is not unreasonable to expect the tenant to make some attempt to do so, even if that involves telephoning a function, a golf club or elsewhere and attempting to page him or her.
The term "all reasonable attempts" has a much wider meaning and will, in due course, make it impossible to enforce these sections. This is due to the inclusion of the word "all", for which the Minister of State has given no justifiable reason. It is interesting that he emphasised the word "reasonable". The word "all" in this context can only be construed as placing an obligation on the tenant to use every means available to make contact with the landlord, including, if necessary, cycling to his or her house.
We have considered the proposals since Committee Stage and I have listened to the Deputy's comments. Ultimately, the board will decide whether people made a reasonable attempt to contact their landlords, which is the purpose of the section. While a tenant may not be able to contact the landlord, the question will be whether he or she made only one telephone call in an effort to contact him or her or tried two or three options. Whether contact was made is another issue and the board will decide on these questions. Tenants would not be expected to travel around town on a bicycle. The board will adjudicate on the circumstances and related matters.
The section tries to convey that tenants are obliged to make reasonable efforts to contact their landlord. It would not be sufficient for a tenant to telephone one person without bothering to telephone another possible contact. He or she should make all reasonable efforts, with "reasonable" being the important word. The board will adjudicate on the matter.
Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 24:
In page 23, between lines 27 and 28, to insert the following:
"13.—(1) The landlord shall ensure that—
(a) the dwelling is in a state fit for human habitation, and
(b) the dwelling is in compliance with the Building Regulations, and
(c) the dwelling is in compliance with the Environmental Regulations.
(2) The landlord shall ensure that the dwelling is available for inspection at all reasonable times by authorised officers from the relevant local authority and health board.".
Amendment put and declared lost.
I move amendment No. 25:
In page 23, between lines 27 and 28, to insert the following:
"13.—No provision of any lease, tenancy, contract or other agreement (whether entered into before, on or after the relevant date) may operate to discharge or relieve the landlord from any of his or her duties or responsibilities under this Act or which would defeat the spirit of this Act.".
Amendment put and declared lost.
I move amendment No. 26:
In page 23, line 38, to delete "subject to paragraph (c),”.
Amendment agreed to.
I move amendment No. 27:
In page 23, to delete lines 42 to 48 and substitute "on landlords.".
Amendment agreed to.
Amendments Nos. 29 to 32, inclusive, and 72 are related to amendment No. 28 and all may be discussed together.
I move amendment No. 28:
In page 24, line 1, after "dwelling" to insert "or his or her agent".
This series of amendments, which was considered on Committee Stage, was suggested by Threshold. In respect of amendment No. 28, Threshold requested that the prohibition against penalisation should be extended to acts of agents. It was suggested that amendment No. 29 be included in the Bill to introduce a sanction for a breach of section 14 by way of complaint to the board. Amendment No. 30 was also suggested by Threshold as it considered that the definition of "penalisation" was somewhat narrow.
Having discussed them on Committee Stage, I am not in a position to accept any of the amendments. As regards amendment No. 28, the insertion of references to agents at particular points in the Bill is not appropriate. The relevant requirements are addressed throughout the Bill to landlords, which means that responsibility in all cases rests with landlords, including responsibility for actions of persons acting as agents of the landlord. This means, for example, that any disputes or complaints to the tenancies board or other proceedings will be addressed in the context of the landlord. This ensures there will be a clear, single, ultimate location of responsibility for all actions or failures as regards landlord obligations, irrespective of whether the act in question involved an agent. Inclusion of a reference to agents could only weaken this provision and create scope for doubt and confusion. Agents will be answerable to landlords who engage them, as is the case in any arrangement in which one party engages another to act on his or her behalf. The same applies in the case of tenants, for example, regarding rent being paid through a bank, although this is a less likely occurrence in that context.
With regard to amendment No. 29, legal advice is that making penalisation of tenants an offence would not be appropriate. It would not be likely to prove useful in practice. Section 14 prohibits penalisation of tenants and if a complaint to the board is upheld damages can be awarded. Non-compliance should not arise but if it does, the section should be invoked to put an end to the penalisation rather than to initiate proceedings in the courts. This will provide the most effective and speedy remedy.
With regard to amendment No. 30, it would not be appropriate or beneficial to insert examples of a few matters that might be deemed to involve penalisation. This would only be likely to detract from the effectiveness of the provision. The section provides the most comprehensive definition of "penalisation" in regard to any action that adversely affects the tenant enjoying peaceful occupation of the dwelling and by specifying that such action may constitute penalisation even if it involves action by the landlord that would otherwise be legal. The amendment proposes a blanket provision and it is not recommended that individual examples should be specified.
Amendment No. 32 is a technical amendment to replace the word "to" with the word "of" when referring to the proximity and time of a right being exercised under section 14(3)(b).
If the Minister of State was out in Michael Davitt's time, Captain Boycott would have got off the hook. The Minister does not want to do anything to ensure agents have responsibility.
Amendment put and declared lost.
I move amendment No. 29:
In page 24, between lines 13 and 14, to insert the following:
"(2) A landlord or agent who contravenes subsection (1) shall be guilty of an offence.”.
Amendment put and declared lost.
I move amendment No. 30:
In page 24, line 16, after "concerned" to insert the following:
"and reference to penalisation includes increasing rent, service of a Notice to Quit, or failure to carry out repairs".
Amendment put and declared lost.
I move amendment No. 31:
In page 24, between lines 16 and 17, to insert the following:
"(3) Such action includes, but is not limited to——
(a) harassment,
(b) intimidation,
(c) abusive or threatening behaviour, or,
(d) retaliatory notice to quit.”.
Amendment put and declared lost.
I move amendment No. 32:
In page 24, line 23, to delete "to" where it firstly occurs and substitute "of".
Amendment agreed to.
Amendments Nos. 33, 33a, 34 to 44, inclusive, 47 and 48 are all related and may be taken together. Amendment No. 36 is an alternative to amendment No. 35. Amendment No. 43 is an alternative to amendment No. 42.
I move amendment No. 33:
In page 25, line 24, to delete "in advance".
The requirement that access to the dwelling must be agreed in advance is restrictive, particularly as we must have regard to the workability of the legislation.
Amendment No. 34 relates to a drafting issue. As section 14 (3)(g) is phrased, the landlord would be entitled to compensation. The paragraph does not specifically state the landlord is entitled to take the repairs in hand and, therefore, this needs to be stated. The landlord could repair the damage done rather than be compensated.
Amendment No. 40 relates to the insurance policy. It is extremely vague to state, "It shall be a condition of the lease that visitors are not allowed to do anything that would increase the premium payable under an insurance policy". Apart from the impossibility of knowing what this means, this gives an undue role to insurance companies in determining the terms of leases throughout the State.
With regard to amendment No. 33, the reason for the requirement for a landlord to agree in advance with a tenant a date and time of gaining access to a dwelling is to avoid scenarios where the landlord or the agent might arrive unexpectedly at the tenant's door and seek access. I am surprised the Deputy wants the words "in advance" deleted.
On amendment No. 34, if a tenant causes damage beyond normal wear and tear and does not repair it, the landlord has no option but to undertake the repairs himself or herself and seek to recoup the cost from the tenant, otherwise the landlord could be in breach of his or her statutory obligations under the standards regulations. It would not be appropriate to make the landlord's right of repair in such circumstances subject to obtaining the tenant's permission. Perhaps Deputy Gilmore might reconsider the amendment.
I refer to amendments Nos. 37 and 38. The absolute right to withhold consent to subletting provided for in the legislation was recommended by the Private Rented Sector Commission. It is appropriate, in the context of the four-year security of tenure measure, and it is accompanied by a provision in section 186 whereby tenants bound by a fixed term agreement are given the absolute right to terminate the tenancy where consent to assignment or subletting is refused. On Committee Stage the Deputy understood subtenant to mean a person or persons residing with the tenant. We have since clarified that it means another person taking a new tenancy from the tenant who then becomes the landlord to that subtenant and, consequently, no longer resides in the dwelling.
We re-examined amendment No. 44 but it is still reasonable to require the tenant to obtain the landlord's consent before altering a door lock on a rented dwelling. The legislation imposes specific restrictions and obligations on the landlord in regard to access to the dwelling, including the need to agree a date and time with the tenant. These are designed to ensure there is not an unreasonable intrusion by the landlord or agents. Any breach of these provisions can be addressed by referring a complaint to the tenancies board. Of course if there is a need to repair or replace a locking system this would come under the obligations the landlord must discharge.
Amendment No. 47 is not necessary. If it transpires that a landlord has to incur costs in dealing with a request from a tenant it is reasonable that he or she should be reimbursed by the tenant. One could say that a proposal to carry out alterations or to change the use of a property could mean the landlord would have to engage suitably qualified personnel to assess the implications of the proposal. In any event the provision is qualified in that it is restricted to reasonable costs so that the landlord does not have carte blanche in the matter. Under sections 66, 67 and 68 of the Landlord and Tenant Act 1980, landlords are entitled to recoup reasonable costs incurred in considering such applications for consent. Those sections will no longer apply to dwellings covered by section 193 of this Bill.
Amendment No. 33a in my name proposes the deletion of the word “to” from paragraph (f). It is a late technical amendment, which was only notified the other day by the draftsman.
There is a contradiction in the Minister's position on access to a dwelling. He was surprised that I expressed caution in my amendment about the requirement that inspection of a dwelling would have to be agreed in advance between landlord and tenant. I accept it has to be agreed, clearly, but there are circumstances in which a landlord might want to inspect a dwelling at very short notice. He might well want to knock on the door and see what is going on. I may have given this example on Committee Stage but a landlord showed me photographs of the livingroom of an apartment full of newspapers. In the middle of those newspapers was a lit electric bar heater, and the place could have gone up in smoke. There are circumstances in which a landlord might well want to see what is happening at short notice. The Minister of State does not want to allow for that, he wants to provide for advance notice in all circumstances, but on the other hand he does not want to give the tenant the right to change the lock.
That proves the point the Deputy is making.
No, the Minister of State is teeing up a nonsense. He is saying that legally the landlord has to agree entry but at the same time he has a key and could enter any time he liked, although of course he would be trespassing.
As for changing the lock and not allowing the landlord a veto on that, I cited circumstances in which a tenant may be afraid of the landlord. A female tenant may be uncomfortable with her landlord and uncomfortable with the lock on the door. She may not wish to ask for permission to change the lock. She should be entitled to change it, but under the legislation she will not be allowed to do so.
We debated this on Committee Stage and I do not propose to repeat that debate, but I am disappointed the Minister of State has not squared this up.
Amendment, by leave, withdrawn.
I move amendment No. 33a:
In page 25, line 36, to delete "to".
Amendment agreed to.
Amendment No. 34 not moved.
I move amendment No. 35:
In page 26, lines 12 to 15, to delete all words from and including "might" in line 12 down to and including "policy" in line 15 and substitute the following:
"would result in the invalidation of a policy of insurance in force in relation to the dwelling,
(j) if any act of the tenant’s, or any act of another occupier of, or visitor to, the dwelling which the tenant has allowed to be done, results in an increase in the premium payable under a policy of insurance in force in relation to the dwelling, pay to the landlord an amount equal to the amount of that increase (‘the increased element’) (and that obligation to pay such an amount shall apply in respect of each further premium falling due for payment under the policy that includes the increased element)”.
Amendment agreed to.
Amendment No. 36 not moved.
I move amendment No. 37:
In page 26, lines 17 and 18, to delete "may, in his or her discretion," and substitute "shall not unreasonably".
Amendment put and declared lost.
Amendment No. 38 not moved.
I move amendment No. 39:
In page 26, line 30, after "notify" to insert "in writing".
Amendment agreed to.
Amendment No. 40 not moved.
I move amendment No. 41:
In page 26, line 31, before "residing" to insert "ordinarily".
Amendment put and declared lost.
I move amendment No. 42:
In page 26, line 31, to delete "residing for the time being" and substitute "who, for the time being, resides ordinarily".
Amendment agreed to.
Amendment No. 43 not moved.
I move amendment No. 44:
In page 26, to delete lines 35 and 36.
Amendment put and declared lost.
Amendments No. 45 and 46 are related and may be taken together.
I move amendment No. 45:
In page 26, line 42, after "offence," to insert "or behaviour which gives rise to an action for nuisance under common law,".
This amendment is self-explanatory and amends the definition of anti-social behaviour. The measure should be extended slightly to include nuisances committed in common law. That is the reason I am moving the amendment.
Some criticisms were voiced on Second Stage to the effect that the definition of anti-social behaviour in the Bill was not sufficiently clear. Inclusion of the proposed reference to an action of nuisance in common law would make the definition much more uncertain. The term "nuisance" is vague and actions for nuisance can and do involve matters that would not warrant being classified as anti-social behaviour.
I agree with Deputy Gilmore's proposed amendment No. 46, which suggests inserting a reference to causing fear. This seems consistent with the reference to intimidation among the actions given as examples of what is covered later in the paragraph. I regret I cannot accept amendment No. 45.
I welcome the Minister of State's response to that amendment which we discussed on Committee Stage. We know there are many examples of cases where the behaviour of some people causes fear among other tenants, and it is not confined to the private or public rented sectors. It may be bullying-type behaviour which often occurs in housing estates or it might be people setting themselves up as vigilantes, police or whatever and threatening other residents or simply implying a threat. If the behaviour causes fear among others, then clearly it would be defined in this legislation as anti-social behaviour and could be dealt with accordingly.
Amendment, by leave, withdrawn.
I move amendment No. 46:
In page 26, line 45, after "cause" to insert "fear,".
Amendment agreed to.
I move amendment No. 47:
In page 27, to delete lines 21 to 25.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 48:
In page 27, between lines 25 and 26, to insert the following:
"(4) If the amount of the premium referred to in section 16(j) is, apart for the reason mentioned in that provision, subsequently increased or reduced then the reference in that provision to the increased element shall be construed as a reference to the amount concerned as proportionately adjusted in line with the increase or reduction.”.
Amendment agreed to.
I move amendment No. 49:
In page 27, line 35, to delete "every other Part of".
Amendment agreed to.
I move amendment No. 50:
In page 27, line 36, after "Act" to insert "and do not limit the landlord's statutory obligations under this Act".
Amendment put and declared lost.
Amendment Nos. 51 to 56, inclusive, 60a and 159 are related and amendments Nos. 54 and 55 are cognate. Amendments Nos. 51 to 56, inclusive, and amendments Nos. 60a and 159 may be taken together.
I move amendment No. 51:
In page 27, line 41, to delete "market" and substitute "fair".
I will also refer to amendments Nos. 56 and 159 because all these amendments are aimed at establishing a mechanism to ensure a fair as opposed to a market level of rent. The best mechanism is a book of quantum with which we are familiar because it was discussed during the debate on the Civil Liability and Courts Bill earlier. I propose a similar book of quantum, which would be a fair and reasonable method to ensure that rip-off merchants are rooted out of the private rented sector. It would go a long way to ensuring an end to rack-renting by landlords. A book of quantum would also ensure that even if the market moved, the book of quantum would move accordingly because its construction would embrace an entire area in terms of arriving at the cost of rent. If the private rented sector is to be a viable long-term option, then we must deal with the overpricing in the sector and I suggest the book of quantum is the fairest means available to do so.
Amendments Nos. 54 and 55 refer to the notice landlords must give tenants for the purpose of increasing rental levels. The Bill provides for 28 days but I propose an amendment because 28 days is not enough time for tenants to adjust their budget in the case of rent increases. It is important to remember that many people get paid on a monthly basis. To adjust to the new rental level, I suggest an additional month is necessary. We all know many people in the private rented sector pay a substantial proportion of their income on rent, which is their greatest expenditure. That being the case, one month, or 28 days, is not enough for tenants to be able to adjust to meet that requirement.
In any event, it is unlikely that landlords will decide on a whim to give one month's notice of a rent increase. We would reasonably expect landlords to give some consideration to a rental increase before implementing it. All we are asking landlords to do, therefore, is to give an additional four weeks' notice to the tenant. That is a reasonable request. I hope the Minister of State will consider the amendment positively.
Amendment No. 60a in my name refers to a similar issue. It brings us back to the three Fs for which Michael Davitt campaigned during the Land League in the 1870s. They included fair rent, fixity of tenure and freedom of sale. In the context of this Bill, there are not three Fs; there is not even one F being delivered in full to the tenant. If there is an F being delivered to the tenant, it is an F that was not envisaged by Michael Davitt and which cannot be repeated in this House. The tenant is not getting a fair deal in this legislation. We need a fair rent as my colleague, Deputy Morgan, said. The Green Party has attempted to define that. We believe a fair rent should not increase dramatically over time and that any annual rent increase should be capped at 5% over the rate of inflation in any given year.
We do not believe market rents are fair in our towns and cities in 2004. Many of the most vulnerable tenants in our society have faced massive rent increases over the past few years — sometimes in excess of 50%. That is not fair on those tenants who are often lone parents. We cannot allow that to continue and we must put some modicum of respect for tenants into the legislation. I am not looking for rents to be cast in stone and not allow any possibility for change. I believe we are allowing for a reasonable amount of change over time. We believe 5% annually over the rate of inflation is reasonable. We do not believe it will grind the market to a halt. It will give a certain quantum of respect for the tenant and for the landlord. I will press my amendment on this issue.
I am not convinced that the fixity of tenure referred to in the Bill is the right way to proceed. After six months, the tenant, subject to various conditions, has a right to remain for four years but, at the expiry of those four years, the landlord can give 16 weeks' notice to the tenant. I do not believe that is the right way to proceed. A fairer way to proceed is for rights to accrue to tenant and landlord on an incremental basis. We suggest that, after one month, a right of a 20% time to remain should kick in. In other words, after five weeks there should be one week's tenure in favour of the tenant, after five months the figure is one month, after five years it is one year, and after 20 years it is four years.
On a sliding incremental scale, rights should accrue to the tenant, which would be a fairer way to proceed. It would bring about a more mature market since many people are renting in fear because they feel they can be kicked out without too much notice. If the Bill is enacted as currently drafted, tenants could be kicked out after four years with 16 weeks' notice. Even after 16 years, the fourth period of occupation, they could still be kicked out with 16 weeks' notice. That is not fair, particularly for elderly tenants who are seeking some continuity and certainty concerning the period they can remain as tenants.
It is fair that after 16 years one can give four years' notice. It gives the landlord a reasonable expectation of what he or she can do, as well as giving the tenant a reasonable expectation of what can happen. It is not fair, however, every four years to be dumped in it, and told that one can be kicked out with 16 weeks' notice. That principle does not apply in the rest of Europe and it is not one that should be applied here.
The legislation does not provide for fair rents or a fair analysis of fixity of tenure. My amendments, along with Deputy Morgan's amendment seeking fair rents, would go a long way towards improving the legislation by giving a degree of maturity to the market. They would give respect both to the landlord and tenant. That is the least we should expect in this type of legislation.
Rents in the private rented sector are daft. In Dublin and other large urban areas, the levels of rent that private sector tenants are required to pay are higher than the mortgage for the same property. People are paying €1,000 to €1,200 per month in rent for a three-bedroom dwelling, but it would cost them less to pay the mortgage for the same property and they would still have a considerable amount left over.
There is some evidence that the rent situation may be turning. There is certainly anecdotal evidence that the increased supply of rental properties over the past year or 18 months is beginning to have some impact on rents. For the past four or five years tenants have been the victims of this market, which has been distorted by the Government's failure to deal with housing. The market is distorted because it is full of people on low incomes who cannot get local authority housing and so have to rent privately. They cannot afford to buy because of what has happened to house prices. If people are on social welfare they will at least get a rent allowance, but if they are working and on a low income they are being screwed by high rents. Such people have been the victims of rising rents in an upward market in recent years.
I realise this is a judgment call, but if we are now at a point where the market will begin to work somewhat in favour of the tenant and cause some kind of downward pressure on rents, then I would be in favour of allowing the tenant to benefit from that. I understand the aim of Deputy Morgan's amendment is to ensure that the new rent would not kick in for 56 days, rather than 28 days. If the rent is going up, I am in favour of that and make no apology for it. If however, rents are being adjusted downwards, which may be happening in some cases, I do not see why the landlord should have the benefit of an additional month at the higher rent. While I accept what is behind Deputy Morgan's amendment, in a situation where there may be a downturn in rents, it may work the other way.
In respect of my amendment No. 52, where a landlord is seeking an increase in rent, the burden of proof should be on the landlord to show that the increased rent is not higher than the market rent. Or the burden of proof should be on the landlord to show that the existing rent is in line with market rent, and not ahead of it. In the absence of that, the burden of proof will shift to the tenant but many tenants cannot shop around and there is no list of prevailing rents in a given area. The amendment is important in that it seeks to place the burden of proof on the landlord to show that the rent is in line with market rent.
I cannot accept amendments Nos. 51, 56 and 159 to sections 19, 24 and 152, respectively. They would in effect amount to a form of rent regulation by the private tenancies board, which is not one of the functions envisaged for it by the commission on the private rented sector. The board will not necessarily be bound by everything the commission said, but its report is the base document from which we have derived the legislation. It also contravenes the commission's strong opposition to all forms of rent control, in view of the adverse effects rent control has had in the past, both here and elsewhere.
The rent provisions in the Bill are based on ensuring that the rent charged to any tenant does not exceed the going market rent for the type, standard and location of property involved. That is the term the commission went by — not fair rent, but market rent — and that is the concept we are working on. The provisions proposed by Deputy Morgan would not be compatible with this approach. Moreover, they would allow the charging of rents above the market rate where the commission considered such rents to be fair. Such provisions would not mean that tenants would always benefit from the impact that a greater supply of rental accommodation should have on rent levels. However, one of the functions of the board is to advise me of any legislative amendments that seem to be necessary, particularly concerning the operation of the provisions in Part 3 dealing with rent setting and rent reviewing. If the board ever forms the view that market rent is being manipulated, it will advise the Minister of the day that this aspect of the legislation is not working as was intended, and will make recommendations for its amendment.
As regards amendment No. 52, which seeks to prove that the increased rent is not above the market level, the legal advice is that it is not necessary or appropriate to include specific provisions in the Bill concerning the onus of proof in disputes about rents, or any other disputes coming before the board. It will be primarily for the board, in developing its disputes resolution procedures, to adopt an appropriate approach to the onus of proof it will apply in respect of any dispute coming before it, subject to all the usual requirements. It is considered that the dispute resolution provisions are as explicit as would be appropriate. It would not be appropriate to assign the onus of proof to landlords on an across-the-board basis. Deputy Gilmore referred to the onus of proof, but the position is that whoever brings the case will have to prove it, which is as it should be.
Debate adjourned.