|What can happen if tenancies aren’t registered with the the Residential Tenancies Board? In this week’s Sunday read, we revisit an archive story of tenants who don’t know who their landlords are and so struggle to enforce their rights — and the poor enforcement of the requirement to register.|
|13 October 2021 Tenants Find They Can’t Take Their Landlords to the RTB Because They Can’t Find Them|
|The offices of the Residential Tenancies Board. Photo by Lois Kapila.|
|Elizabeth Wilson says she wants to challenge how she had to move out from her home for a sale that never happened, and bring a case to the Residential Tenancies Board (RTB), the body that rules on disputes like these.|
But she’s blocked, she says, because the man who owned the house when she lived there has died, and the board can’t work out who the current owner of the house is.
“The whole RTB process was very frustrating,” she says.
Wilson and her family agreed to leave their four-bedroom rented house in the heart of Clontarf in May 2018 after an agent told them that the landlord was selling up, she says. But he didn’t sell, and the house has since been rented to new tenants.
Wilson can’t take the estate agent to the RTB over what happened. “Our remit does not extend to issues arising between tenants and letting agents”, says a spokesperson for the board.
Someone’s renting the house, though, “So the money must be going to someone”, says Wilson. That someone should come before the RTB, she says. But who are they?
For a determination order by the RTB to be enforceable the landlord must be aware of the case, the RTB spokesperson says. So they must be found.
Nobody knows how many cases are stymied by the fact that neither the tenant nor the RTB can find a landlord. The RTB doesn’t compile data on that, said a response to a request under the Freedom of Information Act.
But it’s something that housing activists and tenants have flagged as hindering attempts to challenge all kinds of issues, like having to leave in Wilson’s case, or say, when tenants haven’t gotten a deposit back, or have struggled to get maintenance done.
Housing activist Patrick Nelis, who represents tenants at the RTB, says the problem is quite common, worsened by poor enforcement of the requirement to register tenancies with the RTB, and gaps in powers to compel estate agents to name their clients.
Who is Responsible?
Wilson and her family moved out of their rented home at Blackheath Park in Clontarf in May 2018.
In April, an estate agent with BFR Estates, Fitz Reardon, told Wilson that the owner needed to sell the house because the bank was foreclosing, say both Reardon and Wilson.
Wilson had a daughter facing exams in May and another tackling the Leaving Cert in June. “We thought we better get out of here,” she says.
The €2,100 a month in rent that the family was paying was already at the top of what they could afford, said Wilson, who is a part-time music teacher and whose husband is a church minister.
But there were only four houses up for rent in the area, she says, so they ended up taking on a house for €2,500 per month.
“After clearing out our savings to pay for a security deposit and first month’s rent we couldn’t afford to hire a mover,” she says. “I thank God I knew a man with a van and a kind heart, but he couldn’t fit everything.”
They had to leave some furniture behind. Two of their daughters have serious long-term illnesses, she says. “I honestly don’t know how we survived those few months.”
By June, a small for-sale sign had been put up at the end of the drive. But the owner didn’t sell the house, shows the residential property price register.
In November 2018 neighbours told Wilson that it had been rented out again, this time to a group of adults, she says.
In May 2019, a year after she moved out, she filed a dispute with the RTB, show emails. She wants compensation for the extra rent she had to pay in the year after she left and says she is owed some of her deposit back too.
In the interim, her landlord, Kevin Duffy, had passed away, she says. Since then, she has been unable to bring a dispute.
The estate agent BFR Estates is representing the family though, it seems.
“We have spoken to the agent and although they are representing the Duffy family at this time they are not legally responsible for the dwelling,” a staff member from the RTB wrote to Wilson in October 2020.
Then in November 2020 the RTB wrote to Wilson and said they were closing the case because they couldn’t work out who the new owner is.
“The family of the deceased Mr. Duffy have not finalised any papers or grant of probate and according to them they are unsure of who is legally responsible for this property,” says the letter.
Reardon, the agent with BFR Estates, said by phone on 11 October that the bank was going to repossess the property but then it “eased off”.
Wilson and her family were given plenty of time to find somewhere new, he says. There’s no point in offering them the house back, as it’s in danger of being repossessed, he said.
Lax enforcement of a rule that all tenancies must be registered is part of the problem, says Nelis, the housing activist.
Under the Residential Tenancies Act, a landlord must file their own details with the RTB, including their home address and keep those details up to date, said a spokesperson for the RTB.
A landlord is also obliged to provide their own contact details or that of their authorised agent to the tenant when they rent out a home, said the spokesperson.
As of 12 October, there weren’t any tenancies listed at the home at Blackheath Park on the RTB’s tenancies register.
The current tenants are only there on a month-by-month basis, “so it’s not a tenancy as such”, said Reardon, the agent. “The bank could walk in any day there and change the locks.”
Lots of landlords fail to register tenancies but he has never heard of a landlord being fined for that, Nelis says.
The RTB’s annual report for 2020 doesn’t give details of fines for failing to register a tenancy. But it does give details of the letters it has sent.
In 2018, the year that Wilson moved out of her rental home, the RTB sent more than 4,650 first-round enforcement notices to landlords, the first step it takes to ask landlords to comply with their obligation to register a tenancy.
The RTB’s process is to then send a reminder letter, and then solicitors’ letters and if the matter is not resolved to pursue it through the courts.
In 2020, the number of first-round enforcement notices fell to just over 1,280, as the RTB stopped issuing them for some time that year and staff didn’t have access to the office because of Covid restrictions, says its annual report.
Members of the public referred 1,010 alleged unregistered tenancies to the RTB in 2020, a decrease of roughly 20 percent from the year before, according to its annual report for that year. The report doesn’t say the outcome of those cases.
If the RTB can’t get the landlord’s contact details from its own tenancy register, it uses other systems, including previous dispute cases and correspondence, “as well as any shared databases with other government bodies”, said the spokesperson.
But sometimes that isn’t enough, it seems.
Compelling a Proxy
In February 202o, Leanne Egan and her partner moved into a rented house in Clonsilla, paying €1,800 a month, she says.
The person in charge of the house was Alice Lynch, she says, but the landlord was someone else. Egan paid the rent into the landlord’s account and Lynch was supposed to manage issues, she says.
Lynch’s husband, Bernard Lynch, was in the process of painting the house when they moved in, she says.
Within weeks of moving in, black mould began to appear in the ensuite bathroom, she says, which had the only working shower.
The house was drafty, she says, and the window at the top of the stairs was broken and she had a newborn baby sleeping in the room next door. “It was just vile.”
Her first priority was the window, she says. She had a mobile number for Alice Lynch, who she rang and texted repeatedly for weeks but got no answer, she says. (WhatsApp messages show that she reported maintenance issues in September 2020 and got no response.)
Eventually, Lynch’s husband called around and said she wasn’t well, says Egan. So Egan asked him for his number, or for a mobile number for the landlord but he refused to give her either of them, she says.
In messages sent in August 2021 to end the tenancy, she says that she had repeatedly asked for the landlord’s number, but never received it.
The tenancy was not registered with the RTB, says Egan. (She has now reported that, she says.)
When the washing machine broke they couldn’t contact anyone so they had to fix it themselves, she says.
“It got to the point where we weren’t sure if the landlord existed,” she says. Until the day before she moved out of the house, when a man who said he was the landlord showed up, she says.
Bernard Lynch said on Monday that they were not managing the house.
“We know the owner because years ago we lived next door but that is all,” he says. The owner lives in the UK, he said.
Even if the Lynches had been managing the house, though, the RTB cannot compel agents to hand over the details of a landlord, a spokesperson for the RTB said.
And while estate agents can act for landlords in RTB hearings, the board can’t enforce decisions if the landlord isn’t on notice, said the spokesperson.
The Property Services Regulatory Authority (PSRA) has the power to investigate complaints against property service providers, the RTB spokesperson said, and can issue fines up to €250,000 for “improper conduct”.
But a spokesperson for the PSRA says it can’t compel agents to hand over details of landlords either.
“Under the Property Services (Regulation) Act 2011, the PSRA does not have the authority to require a PSP [property service provider] to provide a third party with information, including landlord contact information,” the spokesperson said.
Nelis, the housing activist, says that the legislation should be updated to reflect the reality that most tenancies are through estate agents and lots of people don’t know their landlord.
He’s had several cases recently, he says, where tenants brought a dispute to get their deposits back but the estate agent refused to give the RTB the landlord’s details.
That’s unfair, he says, as from the tenant’s point of view, they trusted the estate agent with the deposit.
“If a tenant pays an estate agent for a deposit, then the estate agent should pay that deposit back,” says Nelis.
Also, the RTB could find out who is paying the property tax from the Revenue Commissioners, says Nelis. “Where does the receipt go to?”
Mitch Hamilton, communications officer with Community Action Tenants Union (CATU), says it is easy to look up who owns a business and it should be just as easy to look up a landlord: “We believe there should be a centralised database.”