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Seanad Éireann debate -
Monday, 29 Mar 2021

Vol. 275 No. 6

Residential Tenancies Bill 2021: Committee and Remaining Stages

I welcome the Minister of State, Deputy Peter Burke, and his official to the Chamber.


Amendment No. 1 is in the names of Senators Warfield, Ó Donnghaile, Gavan and Boylan. Amendments Nos. 1 and 2, amendments Nos. 7 to 13, inclusive, and amendments Nos. 15 to 18, inclusive, are related. Amendment No. 2 is a physical alternative to amendment No. 1; amendment No. 8 is a physical alternative to amendment No. 7; amendment No. 10 is a physical alternative to amendment No. 9; amendment No. 13 is a physical alternative to amendment No. 12.; amendment No. 16 is a physical alternative to amendment No. 15; and amendment No. 18 is a physical alternative to amendment No. 17.

Amendments Nos. 1 and 2, amendments Nos. 7 to 13, inclusive, and amendments Nos. 15 to 18, inclusive, are related and may be discussed together by agreement.

I move amendment No. 1:

In page 4, line 5, to delete “12 July 2021” and substitute “31 December 2021”.

My priority today is to protect as many renters as possible. The number of renters who have sought protection under the existing Act is 407, which has been confirmed by the Residential Tenancies Board, RTB. I wish to again place that figure of 407 people on the record of the House.

In the Dáil, the Minister, Deputy Darragh O'Brien, seemed to think it was a good thing that only 407 people have self-declared in this manner. Our point is not to do with whether that number should be higher or lower. It is basic logic that if we are extending protections to 407 renters out of all the private renters in the market, we cannot simply claim that this is a good or great Bill for renters. We seek, therefore, to primarily limit the damage of section 2, which I will come to. I move amendment No.1, however, which extends protections from 12 July to 31 December 2021.

I have tabled a number of amendments to this section. I am happy to yield my amendments, which seek an extension to October, in favour of the amendments put forward by Senator Warfield, which seek an extension to December.

There are three key points on this. One key concern I have in terms of timing is that this is the fourth Bill in this regard, again rushed through the House in an hour and a half followed by a guillotine. This shows no actual respect for this House in terms of any potential to amend or improve the legislation. While it may have been justified in the early stages of the pandemic, by rushing legislation through in this way a year in it looks like the preference for Government is not to have our legislation subjected to scrutiny in respect of the very important area of rental protection. We know that is the case in terms of the vote that happened during pre-legislative scrutiny of this Bill. It is not acceptable, however. It is an erosion of democracy and there is no excuse.

When this rolls around again, whether it is in July, as the Minister has suggested, in October, as I propose, or in December, as Senator Warfield has proposed, will the Minister of State guarantee that he will come to us a month in advance and give time for the House to debate this on both Committee and Report Stages? Will he give it due and proper scrutiny? It is, I hate to say, an arrogance and a misuse of this House if it is treated like a rubber stamp where measures are pushed through at the last moment, designed so as to avoid us fulfilling our constitutional function.

Another key aspect is the issue of who is considered a "relevant person", in respect of which I have tabled amendments. We discussed in this House the fact that it would not work. A point was again made in this House that was not taken on board.

This aspect is not working because people are not self-declaring.

The other issue we highlighted the last time this legislation came through the Houses was the potentially catastrophic implications of tying ourselves to a 5 km limit. If, as may well be the case, the 5 km limit is lifted tomorrow, it will remove protections for almost every private renter in the State. It is extraordinary, when we have an opportunity with this legislation to extend the emergency period, that we are not also extending its scope by not limiting and tying ourselves to the 5 km limit. It is extraordinary that the opportunity to do that has not been taken.

We will have the chance to address the distance and the issue of relevant person in later discussions but I am signalling those matters now. I do so in the context of the time extension. I hope the Minister of State will indicate that he intends to make a change in that respect. A good start would be if we extended the time limit to October, as I have proposed, or to December, as Senator Warfield has suggested. I will support the Senator's amendments as well as mine.

The Minister of State is welcome to the House. I must agree with my colleagues, Senators Higgins and Warfield. What we do not want now are short, stop-start measures. We want some degree of certainty. Everybody accepts that this country and the world as a whole will not be back to normal trading and living conditions in 2021. As vaccines are rolled out, we will see slow progress back to normal.

It strikes me that it is a waste of parliamentary time to have provided for an extension to July in the legislation. If we extend the time limit to December and things turn out better than expected, say, by October, as suggested by Senator Higgins, or early December, we could repeal the Bill. That would be great as everybody would be a winner. Right now, however, we are wasting parliamentary time by bringing back Bills with a short lifespan attached to their provisions. Everybody wants a sunset clause whereby provisions of a Bill that have implications like this for landlords will cease to have effect.

I mean no disrespect to the Minister of State because he is not the person who made the decision about how this House would treat this Bill. We are a constitutional House and our job is to query and interrogate legislation and try to improve it. All too often, since Covid-19 hit the country, all Stages of legislation are debated in the House in an hour and a half. With other Bills, we have had three hours to get them through the House. That shows zero respect for us. If an amendment is accepted today, the legislation will have to go back to the Dáil. We know the Minister of State is not going to do that, and the Minister of State and everybody else in the House knows it. We have a job to do in proposing what we believe to be worthy amendments in order that they are at least on the record.

I said earlier that I believe the Government is almost paralysed by Covid-19. I do not blame it because we find ourselves in a catastrophic situation. When the Government starts to dispense with normal parliamentary activities, it is not good for legislation or the people. Senator Higgins noted that we will deal later with the amendment to section 2. She is dead right about it being likely that the 5 km limit will be lifted tomorrow, a week from tomorrow or in the next few days. Eminent lawyers in this room and representatives from Threshold and the Simon Community have told us that when that 5 km restriction is lifted, the protections in the legislation will also be lifted.

I find it deeply regrettable and a gross waste of the constitutional function of this House to have legislation rammed through here week after week. It simply is not good enough. I am sorry to be raising this with the Minister of State, who is just here to do a job. However, we also have a job to do and this House is worthy of greater respect. I ask the Minister of State to take that message back to the Minister and get it onto the Cabinet table. I am getting very tired of this, as is the public. I thank the Minister of State for his time.

Cuirim fáilte roimh an Aire Stáit. Tá áthas orm deis a bheith agam labhairt ar an mBille seo. It is a fairly straightforward Bill which provides for an extension of the emergency provisions by three months. Those provisions may need to be reviewed again in three months' time but we all hope we will be back to some kind of semi-normal state by 12 July and that rent arrears will not be as urgent an issue. We are open to moving dates if needs be, as we are in this Bill. For now, it is unnecessary to jump to December. In the case of rent arrears, increasing the notice period from 28 days to 90 is a massive change. When I was a renter, for 20 or 30 years, that would have been a huge change for me. If one was falling behind on the rent, one only had four weeks to get it together. Ninety days, or three months, is a very significant period and would take the extension from 12 July up to 12 October. That would be a massive extension.

There must be protections for both landlords and tenants. We need to encourage people who have two or three houses to rent them to tenants. Otherwise, we will see Airbnb take over and there will be no places left to rent. There has to be some balance. I am not a landlord. I struggled in the past to find houses to rent. Much of that problem was due to Airbnb or situations where there were seasonal moneys to be made. This is a huge issue in my area of north Clare. There must be better protections for landlords. In fact, I hate the word "landlord". Homeowners with a second or third home need to have security that there will be some supports in place if tenants cannot pay. If those tenants have a genuine reason for not paying, such as having lost their job, they are supported by the State.

I welcome the Bill. There is a large number of amendments and I look forward to the debate on them. I wish the Minister of State the best of luck in progressing the Bill.

On the proposal to extend the emergency provisions until October or December, both the Minister of State and the Minister are on record, in the Dáil and in this House last week, regarding the openness of the Department to consider a further extension, after July, should we find ourselves in circumstances that require it. When the Minister for Health was in the Chamber earlier, he indicated that 80% of the adult population would have received at least one dose of vaccine by mid-June. It is my sincere hope that we will not be in a position where we have to extend the provisions beyond July because of ongoing restrictions.

I note Senator Craughwell's criticisms of the curtailed nature of the legislative process. While I appreciate his genuineness in this regard, perhaps he is not familiar with what officials told us at a meeting of the Joint Committee on Housing, Local Government and Heritage about the urgent need to get this legislation through the Houses and the necessity of waiving pre-legislative scrutiny to prevent protections from lapsing on 12 April for the large number of people who are currently covered by them. This was a gamble that I, as a legislator, was not willing to take. That is why the Oireachtas committee made the decision to waive pre-legislative scrutiny.

I compliment the Minister of State and his officials on the speed with which this legislation was brought before the Houses. Of course, we would all love more time to debate this very important legislation and the Oireachtas joint committee would have liked the opportunity to engage in pre-legislative scrutiny but, given the urgent pressures on time, it was necessary to waive this in order to speed up the process and get this Bill through.

I have two things to say. First, I support Senator Cummins. The specific word used was "catastrophic". One cannot but respond to that. While I would rather have extended debate - the Senator was absolutely right on that point - in light of the circumstances and the advice from officials, we felt there was no choice but to move quickly and immediately.

In the next 24 hours, decisions will be made which will, I hope, remove the 5 km restriction. It is really important that a stand-alone right which has nothing to do with that restriction is created, and that is what this legislation does. There will be a stand-alone right to protections for people who have been affected by Covid. This has existed in legislation up to now, although in a different way which inextricably links it to the 5 km restrictions, but we are now creating a stand-alone right for people who are in arrears and who have been affected by Covid. That is what this legislation does. There is a little bit of a misunderstanding around it but, to be fair, the Minister of State and his officials could not have been more emphatic the last day we debated the Bill and in their advice to us in saying that this stands alone and is separate. As a consequence, given that this impact is so linked to Covid, it is reasonable that it is set within a proportionate time frame. The extension to 12 July is a proportionate response in legislation.

It is also correct that this will come back before us, as legislators, for review if the date needs to be extended or if the situation in respect of Covid were to get worse, which we hope it will not. It would be wrong to have set out a long or open-ended timeframe and to have left any extensions to a statutory instrument. It is better that the matter come before us again so that all of us in this House can have a say on it. Consequently, I do not support the amendment to extend the expiry date beyond 12 July as this date represents a proportionate restriction on what is, at the end of a day, a constitutional right to private property.

I agree with my colleague, Senator Seery Kearney, with regard to the amendment. I welcome the Minister of State back to the House. It is fair to say that this legislation provides more clarity and protection for people who are renting than is provided to them in most other countries in the world. The protections provided in this legislation would probably not have even been considered two or three years ago but, because of the situation we are in, they are being considered now. It is reasonable to come back here if this measure is to be further extended, beyond 12 July. The important thing is that the protections are there. Many people have benefitted from them. There are thousands of people who are in arrears with their mortgages and there are also thousands who are in arrears with rent. There are thousands of landlords who are in arrears with mortgages, particularly people who might only have one or two houses and who find themselves on the pandemic unemployment payment and not in a position to fulfil their mortgage commitments. It is not easy for them either. We always have to be cognisant of their situation. There is a reasonable expectation that people who, through no fault of their own, find that they cannot pay their rent would receive the protection of our State in the middle of a pandemic. That is essentially what this legislation will do and what associated legislation has done.

It is crystal clear. Reviewing the legislation after 12 July is appropriate and I would not support an extension.

I agree with previous speakers that the measures in the Bill are a proportionate response to a difficulty. It is important to point out that no matter what happens, no legislation we pass will cover every eventuality. There will always be people who require protection and do not get it because it is almost impossible for legislation to conceive of every eventuality, circumstance and individual case. Every individual case will have its difficulties.

My colleague, Senator Conway, referred to accidental landlords who may have difficulty paying their mortgage, and regard must be had to them as well. I am conscious, for example, that in recent weeks the protections provided by section 35 in respect of disallowing the de facto eviction or notice being given to more than ten properties in a single development have been used at St. Helen's Court in Dún Laoghaire. These are important protections. The Bill does not remove all the protections, as has been suggested by Senator Craughwell, but I accept that it removes an important one, once the restrictions are lifted. However, there are still very important protections provided for in the residential tenancies legislation. The section 35 provision prevents notice being given, in cases of ten or more properties, for the purpose of substantial redevelopment at the landlord's convenience. When this occurred in St. Helen's Court the evictions were stopped by the legislation. However, the Derry-based developer who bought the apartments from PwC then served a notice on eight property owners, which is reprehensible. To my mind, it is a naked attempt to circumvent the protections in the legislation. That has happened and the legislation has failed in that instance to protect the tenants who are in these homes in St. Helen's Court. They are compliant tenants who are paying their rent. They are not guilty of anti-social behaviour or any other breach of their leases, yet they now find themselves at an extraordinarily difficult time looking for new homes in the coming months, which is a very difficult situation.

Let us acknowledge that the legislation does not do everything we would like it to do. I am sure the Minister of State, Deputy Peter Burke, feels the same because I do not think he would endorse what has happened in Dún Laoghaire either. The reality is that in all legislative processes we must balance the rights of different sectors of society. On Second Stage, I raised other issues that are not covered by this legislation. Amendments I tabled were ruled out of order because they are outside the scope of the Bill, but they relate, for example, to providing legal aid and legal advice to people who are before the tribunal of the Residential Tenancies Board. They provide, for example, for circumstances where we move the evidential burdens onto landlords rather than tenants. If they cannot be addressed in the Bill, I will accept that but the issues remain. I ask Members to step back for a moment and not to present these matters as if they are black and white or as if, on one side, we have somebody trying to undo the rights of people and, on the other side, we have somebody trying to save the rights of everyone. That is not the case. We live in a world of shades of grey. That is the reality. As another speaker said, I presume and expect that if need be, we will come back with more legislation when we reach the date set by means of the sunset clause. I invite the Minister of State to confirm that is the case.

Nobody is trying to do away with the protections that are important and necessary, but we must move with the times and recognise the realities of this situation and that there is no such thing as a Bill that does everything we want it to do. I agree that we must do what we can but in that regard all of these things are a matter of balancing the rights of two sets of individuals, neither of which is having a whale of a time during Covid. We must always seek to balance those rights. The Bill does a very good job of doing that. I presume the Minister of State would concede that it is not perfect because in previous debates he has been generous in acknowledging that the legislation does not do everything even he would like it to do. We all live in a world of compromise where we try to balance rights and achieve the best possible result for as many people as possible.

Some Members are indicating to speak again and everybody will be allowed to do so. At this point, I will ask the Minister of State, Deputy Peter Burke, to respond to the very valuable contributions made by Members.

I thank all the Members who spoke. I genuinely appreciate the valuable responses that have been made, as the Acting Chairman noted.

It is important that we have this debate. I acknowledge the frustration with the speed of the Bill's progression. We offered extensive oral and written briefings and carried them out with the joint committee. Common threads in the contributions that have been made are normality and certainty. It is very difficult to have full normal parliamentary mechanisms in a pandemic when we rely on the statutory Office of the Attorney General providing advice to us to protect the Constitution and we implement legislation on foot of this advice. Timelines can be constrained. It is very difficult, given that the Covid-19 virus has an uncertain trajectory, to predict the future.

Before I address the amendments, I want to point out there is a danger of conflating the emergency periods. People are misreading one key point. We have to be very clear that the 5 km rule is under different legislation, the Residential Tenancies Act 2020. The Bill has nothing to do with that. The Bill is about protecting those who have run into rental arrears through Covid. It offers protection under the Planning and Development, and Residential Tenancies, Act 2020. It is a different Act based solely on an economic impact. This is the key issue to get across. This is what we are doing with the Bill.

I cannot accept amendments Nos. 1, 2, 7 to 13, inclusive, or 15 to 18, inclusive, which seek to increase the proposed extension in the Bill of the emergency period under the Planning and Development, and Residential Tenancies, Act 2020 from three months by varying lengths to provide an extension of either six months or eight and a half months, ending on 13 October or 31 December 2021, respectively.

The amendments also propose consequential amendments to other dates within the Planning and Development, and Residential Tenancies, Act 2020, which correspond with the various expiry dates proposed by the Opposition for the emergency period under the Act.

Section 9(1) of the Planning and Development, and Residential Tenancies, Act 2020 defines an "emergency period" as from 11 January 2021 to 12 April 2021, during which the enhanced tenancy protections under that Act apply for tenants in arrears, subject to conditions and procedural requirements. Section 1 of this Bill, in paragraph (a), proposes to extend the expiry date of the emergency period from 12 April 2021 to 12 July 2021.

In line with the advice of the Office of the Attorney General, the Government seeks to limit as much as possible any interference with the constitutionally protected property rights of landlords. It is the hope of the Government that the situation for tenants will have improved by 12 July and that there will be no need for the enhanced tenancy protections contained in the Planning and Development, and Residential Tenancies, Act 2020, thereafter. Covid-19 has brought about much uncertainty. The Government's proposed three-month extension to the application of enhanced tenancy protections under the Planning and Development, and Residential Tenancies, Act 2020 aims to complement our wider efforts to suppress the spread of Covid-19 throughout the country. None of us could have foreseen the fatal trajectory of the Covid-19 virus.

Paragraphs (b) to (d) of section 1 update various dates from April 2021 to July 2021 to reflect the extended emergency period. The proposed amendments to the Planning and Development, and Residential Tenancies, Act 2020 in the Bill provide for the enhanced protections for tenants, subject to conditions and procedural requirements under that Act, to continue to apply from 13 April 2021 to 12 July 2021 if they have been economically impacted by the Covid-19 pandemic and consequently are unable to meet their obligations under the Residential Tenancies Acts to pay the rent due and are at risk of tenancy termination. During this time, relevant tenants will be safeguarded from eviction and rent increase.

Paragraph (b) of section 1 extends the eligibility expiry date from 12 April 2021 to 12 July 2021 for tenants to qualify as a relevant person within the meaning of section 10(6) of the Planning and Development, and Residential Tenancies, Act 2020.

If this Bill is passed, a "relevant person" means a tenant unable to comply with his or her obligations to pay rent due in respect of a tenancy because he or she is, or was at any stage, between 1 August 2020 to 12 July 2021: in receipt of, or entitled to receive, illness benefit for Covid-19 absence; or in receipt of, or entitled to receive, the temporary wage subsidy or any other social welfare payment or State support paid as a result of loss of earnings due to Covid-19. This includes the rent supplement or a supplementary welfare allowance. Paragraph (c) extends the eligibility expiry date from 12 April 2021 to 12 July 2021 for landlords to qualify as a "relevant person" within the meaning of section 11(6) of the Planning and Development, and Residential Tenancies, Act 2020.

Pursuant to this amendment, a "relevant person" means a landlord who is, or was at any stage, between 1 August 2020 and 12 July 2021: in receipt of, or entitled to receive, illness benefit for Covid-19 absence; or in receipt of, or entitled to receive, the temporary wage subsidy or any other social welfare payment or State support paid as a result of loss of earnings due to Covid-19.

Subparagraph (i) of paragraph (d) of section 1 of the Bill substitutes paragraph (a) of subsection (1) of section 12 of the Planning and Development, and Residential Tenancies, Act 2020 to: provide that the earliest termination date that can be specified for a tenant protected under that Act is 13 July 2021, extended from 13 April 2021; and makes a technical reference to a new subsection (1A) to be inserted into section 12 of the Planning and Development, and Residential Tenancies, Act 2020 by section 1 of the Bill. Subparagraph (ii) inserts a new subsection (1A) into section 12 of the Planning and Development, and Residential Tenancies, Act 2020.

The new subsection (1A) of section 12 applies, as per paragraph (c) of that subsection, to a notice of termination grounded on rent arrears and served on a tenant during the emergency period specifying a termination date that falls on or after 13 April 2021 and before 13 July 2021, that is, critically, it falls during the three-month extension provided under this Bill. Paragraph (a) of the new subsection (1A) of section 12 provides that, subject to paragraph (b) of that subsection, if the tenant is protected by the Planning and Development, and Residential Tenancies, Act 2020 and subsection (1A) applies in his or her case, the specified termination date shall be deemed to be 13 July 2021. This measure provides the benefit of the enhanced protections to relevant tenants until 13 July 2021. Paragraph (b) of the new subsection (1A) of section 12 provides that if the Planning and Development, and Residential Tenancies, Act 2020 protections cease to apply in relation to a relevant tenant, the protections under paragraph (a) shall also cease to apply ten days thereafter. This affords a grace period for tenants to find alternative accommodation.

Subparagraph (iii) of paragraph (d) of section 1 of this Bill provides a technical amendment to paragraph (a) of subsection (2) of section 12 of the Planning and Development, and Residential Tenancies, Act 2020 to update the deemed termination date from 13 April 2021 to 13 July 2021 in respect of a tenant who was served a notice of termination grounded on rent arrears prior to 11 January 2021, either specifying a termination date that falls between 11 January 2021 and 12 April 2021, or with a deemed termination date that falls between 11 January 2021 and 12 April 2021, by virtue of section 5(4) of the Residential Tenancies and Valuation Act 2020.

I thank the Minister of State for outlining the situation as it is. I want to acknowledge my colleagues who, like me, are supportive of the legislation he is putting through. I want to put on record that I am 100% supportive of what he is trying to do. However, I have two issues, and the first issue is as follows. There are eminent lawyers in the Chamber. Can somebody explain to me what is the difference between the Minister of State accepting the amendment to December 2021 and having to come back to the House between now and December, when everything, as we hope, has gone back to normal, to repeal the section, or, if things have not improved, having to come back in July to extend it? What is the difference? It provides certainty to the end of the year for tenants, as far as I am concerned.

I appreciate Senator Ward's input. I have known Senator Ward for a long time and I trust what he says.

He acknowledged that there is a section which causes a bit of a problem. Unless I am mistaken, the 5 km element may cause difficulties at some point. We do not know.

I am a layman but I have obtained legal opinions on both sides, one arguing that it does not apply and the other stating that it does. If I were a tenant, I would not be at all happy. I will not impede the passing of the Bill. I will not call any votes but I want to put on record the haste with which the Bill has come through the Seanad and my belief that what is happening demonstrates a lack of respect for this constitutional House. I still cannot understand why the Minister could not accept the provision for a December sunset clause. If everything is going as we hope in July, the Minister could still have come in here to say we did not need the clause any more and it could be cancelled. I would appreciate the Minister of State trying to explain that to me.

I want to highlight the prohibition of rent increases is important and the fact that people cannot increase rent at this time. We are coming into the summer and where I live, there are individuals who see dollar signs and think about hoisting people out of houses in May for June, July and August in order to charge ridiculous rents. We see it happening all over north Clare and it has led to a major lack of housing availability. It is really important to emphasise that this applies to tenants who have been affected by Covid-19. We are hoping Covid-19 will not be an issue in December. Senator Craughwell knows as well as I do the slating the Minister would get if he rowed back on a promise. That is a very plain reason to include the clause for July and to extend it if required. If the Minister stated that he made a mistake and had to row back on the December provision, we know it would go down like a lead balloon.

It is important nonetheless that we are doing this for tenants, and it is great we had the wherewithal at the beginning to extend these provisions. That made a significant difference to people. We have much work still to do in respect of tenancies, tenancy agreements, evictions and notice periods of one month or even four months when work is to be done on a house and somebody is going to pay double the current rent. There is much yet to be covered but I support the Bill.

To respond to the points just made, some people, albeit not in this House, have suggested that the Government should ignore the Attorney General and allow this to be tested in the courts. The Government must ensure that any legislation which passes is proportionate, legal, constitutional and not open to challenge. The Attorney General has been quite clear in his advice to the Government that this legislation is okay in the context of Covid-19 but because we do not know what the position will be after July, the Bill's provisions can only apply for a limited period. As I have stated, the Minister and Minister of State have indicated that if we are, unfortunately, in circumstances where Covid-19 is still with us at that point, they will not hesitate to come back before both Houses of the Oireachtas in order to extend the provisions of the legislation.

I thank the Acting Chairman for the latitude. Before concluding, I appeal, as I did last Friday, for the Opposition not to make a political football out of this as some people have done outside the Chamber. They have posted screenshots of votes of the Oireachtas to support an argument that in some way the Government is against tenant rights and this legislation is removing protections for tenants. This legislation is enhancing protection for a further three months. That is a fact and anything stated to the contrary is inaccurate. It is very important to put that on the record. This is about extending protections for a further three months for a cohort of people who have been the most negatively affected from a financial point of view by Covid-19. It is right and proper action and I commend the Government on it.

Just because the Senator keeps saying it does not make it true. It is not only us who are saying this. Threshold and the Simon Communities of Ireland have said that section 2 of the Bill is punitive, unnecessary and will lead to the loss of accommodation and to homelessness. Sin é. I appeal to the Chair. We should discuss and focus on the amendments before us in line with Standing Orders. I will not labour the point because we only have an hour and a half for this Bill, but I will press for a vote on amendment No. 1.

This legislation interrupts constitutional property rights. The proportionality of that is determined by Covid and whether Covid lifts or the Covid situation gets better. I hope with all my heart that we will be in a much better position by 12 July. It is right that we take it in those steps. Otherwise, it becomes disproportionate and unconstitutional. That is the reason. I have no problem extending this if the circumstances arise but if they do not, they do not. That would be great. Then we can have a debate for another day on a different set of rights. However, we should be clear that the rights as they stood prior to Covid still stand. None of those has been diminished.

I had not intended to intervene on this because the perspective on the amendments has been clearly outlined. We have heard many speeches on matters that are not the amendment at all. It is important to clarify what this Bill does. As Senator Warfield said about section 2, it is not just members of the Opposition who are saying it but also the NGOs involved in this area such as Threshold and the Simon Communities of Ireland. They have said there are people who will be financially impacted and could potentially lose their homes as a result of this. They are not covered. Only 700-plus people are covered. They have registered their tenancies and registered as being in arrears. They have said from their experience that it is excessively cumbersome.

I wish to clarify the 5 km limit. All the indications are that the Government will change the 5 km limit tomorrow. We tied, in legislation, the extension of eviction protections to renters to the 5 km limit. If that limit is lifted, we will still be in a Covid situation and we will still have the balance of rights. Unfortunately, however, because we tied it to the 5 km, we will probably still have level 5 with a couple of small restrictions lifted. When this happened last August, 360 people got notices of eviction. We must say that clearly when we are talking and not speaking to the amendment. Members say this is enhancing the rights of tenants, but when we have over 600 cases of Covid a day and we have not had a full roll-out of the vaccine there are hundreds of families who will potentially be evicted. It is important to put that on the record. As Senator Warfield said, just because Members keep saying it does not necessarily make it true. I do not want to end up with a situation in which that is going to happen but it is likely to end up happening, and it is not just the Opposition that is saying it.

I acknowledge the genuine and well-meaning nature of the contributions. In response to Senator Craughwell, this is strictly on the advice of the Attorney General. He is the constitutional officer from whom the Government must take its advice. He is trying to balance the property rights in the Constitution with the rights of very vulnerable people who are renting and have experienced a loss in their income as a direct result of Covid-19. The State supports have been ramped up to meet that. I believe over €11 billion has been paid out in supports. I also acknowledge the great work of community welfare offices in dealing with applications for supplementary welfare allowance in less than three days.

Considerable work is being done on the ground by various State actors and all of those supports are available.

I genuinely appreciate the frustration with the short timeframe in the Bill. I have the utmost respect for the Seanad. It is unfortunate that, given the emergency we are in, Bills are coming at pace. The period specified is strictly the result of the advice of the Attorney General. I am hopeful we will be in a different place come July. We are all hopeful of that.

On the rights of tenants being tied to the 5 km travel limit, the latter is covered by a different Act. If the 5 km travel limit is lifted tomorrow, it will have nothing to do with this Bill. It is a health regulation attached to the Residential Tenancies Act 2020. That is where the 5 km travel limit eviction ban derives its authority. This Bill is about protecting those who are in rent arrears due to Covid-19 and income loss and that is what Threshold asked for. Members have mentioned Threshold numerous times. When Threshold was asked what the main issue for renters was in a pandemic, it indicated clearly that its main concern was rent arrears. That is why we moved quickly and took a proportionate response in this Bill to stand by renters.

Is the amendment being pressed?

Amendment put:
The Committee divided: Tá, 13; Níl, 29.

  • Bacik, Ivana.
  • Black, Frances.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Keogan, Sharon.
  • Moynihan, Rebecca.
  • Mullen, Rónán.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.


  • Ahearn, Garret.
  • Blaney, Niall.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Kyne, Seán.
  • Lombard, Tim.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Fintan Warfield and Rebecca Moynihan; Níl, Senators Robbie Gallagher and Seán Kyne.
Amendment declared lost.

If Senators want to have conversations, they can have them outside the Chamber. I welcome the Minister of State back to the House.

I move amendment No. 2:

In page 4, line 5, to delete “12 July 2021” and substitute “13 October 2021”.

Amendment put and declared lost.

Amendments Nos. 3 to 6, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 3:

In page 4, between lines 6 and 7, to insert the following:

“(b) in section 10, by—

(i) the substitution of the following subsection for subsection (1):

“(1) This Part applies in relation to a tenant in relation to the tenancy of a dwelling where—

(a) he or she is a relevant person, and

(b) as a consequence thereof, there is a significant risk that the tenancy of the dwelling will be terminated by the landlord,

and references in this Part to tenant or tenancy of a dwelling shall be construed accordingly.”,

(ii) the deletion of subsection (2), and

(iii) the deletion of subsection (5),”.

I will speak to this set of amendments and to the section. I realise we are about to run out of time again, which is something that is avoidable, even if it be another hour added to the day. For those who spoke about officials advising them about the urgency, of course it is urgent but that is no reason this legislation could not have been developed and put on the Order Paper in February. The Government sometimes acts as if it does not have control on time. It does have control on time and the Minister of State also has control. He could have chosen to address the 5 km and 20 km issue in this legislation. There are amendments that show he could have addressed it in this area, amendments which were ruled in order. We need to be very clear. Let us not have a washing of the hands. Government does have control on how it uses time, certainly more than we in the Opposition benches do.

I want to acknowledge one positive thing in this Bill, which is the 90-day notice period during the emergency. I acknowledge this is an issue I have raised repeatedly as a matter of great concern. I am glad that is addressed and I want to give credit where credit is due. It is a small but significant potential comfort that gives a period of time in which people may be able to address arrears. I acknowledge that. I know there are those within Government parties who pressed for that issue and who took in good faith the arguments I put forward in that regard. I wish there had also been a taking in good faith of the question on the definition of "emergency period", which was put forward by Senator Moynihan, and the extension from 5 km to 20 km, which is a proposal I made in the autumn. I was disappointed then and I am, frankly, perplexed we are not using this opportunity to deliver it.

Amendments Nos. 3 to 6, inclusive, relate to the core reason things are not working, which is the declaration. We need to be very clear on this. The Minister of State spoke about all of those who had lost out through Covid payments, all of those on illness payments, and all of the people who would be covered and who are still going to be protected, but there is a caveat in their protection. They are not automatically protected. They are only protected if they go through a process, which we in this House rightly described as elaborate, off-putting and chilling, to declare themselves to be a relevant person. We have seen very clearly that exactly what we warned about has happened. People have not declared themselves as relevant persons. Look at the chilling effect. Since July of last year, only 700 people have applied to be considered as a relevant person. That figure is in spite the fact that, as of last week, 449,500 individuals were in receipt of the pandemic unemployment payment, PUP. There is a huge gap between those who are potentially eligible for this protection and those who actually have this protection. The reality is that when the 5 km limit is removed, a large number of people will not be declared as relevant people and will not access the protection they need. This was entirely avoidable.

Amendments Nos. 3 to 6, inclusive, give the Minister of State the opportunity to address the problems we knew at the time would happen. If he accepts amendment No. 3, the speech he gave earlier will, in fact, be correct in a way it was not, unfortunately. He spoke about those who have protection and those who have an entitlement, but he left out the piece about the declaration and that is the issue here. My amendment No. 3 would mean the protections which will stand under this legislation during the emergency period would apply:

... in relation to the tenancy of a dwelling where—

(a) he or she is a relevant person, and

(b) as a consequence thereof, there is a significant risk that the tenancy of the dwelling will be terminated by the landlord ...

I am not adding new people to the qualifying list. I am trying to address problems in the process. The same language required to be put into the declaration but without the chilling effect currently there whereby people were told they would be committing an offence if the declaration was false or misleading in any sense. We warned that would have a chilling effect. People are nervous. They do not know their rights in that area. We said it should be made a requirement and we should seek to capture all those who qualify rather than requiring them to jump through hoops. It is very clear, given the tiny proportion of people who have declared themselves, that they have not fully activated.

I am concerned about the declaration. I am concerned about the false and misleading part. We will not get to my amendment No. 31, which addressed the standard in respect of "false and misleading". I am aware there have been some caveats to "false and misleading" and clarification on that but it is still has a chill effect. We put the standard on tenants in terms of declaring themselves to be a relevant person for protection but we do not put the same demand on landlords. My amendment No. 31, which we will not get to, raised the question of a landlord having false or misleading information in his or her notice of termination. Will he or she be committing an offence also? I recognise there is a variety of landlords but, generally, they will have more access to legal advice than many tenants. Will we hold them to the same standards?

We should bear in mind that of the hundreds of notices served as soon as the opportunity presented itself in August, 80 complaints were made to the Residential Tenancies Board in terms of illegal eviction notices. This points to another problem in section 2, which others have highlighted. The language of section 2 indicates that people will not be protected if arrears are cited in the notice. What if a landlord cites arrears as an issue but they prove not to be? Where does that leave us? We are using loose language in respect of the notices of termination of the landlords. I am aware we have a whole architecture in terms of the Residential Tenancies Board, thank goodness. However, I am concerned about this delicate situation in which many people will face insecurity that we do not give the same benefit of the doubt to tenants that we give to landlords.

My amendment would be very clear. Amendments Nos. 3 to 5, inclusive, all relate to the same issue and state that either a declaration is not be required, or, if a declaration is required, it would have to be put in good faith.

I ask the Minister of State whether somebody can apply to be a relevant person after the period of time. Can somebody apply after receiving a notice of termination? If somebody's application to be a relevant person is still in consideration, will the Minister of State ensure that the notice of termination would not proceed? Is it the case that a notice of termination might continue in respect of somebody who is eligible and has applied but is awaiting a determination?

I give credit where there is positive engagement and I recognise the 90-day extension which applies in respect of the emergency period. I tried to apply that in a wider sense. As others said, it is an attempt to capture the many people who will not fit under the cover in terms of the relevant person but will, nonetheless, have been indirectly affected by Covid-19.

My amendment No. 6 looks to makes it clear that somebody can request an extension of the period for repayment where there is evidence that he or she is engaging with the tenancy protection services or the Money Advice & Budgeting Services, where there is a pending application for enhanced rent supplement payment, where there is a pending decision on an application for a housing assistance payment or where there is engagement in any process under the remit of the Residential Tenancies Board. Again, Minister-----

As it is now 6.30 p.m., I am required to put the question in accordance with the order of the Seanad today, so I have to interrupt the Senator.

It is a pity I am not in a position to report progress. I hope that next time we have this debate we will be able to report some progress in terms of how we approach these issues.

I thank the Senator.

As it is now 6.30 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 3 is hereby negatived in Committee, that section 1 is hereby agreed to in Committee, in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Preamble and the Title are hereby agreed to in Committee, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed, the Bill is hereby received for final consideration and the Bill is hereby passed."

Question put and declared carried.