It has been a long five years for Seán Mitchell. Since he received his first eviction notice for his rented apartment in St Helen’s Court in Dún Laoghaire in 2018, life feels like a constant battle.
He, and many other tenants, attended the Residential Tenancies Board (RTB) on four occasions. At the first hearing, the notice of termination he was served was deemed to be invalid.
The second hearing occurred after the 20 residents were all served notices. The landlord later withdrew the notices, realising the residents would come under the Tyrrelstown Amendment, which prohibits the eviction of 10 or more tenants in one complex.
“They [the landlord] came back and gave six of us notices then, leaving five of us in place so the amendment wouldn’t apply. And then later down the line they’d be able to evict the rest. The RTB didn’t do much for us. They should’ve known what was going to happen,” the 60-year-old taxi driver said.
Following this, the RTB issued a determination order backing their vacation as sought by the owners, Donegal-based Mill Street in 2021.
“The RTB just said that this is the law and there is nothing we can do. They [the landlord] did everything properly, found loopholes in the legislation. There was nothing the RTB could do.”
The RTB is a quasi-judicial public body set up under the Residential Tenancies Act 2004, to support and develop a well-functioning rental sector.
Under law, tenants and landlords can bring disputes to the RTB. First, they can opt for mediation or adjudication, which is a formal process in which an appointed adjudicator makes a decision, based on evidence presented by both parties, on the issue of dispute.
If they are unhappy with the determination of an adjudication hearing, it can then be appealed to a tribunal. The determination of the tribunal is binding, and can be appealed only on a point of law via the High Court.
When a determination order is issued by the tribunal, it can be enforced if a party involved in the case makes an application to the district court to make the RTB decision a court order.
One of the aims of the Act under which the RTB was established is for disputes between landlords and tenants to be resolved “cheaply and speedily”.
However, an internal audit, obtained by The Irish Times under Freedom of Information laws, highlighted a number of medium priority risks when it comes to the handling of adjudication and tribunals.
According to the audit, for which the period under review was September 1st, 2020 until September 30th, 2021, cases were not dealt “with as speedily as possible and/or in a timely manner”.
The audit also said tasks were missed during the appeals handling and tribunal processes as “individuals involved do not have their roles and responsibilities clearly defined”.
“Reporting figures reported to the board are inaccurate and reflect inaccurate states of cases,” the audit added.
A spokesman for the RTB said its dispute resolution service was “a vital service” and the RTB had “many of the powers that the courts have” but the way in which disputes were resolved was “less formal than a court”.
“The dispute resolution procedures are also intended to be more accessible and faster than those of the courts. Together, this means that resolving a dispute through the RTB is simpler, less costly and less time consuming than it would be if landlords and tenants had to bring their disputes through the courts.”
The spokesman said resolving disputes “ultimately helps increase compliance with rental rights and responsibilities and, where possible, keeps tenancies on track”.
Processing times for dispute resolution can vary, but has generally increased in recent years.
The average processing time for telephone mediation cases increased slightly from 9.1 weeks in 2020 to about 9.7 weeks in 2021. The average processing time for adjudication cases in 2021 was 19.5 weeks which is close to the time of 19.6 weeks in 2020.
Meanwhile, the average processing time for tribunal cases decreased from 39.4 weeks in 2020 to 33.4 weeks in 2021. That was a significant rise on the 10-week processing time in 2019, and 14 weeks in 2018. The figures for 2022 are awaited.
A spokesman for the RTB said cases relating to rent arrears and illegal evictions were prioritised. “Both issues can put the tenancy at risk and can have a big impact on the affected party, and so the RTB prioritises these applications.”
Demand for the service fluctuates year on year, but stood at 7,343 applications for dispute resolution last year, up on pre-pandemic figures when 6,185 applications were received in 2019. Applications reduced significantly during the lockdown periods of the Covid-19 crisis.
According to the board’s own statistics, deposit retention is one of the biggest reasons behind tenants’ decision to complain to the RTB, accounting for about 20 per cent of dispute resolution applications annually.
Individuals working in and representing the sector have consistently called for a deposit protection scheme, stating that in most cases, even when the RTB determines a tenant is entitled to their deposit back, they do not receive it.
This, legal professionals have said, would free up the RTB to deal with disputes centering on other complaints, reducing demand for the service, and, consequently, the waiting and processing times.
Under this proposed scheme, tenants would be enabled to lodge their deposit with an independent third party, such as the RTB, thus ensuring the prompt return of deposit at the end of a tenancy.
A feasibility study was conducted on a tenancy deposit protection scheme in 2012 by Indecon International Economic Consultants, which said there were “significant financial risks” in any scheme, adding it would be “essential to ensure these risks are borne by any provider and not by the exchequer”.
A spokesman for the Department of Housing said its Housing for All plan commits to an examination of the creation of a system of holding rental deposits, informed by international experience. This examination had a timeline of the second quarter of 2023, the spokesman said.
Similarly, Mary Conway, chairwoman of the Irish Property Owners’ Association (IPOA), said when rent arrears accrued and the RTB determined the tenant must pay back these arrears to the landlord, in 99 per cent of cases, that money was not received.
“If they don’t have the money, they don’t have the money. It’s almost always written off as a loss,” she said. “The biggest problem, though, is getting anything sorted out. It takes weeks to get a response to an email. Everything is so complex and takes so long.”
For many people who have attended the RTB in the past, that perceived complexity makes the experience very daunting.
James O’Toole, a resident of Tathony House apartment complex, who, along with every other resident in the block, was served an eviction notice as the landlord intends to sell the property, said the process of going to the RTB was “very stressful”.
“Even going into the RTB, the adjudicators, the lawyer for your landlord, these are all very professional people who are used to arguing these things day in and day out,” he said.
Legal professionals specialised in tenancy law said a lot of the time, landlords, particularly those who owned more than one property, had legal representation, while the tenants did not.
Rose Wall, chief executive of Community Law and Mediation, an independent community law centre and charity, said there was an opportunity with the current review of the civil legal aid scheme to address this barrier.
Gary Daly, a solicitor who does not normally represent parties at the RTB, but who often deals with cases post-RTB determination order, said one issue was the lens through which the RTB views its role.
“I recently represented a family facing eviction who lived in their family home for the last 60 years. An RTB determination order was issued and was being enforced in the district court,” he said.
“In the view of the RTB, once the notice of termination is drafted and served in compliance with the rules, as set out in the 2004 Act, they are satisfied that the order is lawful. In their own view, the RTB has no scope for ruling on arguments of fairness, or matters beyond the narrow interpretation of the Act, such as my client’s having lived in the property all their lives.”
A spokesman for the RTB said it had a number of measures it had introduced to address the issues highlighted in the audit, as well as by those availing of its dispute resolution service.
The board will also review how it reports on processing and waiting times to provide “an improved analysis of how long a dispute takes” and has established a “closer relationship” with the Money Advice and Budgeting Service (MABS) to help support tenants in rent arrears and those landlords who had tenants with rent arrears.
For Mr Mitchell, however, these steps don’t help him as he faces homelessness. He is overholding on the property, while discussions and legal proceedings continue. The landlord, Mill Street Projects, did not respond to a request for comment.
While the prospect of having to find someplace else to move was frightening in itself, the biggest stress had been the back and forth for half a decade, he said.
“It’s been such a long time since this all started. You’re spending all that time waiting for another letter to come in the door. It’s constant stress. I’m just going to have to stay until I’m kicked out, I don’t know what else to do.”