Have Irish tenancies become indefinite for all practical purposes with RTA amendments

GGTrek · 27-12-2016 11:30am #1

[font=Times New Roman","serif]I shall present my legal arguments based on a discussion with a forum member here, case law and statute and at the bottom I shall present my questions on the matter.

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[font=Times New Roman","serif]My objective is to prove that on the 24^th of December 2016 with the repeal of section 42 of the RTA 2004 introduced by PART 3 of the Planning and Development (Housing) and Residential Tenancies Bill 2016[/font]
[font=Times New Roman","serif]http://www.oireachtas.ie/documents/bills28/bills/2016/9216/B92d16S.pdf[/font]
[font=Times New Roman","serif]tenancy agreements beyond 6 months (so called part 4 tenancies) have become for all practical effects indefinite leases[/font][font=Times New Roman","serif].
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[font=Times New Roman","serif]My argument starts with this very badly drafted (in my opinion) judgment of the High Court:[/font]
[font=Times New Roman","serif]http://www.courts.ie/Judgments.nsf/0/7F4D66320A5B7A3880257F5C00349E68[/font]
[font=Times New Roman","serif]Where judge Barret states “Thus the court’s answer to the question posed in the opening sentence of this judgment is that a notice of termination served on a ‘Part 4 tenant’ under s.34(b) of the Act of 2004 must state a reason for that termination.” It is badly drafted (or lazily drafted) because judge Barret should have known that no reasons are specified in the act for a section 34(b) notice and with this statement he just created a interpretative void about which reasons are valid for a section 34(b). After making this statement he should have at least indicated which were in his opinion allowable reasons in statute or in case law to terminate a tenancy based on section 34(b), (sorry for the digression)
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[font=Times New Roman","serif]An even worse decision was followed by the subsequent RTB tribunal (as usual) pro-tenant interpretation and application of the High Court judgement: RTB Tribunal Reference No: TR1114-000936 / Case Ref No: 0714-13260:
"In our view, the Notice of Termination served in June, 2014 remains invalid for noncompliance with section 62(1)(e) of the 2004 Act despite the fact that a reason is discernible from an accompanying letter. The Tribunal is not satisfied to exercise a power under section 64A to determine that the failure to state a reason does not render the notice invalid in this case because to do so would have the effect of altering the circumstances in which a tenancy might lawfully be terminated during the currency of a dispute in a manner which interferes with vested rights and interests. The slip or omission arising from the failure to state a reason cannot in those circumstances, in our view, properly be considered as not prejudicing in a material respect the Notice of Termination within the meaning of section 64A."

The usual bias of the Tribunal in favour of tenants made them trample over the fact that a reason was put on a different piece of paper (merely a formal error or omission which should have been covered by section 64A) and forming another nefarious interpretation that nullified section 64A purpose for all practical effects while the High Court left them freedom to interpret the section: “Should the Tenancy Tribunal so convened consider it proper to invoke s.64A of the Act of 2004 it may or may not wish to note this Court’s view that (a) the omission of the reason for the termination from the notice of termination of 18th June, 2014, has not resulted in any prejudice of the type described in s.64A(a) of the Act of 2004”. Unfortunately the landlord did not appeal to High Court on this biased interpretation of the law, so it was left to stand.
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[font=Times New Roman","serif]There was still a way for a landlord to terminate a further Part 4 tenancies with no cause in the first 6 months by using section 42 of the RTA 2004 until the (not so) brilliant Irish government rushed through the Oireachtas another badly drafted piece of legislation (when you rush complex legislation within less than 10 days errors, omissions and unintended consequences are bound to happen) the Planning and Development (Housing) and Residential Tenancies Bill 2016 section 41 that repeals section 42 of the RTA 2004:[/font]
[font=Times New Roman","serif]Repeal of section 42 (termination of additional rights) of Act of 2004, transitional provisions and consequential amendments[/font]
[font=Times New Roman","serif]41. (1) Section 42 of the Act of 2004 is repealed.
[/font]
[font=Times New Roman","serif]So after 24^th of December 2016, the only way for a landlord to terminate a part 4 tenancy at what should be the natural expiry of 4 years (or 6 years depending on the changes applied to section 28 by the new amendments) is to use Section 34(b) of the RTA 2004 that states:
—A Part 4 tenancy may be terminated by the landlord—
(b) irrespective of whether any of those grounds exist, if—
(i) a notice of termination giving the required period of notice is served by the landlord in respect of the tenancy, and
(ii) that period of notice expires on or after the end of the period of 4 years mentioned in section 28 (2)(a) in relation to the tenancy.

The section above changes to 6 years for new tenancies starting on or after the 24th of December 2014, but for current tenancies it stays as 4 years. For further part tenancies that start on or after the 24th of December 2016 the term of 6 years will apply.

However the important section after the repeal of section 42 that makes tenancies beyond six months indefinite is Section 62(1)(e):
62.—(1) A notice of termination to be valid shall—
(e) if the duration of the tenancy is a period of more than 6 months, state (where the termination is by the landlord) the reason for the termination,

The High Court judgment linked above confirmed section 62(1)(e) validity. In the case of a termination for any cause except section 34(b) the reason for termination are (almost) clearly stated in the statute, however for section 34(b) terminations the badly drafted RTA 2004 states that section 34(a) reasons do not need to apply but section 62(1)(e) says that in any case (unless the tenancy has less than 6 months) a reason has to be provided. The RTB confirms this in the following new document published after the approval of the RTA 2016:[/font]
[font=Times New Roman","serif]http://www.rtb.ie/search-results/news/article/2016/12/23/rental-predictability-measures-introduced

"Security of Tenure
Security for both landlords and tenants is essential if the rental sector is to be both an attractive option for tenants and a safe and viable investment choice for investors. The rental strategy aims to move towards a situation where longer term tenancies are the norm. The legislation extends tenancies from 4 years to 6 year tenancies. This will apply to all new tenancies that come into operation after today which includes a further Part 4 tenancy that come into existence after today. Landlords currently can terminate within the first six months of a tenancy without giving a reason. Once a Part 4 tenancy comes into existence it can only be terminated by using one of the grounds listed below.
If a landlord wishes to stop a Further Part 4 tenancy coming into existence they may serve a notice during the Part 4 tenancy with the notice period given to the tenant expiring on or after the end of the tenancy. A notice served in this way should provide a reason for termination but the reason does not need to be one of the grounds set out below. To ensure the notice is valid it is best practice for the notice period given to end during the first six months of the Further Part 4 tenancy.”

The badly drafted legislation, the badly drafted judgment of the High Court and the biased judgement of the RTB tribunal have left a big mess if a landlord wishes to terminate a tenancy at what should be the natural termination of a tenancy (if one looks superficially at the statute especially section 28 combine with section 34(b)): there is absolutely nothing in any High Court judgment, nothing in any RTB Tribunal determination, nothing in the Irish statutes about which reasons beyond the ones required by section 34(a) (or other reasons for termination in the RTA 2004 and amendments) are allowed to terminate a tenancy according to section 34(b).

I have been thinking that maybe case law applying to standard contract law can be used to determine which reasons could be allowable, for example breach of contractual terms that cause discharge of contractual obligations.

The main point to take home from the argument above is: after the repeal of section 42 the landlord is now left to the merciful/subjective/biased interpretation of the RTB tribunals and ultimately the High Court about which reasons could be allowed to terminate a tenancy at 4/6 years according to section 34(b), since there is no clear case law and nothing in the statute about which reasons are allowable. That is why in my opinion all part 4 tenancies have now become indefinite for all practical purposes unless section 34(a) causes or other causes of termination clearly stated in the RTA 2004 can be stated and proved (for example breach of the peace, anti-social behaviour, …)

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[font=Times New Roman","serif]So my questions to forum posters here:[/font]

[font=Times New Roman","serif]Do you agree with my argument above? If not, please provide an argument on why you do not agree.[/font]
[font=Times New Roman","serif]In your opinion what kind of reasons would be acceptable to terminate based on section 34(b)? For example late payments of rent (but not beyond the 14 days delay) or breach of tenant obligations that were later corrected or any type of breach of the peace (even one that does not pass the high bar of the RTB tribunals)[/font]
[font=Times New Roman","serif]Would you agree that given the fact that, given the fact that the statute is silent about the reasons needed to terminate a tenancy using section 34(b), case law has to be used. In your opinion Would case law regarding discharge of contractual obligations (even if not applied to tenancy agreements) apply?[/font]

[font=Times New Roman","serif]Any type of answer is appreciated.[/font]

Denny_Crane · 27-12-2016 11:50am

Perhaps so reworking of the paragraphing in the top section?

Other than that, some reading for the flight home, Thank you.

GGTrek · 27-12-2016 1:07pm

Denny_Crane wrote: »

Perhaps so reworking of the paragraphing in the top section?

Other than that, some reading for the flight home, Thank you.

The paragraphing was perfect when I prepared it in word, then it gets screwed up each time I post and I have to make manual changes in the very small box provided by boards.ie (very user unfriendly interface

)

Denny_Crane · 27-12-2016 1:08pm

GGTrek wrote: »

The paragraphing was perfect when I prepared it in word, then it gets screwed up each time I post and I have to make manual changes in the very small box provided by boards.ie (very user unfriendly interface )

Aye, especially when you're trying to indent and format legal excerpts. I wasn't trying to nit pick, I do find it makes a huge difference to the number of people that read it.

GGTrek · 27-12-2016 1:35pm

There is also the very simple argument that maybe I am taking section 62(1)(e) of the RTA 2004 too seriously since section 62(1) should only explain how to make a termination notice formally valid and any "plausible" reason stated in a section 34(b) termination notice should be accepted by the RTB Tribunals or adjudicators. But the history of the pro-tenant bias of the RTB institutions makes me seriously doubt this.

Victor · 28-12-2016 3:33am

GGTrek wrote: »

The paragraphing was perfect when I prepared it in word, then it gets screwed up each time I post and I have to make manual changes in the very small box provided by boards.ie (very user unfriendly interface )

There is a little triangle in the bottom right corner. Drag it to make the box bigger.

Colking · 06-01-2017 8:34am

From the RTB site: http://www.rtb.ie/media-research/news-centre/latest-news/2016/12/23/rental-predictability-measures-introduced-24th-dec-2016

Security of Tenure

Security for both landlords and tenants is essential if the rental sector is to be both an attractive option for tenants and a safe and viable investment choice for investors. The rental strategy aims to move towards a situation where longer term tenancies are the norm. The legislation extends tenancies from 4 years to 6 year tenancies. This will apply to all new tenancies that come into operation after 24th December 2016 which includes a further Part 4 tenancy that come into existence after 24th December 2016. Landlords currently can terminate within the first six months of a tenancy without giving a reason. Once a Part 4 tenancy comes into existence it can only be terminated by using one of the grounds listed below.

If a landlord wishes to stop a Further Part 4 tenancy coming into existence they may serve a notice during the Part 4 tenancy with the notice period given to the tenant expiring on or after the end of the tenancy. A notice served in this way should provide a reason for termination but the reason does not need to be one of the grounds set out below. To ensure the notice is valid it is best practice for the notice period given to end during the first six months of the Further Part 4 tenancy.

If a landlord wishes to terminate during the first six months of the Further Part 4 tenancy they may serve a notice during the first six months without providing a reason or needing to rely on one of the grounds below. This method of termination will change soon and updates will be provided on our website.

The tenant has failed to comply with the obligations of the tenancy (having first been notified, in writing, of the failure, and given an opportunity to remedy it.)
The landlord intends to sell the dwelling within the next 3 months
The dwelling is no longer suited to the needs of the occupying household
The landlord requires the dwelling for own or family member occupation
Vacant possession is required for substantial refurbishment of the dwelling
The landlord intends to change the use of the dwelling

The Key here seems to be to terminate within the first 6 months after the 4 year period (for currently existing) Part 4 Tenancies. Do not give termination notice during the 4 years of the Part 4 Tenancy. The RTB themselves have stated no reason needs to be given and provide a sample letter to this effect :

SAMPLE NOTICE OF TERMINATION

To: (INSERT NAME)

Your tenancy of the dwelling at (Insert Address of Rented Dwelling) will terminate on XX/XX/XXXX. You must vacate and give up possession of the dwelling on or before the termination date. The reason for the termination of the tenancy is due to the fact that the landlord is entitled to terminate the tenancy during the first six months of the further Part 4 tenancy by providing a minimum notice period of not less than 112 days, pursuant to the Residential Tenancies Acts 2004 to 2015.

You have the whole of the 24 hours of the termination date to vacate and give up possession of the above dwelling.

Any issue as to the validity of this notice or the right of the landlord to serve it, must be referred to the Residential Tenancies Board under Part 6 of the Residential Tenancies Acts 2004 to 2015 within 28 days from the date of receipt of it.

This notice is served on XX/XX/XXXX.

Signed:
________________________
A. N. Other
Landlord

This part sounds ominous though :

This method of termination will change soon and updates will be provided on our website..

It would look like they are trying to hang their hat on that High Court Ruling that you've cited above.

GGTrek · 06-01-2017 10:58am

It has already changed. It is the main point of this thread!
Read section 42 of the RTA 2004. Then read repeal of section 42 in the latest changes of the RTA.
You cannot terminate a tenancy even at 4 years without reason now! This is a fact! 100% verified on my own skin. Unlike many posters in boards.ie I have skin in the game.
The only legal question left is: "which reasons are allowed to terminate a tenancy at 4 years using section 34(b) instead of section 42".

davindub · 07-01-2017 2:15am

"It is badly drafted (or lazily drafted) because judge Barret should have known that no reasons are specified in the act for a section 34(b) notice and with this statement he just created a interpretative void about which reasons are valid for a section 34(b). After making this statement he should have at least indicated which were in his opinion allowable reasons in statute or in case law to terminate a tenancy based on section 34(b), (sorry for the digression)"

A bit unfair...

It's appeal to HC on point of law only. Not law making, it is up to the government to modify the legislation to change the point of law. No point in complaining about the judgement which is directly derived from section 62. He is not stating what reasons are acceptable because they are not contained in the legislation, how would he know what the intent of the legislation is?

GGTrek · 07-01-2017 10:05am

davindub wrote: »

"It is badly drafted (or lazily drafted) because judge Barret should have known that no reasons are specified in the act for a section 34(b) notice and with this statement he just created a interpretative void about which reasons are valid for a section 34(b). After making this statement he should have at least indicated which were in his opinion allowable reasons in statute or in case law to terminate a tenancy based on section 34(b), (sorry for the digression)"

A bit unfair...

It's appeal to HC on point of law only. Not law making, it is up to the government to modify the legislation to change the point of law. No point in complaining about the judgement which is directly derived from section 62. He is not stating what reasons are acceptable because they are not contained in the legislation, how would he know what the intent of the legislation is?

It is totally FAIR in my opinion, the Judge created an interpretative void with his judgment that it was his duty as a High Court judge to avoid. The APPARENT intent of the legislation and legislators is VERY CLEAR and only the BIASED RTB adjudicators seem to trying at all costs not to see it to favour tenants. Their subsequent Tribunal report is nothing short of scandalous. Now it might be that the legislators knew very well what they were doing when repealing section 42, but to avoid a clear breach of constitutional property rights by repealing section 42 they said this when repealing section 42:

"Deputy Simon Coveney: First, I will speak to amendments Nos. 69 and 117. Increasing security for tenants and landlords is essential to the development of the rental sector as an attractive tenure choice and as a safe and feasible investment choice for a range of investors. The rental strategy includes a range of measures aimed at enabling a move towards secure long-term
tenancies. This is where most people in the House want us to go. One of our measures, action 8 of the rental strategy, commits to amending Part 4 of the 2004 Act to provide that a Part 4 tenancy will last for six years rather than four. This is intended to be the first step in a transition to tenancies of indefinite duration. The idea was very much a part of the Fianna Fáil submission
on the rental strategy as well as the strategies of the Labour Party, Sinn Féin and perhaps others. Certainly, that is the direction we need to go. I took the view that if we jumped there in one go, it might cause problems from a supply point of view. I referred to this matter earlier."

"Deputy Simon Coveney: When we get criticism from both sides, it indicates that we have got the balance reasonably right. Deputy O'Dowd asked about tax and vacant homes. We have not decided to do that in this strategy, but who knows what we will do in the future? I expect that would be a decision for budget time and there would have to be a great deal of consultation
before we did it. Deputy Burton referred to lengthening tenure. We are lengthening tenure in the rental strategy from four years to six. This will be in the legislation. In time, we need to move to a non-fixed period so that we can get more permanency in terms of tenancy. My judgment was that it was not the right decision to jump from where matters stand now, namely, four-year tenancies, into indefinite tenancies. That would have resulted in many landlords pulling properties from the market, which would not be good at a time when supply is the fundamental cause of most of the problems."

However this apparent intent of the legislators clearly clashes with what the RTB Tribunals and the High Court have decided in relevant case law and I believe the hypocrite Irish government through counsel must have known when they repealed section 42. If you go through the Oireachtas debate for the original RTA 2004 you will see the same kind of political arguments with respect to 4 years length in tenancies, however the RTB and the High Court have actually heavily trampled on it in 2016 in order to favour the tenants, showing again their pro-tenant BIAS. This why I say that the Irish legal system setup for landlord-tenant disputes is broken by design in order to favour tenants.

So far I have not received a single properly argumented reply to questions 2 and 3 of my main argument of the original post which are really the core of the matter. I have a strong belief that in this forum I shall receive none.

GM228 · 07-01-2017 11:07am

GGTrek wrote: »

davindub wrote: »

A bit unfair...

It's appeal to HC on point of law only. Not law making, it is up to the government to modify the legislation to change the point of law. No point in complaining about the judgement which is directly derived from section 62. He is not stating what reasons are acceptable because they are not contained in the legislation, how would he know what the intent of the legislation is?

It is totally FAIR in my opinion, the Judge created an interpretative void with his judgment that it was his duty as a High Court judge to avoid.

As davindub pointed out the question before the court was about a specific point of law, not about setting precedent.

The court was asked "must a notice of termination served on a ‘Part 4 tenant’ under s.34(b) of the Residential Tenancies Act 2004, as amended, state a reason for that termination?", not what reason or must a specific reason be given.

Q: Must a reason be given?
A: Yes.

It's as simple as that.

He had no duty to avoid leaving any void as that was not the question before the court. An interpretation of an acceptable reason or not was not the issue before the court. That would be something to come via future case law or legislative amendments, not judgements on points of law.

GGTrek · 07-01-2017 12:06pm

GM228 wrote: »

GGTrek wrote: »

davindub wrote: »

A bit unfair...

It's appeal to HC on point of law only. Not law making, it is up to the government to modify the legislation to change the point of law. No point in complaining about the judgement which is directly derived from section 62. He is not stating what reasons are acceptable because they are not contained in the legislation, how would he know what the intent of the legislation is?

It is totally FAIR in my opinion, the Judge created an interpretative void with his judgment that it was his duty as a High Court judge to avoid.

As davindub pointed out the question before the court was about a specific point of law, not about setting precedent.

The court was asked "must a notice of termination served on a ‘Part 4 tenant’ under s.34(b) of the Residential Tenancies Act 2004, as amended, state a reason for that termination?", not what reason or must a specific reason be given.

Q: Must a reason be given?
A: Yes.

It's as simple as that.

He had no duty to avoid leaving any void as that was not the question before the court. An interpretation of an acceptable reason or not was not the issue before the court. That would be something to come via future case law or legislative amendments, not judgements on points of law.

It is not "as simple as that", a High Court Judge has a duty to statutory interpretation that avoids causing inconsistencies, it is called the Golden Rule: “to take the whole statute together, and construe it all together, giving their words their ordinary significance, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.”
In any case insisting on discussing the quality of the judgment was not my main aim when I posted: the judgement is out, precedent has been (unfortunately) set, the real problem remains: which reasons are allowed for a section 34(b) notice. Again no one in this forum has even started to give an opinion or an idea on this question

hullaballoo · 07-01-2017 1:31pm

Moderator: GGTrek, please go easy on the on the emphatic formatting - it's not necessary and reads angrily.

davindub · 07-01-2017 5:54pm

GGTrek wrote: »

the judgement is out, precedent has been (unfortunately) set, the real problem remains: which reasons are allowed for a section 34(b) notice. Again no one in this forum has even started to give an opinion or an idea on this question

But what opinion is there to express? What reasons would you like there to be to end a part 4 tenancy? Why do you think they would fail?

GGTrek · 07-01-2017 9:46pm

davindub wrote: »

GGTrek wrote: »

the judgement is out, precedent has been (unfortunately) set, the real problem remains: which reasons are allowed for a section 34(b) notice. Again no one in this forum has even started to give an opinion or an idea on this question

But what opinion is there to express? What reasons would you like there to be to end a part 4 tenancy? Why do you think they would fail?

Now this is a fair question. Let's make an example.

A Residential Tenancy Agreement is a contract heavily regulated by statute with termination causes (which are causes for discharge of contract) again heavily regulated by statute. Statute (RTA 2004 to 2016) does not allow clauses in the contract that allow termination with conditions different from what statute defines (RTA 2004 is very strict in this sense).

Now there is one such condition defined by article 34(b) of the RTA 2004 to 2016 that says that by providing a termination notice before the 4 years of duration of the contract and with the notice period expiring on or after such duration of 4 years, the landlord can discharge the Tenancy contract without providing the reasons established in the table of section 34 of the RTA. This would all be fine and dandy if we did not consider Section 62(1)(e) of the same RTA that requires a non-specified reason in any case a Part 4 Tenancy has to be terminated. So statute does not indicate the reasons acceptable and RTB adjudicators, tribunals and ultimately the High Court are left to decide which reasons are allowable to discharge a Tenancy contract.

Example1: landlord has a tenant that frequently pays rent late, but not beyond the 14 days delay maximum allowed by statute to discharge the contract on part of the landlord before the 4 years. So the tenant is breaching frequently the warranties of the contract (late rent), but not the condition (14 days late) to discharge the contract. Would this change in the case of termination notice provided it respects section 34(b) and 62(1)(e) formally? Normally a breach of late rent of less than 14 days would not allow a discharge of a Tenancy contract, it would only allow a request for damages from the landlord (even these damages are strictly limited BTW to admin costs of providing late rent notices), but in the case of the section 34(b) notice, would the late rent be considered a reason that allows a discharge of a Tenancy contract?

Example2: the Tenancy contract has clauses that say he cannot keep a pet, but being a pet lover, he keeps a pet for 12 months hidden from the landlord. The lanldord finally discovers it and following RTA first provides a 14 days worning notice to tenant to get the pet out and request repair of damages (for example full professional cleanup and sterilization paid by the tenant), tenant complies within 14 days and landlord cannot discharge the Tenancy contract since breaking a pet clause is considered by statute a breach of warranty and not a breach of condition that causes discharge of contract. However trust between landlord and tenant is gone and landlord at 4 years duration of Tenancy contract wants to terminate the tenancy, would a breach of a pet clause such as the one described above be considered a reason that allows a discharge of a Tenancy contract using a section 34(b) notice?

Example3: on sporadic occasions the Tenant has harassed other tenants during his tenancy but not seriously enough to grant an anti-social behaviour termination or not frequently enough to grant a breach of peace eviction. However the landlord again is not happy with the behaviour of the tenant and at 4 years duration he/she wants to terminate the Tenancy contract, would the occasional harassment be considered a reason that allows a discharge of a Tenancy contract using a section 34(b) notice?

Example4: the tenancy has a clause that nothing can be sticked or nailed to the walls, the tenant is warned and takes off the stickers and nails and pays for the repairs/repainting. However the landlord has taken a dislike of the tenant because of this and wants to terminate at 4 years duration, would this breach of contract be considered a reason that allows a discharge of a Tenancy contract using a section 34(b) notice?

Example5: the tenant has often non-paying guests staying at the place, however the tenancy agreement does not have a clause prohibiting non-paying guests, the landlord speaks with the tenant and gives him a warning that the frequency of guests has to be reduced, the tenant does not comply so the landlord decides that he wants to terminate the Tenancy contract at 4 years, would this reason be considered enough to allow a discharge of a Tenancy contract using a section 34(b) notice?

Example6: the tenant is often unavailable when the landlords needs to perform inspections or contractors repairs, however if he gets formal notice he complies and lets the inspections happen. The landlord is tired of this behaviour and at 4 years duration he wants to terminate the Tenancy contract, would this reason be considered enough to allow a discharge of a Tenancy contract using a section 34(b) notice?

I mean I could continue with a very long list, but you can see where I am going. The question is actually very simple and difficult at the same time, in my opinion either all reasons above are accepted or none is accepted, since setting a threshold for seriousness of the breaches above would be a very difficult and very subjective task for the adjudicators and the High Court, not subjected to any direction about the reasons from statute and with very scarce case law on the matter.

So we have two possibilities:

1) Either the adjudicators and the High Court judges follow the intention of the legislator which is very well expressed in the Oireachtas debates I posted above and allow all the reasons above to terminate a Tenancy contract using a section 34(b) notice.

2) Or the adjudicators and the High Court judges depart from the intention of the legislator to again protect the "bad" tenants (as they have done in the past 12 years since RTA 2004, the case linked above is just a confirmation where reason was provided in a separate piece of paper and RTB adjudicators ignored it and nullified section 64A)

Given the clear pro-tenant bias of the RTB adjudicators my choice falls into option number 2: none of the reasons above will be accepted for section 34(b) notices, which means that after the repeal of section 42, tenancies in Ireland have for all practical purposes become indefinite.

If you know case law or statutory interpretation rules that go against my opinion expressed above, please I would be very happy to hear them.

GM228 · 08-01-2017 1:00pm

GGTrek wrote: »

In any case insisting on discussing the quality of the judgment was not my main aim

But, the High Court judgement was your opening point and ultinately the "main point" of your post to "take home" in relation to reasons (or rather lack of) for a termination so it's up for discussion in my book.

GGTrek wrote: »

My argument starts with this very badly drafted (in my opinion) judgment

<snip>

It is badly drafted (or lazily drafted) because judge Barret should have known that no reasons are specified in the act for a section 34(b) notice

<snip>

with this statement he just created a interpretative void about which reasons are valid for a section 34(b).

<snip>

After making this statement he should have at least indicated which were in his opinion allowable reasons in statute or in case law to terminate a tenancy based on section 34(b)

<snip>

The main point to take home from the argument above is: after the repeal of section 42 the landlord is now left to the merciful/subjective/biased interpretation of the RTB tribunals and ultimately the High Court about which reasons could be allowed to terminate a tenancy

So based on that it's worth debating the case and showing that your comments of what the judge should have done this, that or the other are totally unfounded because you obviously do not know how a "point of law" is dealth with and the "rules" associated with statutory interpretation.

GGTrek wrote: »

It is not "as simple as that", a High Court Judge has a duty to statutory interpretation that avoids causing inconsistencies, it is called the Golden Rule: “to take the whole statute together, and construe it all together, giving their words their ordinary significance, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary significance, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.”

It is a case of "as simple as that", and you need to get a better understanding of the rules of statutory interpretation and the Golden Rule and it's modern [lack of] application before trying to incorrectly pass them off as a fact of them being a statutory duty.

Your quote of the Golden Rule if I'm not mistaken is the 139 year old statement of Lord Blackburn, a lot has changed since then, the rule does not even have a place in statutory interpretation anymore as it has subsumed with the likes of the Plain Meaning Rule and the Mischief Rule into a new approach known as the Purposive Rules, even before the Purposive Rule when it was still applicable the Golden Rule was limited in application as a secondary form of statutory interpretation to the Literal Rule (now know as the Literal Approach) as confirmed by the Supreme Court in 1971.

As per the Supreme Court in Rahill vs Brady [1971] IR 69 you can't move from the Literal Approach to the Purposive type rules as easy as you may think:-

In the absence of some special technical or acquired meaning, the language of a statute should be construed according to its ordinary meaning and in accordance with the rules of grammar.

While the literal construction generally has prima facie preference, there is also the further rule that in seeking the true construction of a section of an Act the whole Act must be looked at in order to see what the objects and intentions of the legislature were; but the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which the words are used to indicate that a literal interpretation would not give the real intention of the legislature

This has more recently been re-affirmed again in the Supreme Court by Mrs. Justice Denham in DPP (Ivers) vs Murphy [1999] 1 ILRM 46.

No judge has a "duty to statutory interpretation that avoids causing inconsistencies". The "Golden Rule" (like other rules of interpretation bar the literal rule) was not binding on courts, but mearly a form of guidance tools. The same applies for the Purposive Rules.

The only "statutory duty" of a court in relation to a provision of an Act is to give something the literal interpretation and only then when a word or provision is absurd or ambiguous. This is a statutory requirement and in line with the Supreme Court judgement of our now Chief Justice as already mentioned in DPP (Ivers) vs Murphy [1999] 1 ILRM 46.

When literal interpretation then gives an absurd meaning the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

There is no absurdity or ambiguity to the requirement, it is quite clear that a reason is required, that was the question of the interpretation, weather a reason was required or not, not what reason may be required.

When there is clear plain language (which there is in the Act) a judge can't start changing the language for interpretation unless there is a constitutional challenge as Mr Justice Keane in Mulcahy vs Minister for Marine, (Unreported, High Court, 4th November, 1994) brilliantly put it describing putting violence to plain language:-

the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence

Lets deal with your next concern...

GGTrek wrote: »

Either the adjudicators and the High Court judges follow the intention of the legislator which is very well expressed in the Oireachtas debates I posted above and allow all the reasons above to terminate a Tenancy contract using a section 34(b) notice.

A court can't take into account any debates.

Nothing I can see in the debates suggested any reasons which would be considered valid, so why would the Judge rely on that for a complete interpretation? In any case as I said the judge can't use parliamentary debate or anything other than what is actually written in the act to determine any true intent.

Previously, however a judge could look at parliamentary debates (extrinsic aids for interpretation) in certain circumstances for help in interpretation (something which was considered very controversial), the courts however very rarely did this and were extremely reluctant to do so as only the wording of an Act as enacted itself was considered the true intention of an Act, on the rare occassion it did happen in the past it would only happen if the words of the Act were not precise and unambiguous as per the Supreme Court in Howard vs Commissioners of Public Works [1994] 1 IR 101.

The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver.

When they did look at parliamentary debates only the speech of a minister or proponent of the draft legislation would be meaningful for interpretation, but anyone who isn't a minister or a similar responsibiliry deputy would only provide an "insubstantial basis" for purposes of interpretation. However parliamentary debate can no longer be used due to various issues and it this was re-stated in the Supreme Court by Mrs. Justice Denham in the Crilly v Farrington [2001] 3 IR 251 case.

To hold that parliamentary debates are admissable would be an alteration in the law and an alteration which would have a profound effect. For example, it could have a negative effect on presumptions, such as the presumption of the constitutionality of legislation. Canons of construction and presumptions, which are the product of many years of common law, could be called into question. In addition, it could have an effect on the Dáil and Seanad which might feel bound when debating each Bill to state what is meant by each section of a Bill. It is possible that a Minister’s speech would then be drafted with a view to persuading a court of a certain approach. This would bring a new aspect to the parliamentary process in addition to its current role.

It might render the processing of legislation more complex. In addition, if a Minister’s statement in the Dáil is to be accepted, are those of the opposition to be excluded? Their interpretation may be radically different. Further, Bills are often amended as they proceed through the Dáil and Seanad. These amendments may significantly alter the intention expressed in the original ministerial speech. Are all speeches then to be analysed together with the amendments to obtain the expressed intention on the meaning of an Act?

For well established reasons, including those I have just stated, the speeches made by Ministers in the Dáil and Seanad when introducing legislation have not been admissible in court when the court is construing statutes. I am not persuaded that good reason has been indicated in this case for changing or developing the common law in this jurisdiction.

The requirement for a notice is an express provision in the Act, despite what you think a Judge can't add to an express provision so as to achieve objectives which to the courts appear desirable as per McGrath vs McDermott [1988] IR258.

The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable

Mr. Justice Barret was prevented by legal precedent to name acceptable or otherwise reasons for termination. Even if he hadn't been and mentioned examples of what may or may not be acceptable reasons to do so he would have risked an expressio unius est exclusio alterius situation.

Before forming opinions of badly drafted judgements and then pass off as fact in what judges should be doing and how they should be doing that make yourself better educated in relation to rules and procedures. Our judiciary deserve better respect than slamming them on what you think are ill informed opinions.

Case law as opposed to clarity on a point of law is what is required to answer your questions.

Until an amendment or case law gives guidance then any reason is fair game unless the RTB say otherwise, and if anyone does not agree with the RTB they can appeal to the High Court and get us some case law to go by.

Such an appeal may be out of reach of most due to the costs and efforts involved but that's just the way it is.

GGTrek · 08-01-2017 6:53pm

GM228, thank you very much for taking the time to answer with a well argumented post and especially your conclusions are most illuminating I would say: they confirm my suspicion that a big intepretative void has been created by the repeal of section 42 with the RTA 2016 and new guidance on how to terminate a tenancy at 4 (or 6 years for the new ones) will be decided mostly by RTB Tribunals (given the difficulties of appealing to High Court) so definitely a pro-tenant atitude will be taken and there is a big risk that tenancies will become indefinite.

GGTrek · 15-01-2017 6:35pm

The new "Planning and Development (Housing) and Residential Tenancies Act 2016" has been finally published in a more web readable format here:
http://www.irishstatutebook.ie/eli/2016/act/17/enacted/en/print.html

So I had a further more detailed reading after assisting to Coveney's interview here:
https://www.facebook.com/thejournal.ie/videos/1339746576045763/
where he says that it was up to him to decide when to commence the restrictions on terminations because of sales, so I went back to the check the new bill and here it is in part 1 (big miss on my initial reading), Section 1(3):

"(3) (a) Subject to paragraphs (b) and (c), this Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(b) Sections 33 to 37, sections 46 , 47 and 50 come into operation on the day following the passing of this Act.

(c) Part 5 comes into operation on the passing of this Act."

So while the extension of Part 4 rights for new tenancies to up to 6 years is already valid (section 37 of the RTA 2016) as well as all the rent control measures, the repeal of section 42 of the RTA 2014 (which is defined in section 41 od the RTA 2016) is still not operational. Also the restrictions to terminate tenancies because of sale or the "streamlining" of the RTB appeals are not operational yet.

I will express here again my personal opinion on why these sections did not become immediately operative, apart from RTB streamlining which will require some degree of reorganization (which means time).

My belief is that the speed of the approval process through the Oireachtas of the RTA 2016 was so great that government could not get a detailed review from counsel, especially on the combined restrictions affecting the property rights of landlords and the government is concerned that until counsel provides a detailed review of the legislation the Minister will not give the order to make the new sections operational.

It took the Oireachtas more than a year to debate the RTA 2004:
https://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2003/2303/default.htm
http://www.oireachtas.ie/documents/bills28/bills/2003/2303/b2303d.pdf
and interesting to know in the explanatory notes of the original bill proposed in 2003 it is written for section 34 "In addition a landlord may terminate on the basis that the 4 years are expired."

What is happening is that the legislator has attacked the property rights of landlords on three different grounds:
a) by putting rent controls and differentiating among different types of landlords depending on location and new or old tenancy
b) reducing the value of sale of the landlord property by putting strong limits to terminate tenancies if more than 10 dwellings are sold within a period of 6 months. Notice that the sale of an apartment block with 10 separate self-contained dwellings will be covered by this legislation.
c) effectively introducing by the back door indefinite security of tenure by repealing section 42 of the RTA 2004, making it impossible for a lanldord to recover possesion for no cause after 4 years + notice period have passed.

Regarding my previous consideration if point (c) above was an unforecast side effect of the new legislation, I must say that I was wrong again, since the legislator also introduced this change to section 62(1)(e) that requires a reason for terminating a part-4 tenancy:

"Amendment of section 62 (requirements for a valid notice of termination) of Act of 2004
42. Section 62 of the Act of 2004 is amended by inserting in subsection (1)(e) “or the tenancy is a further Part 4 tenancy,” after “6 months,”."

The legislator however left the reasons allowed to terminate a tenancy at the 4 or 6 years without definition, leaving in this way great freedom to the RTB tribunal to trample on the landlords property rights. I now strongly believe that also this lack of definition in the statute was on purpose.

Given the strong limitations imposed on third-party funding by Irish statute and case law and the necessity of locus standi, I believe only the biggest landlords (i.e. vulture funds/REITs) would have the funds to challenge the new legislation all the way to the Supreme Court on costitutional grounds, reducing very much the possibility of, in my opinion, an overdue challenge to the substantial and continuous interference of the Irish government on the residential properties lettings.

davindub · 16-01-2017 2:38am

You have locus standi as a citizen and landlord. You can apply directly to the high court and represent yourself.

Sorry I didn't reply earlier to your suggested reasons, to be honest I was flabbergasted and hadn't time to consider whether you meant them as a joke?

Anyway to sum up my opinion, justice Barrett has applied the act as stated, a reason must be provided. I don't think he envisaged most of the reasons you would provide coming before the RTB, but once a reason is stated, that is sufficient. He further explained that in essence the act had been complied with and it was his view that s64a should apply (he could not make a decision on the case, only state the point of law).

Repeal of section 42 will not have the effect you claim it will. Your solicitor will explain it properly if you ask him/ her.

I do not believe the RTB is pro-tenant or landlord, once both parties adhere to the act and the obligations contained in the act of each party become the rights of the other.

GGTrek · 16-01-2017 11:04pm

davindub wrote: »

You have locus standi as a citizen and landlord. You can apply directly to the high court and represent yourself.

Sorry I didn't reply earlier to your suggested reasons, to be honest I was flabbergasted and hadn't time to consider whether you meant them as a joke?

Anyway to sum up my opinion, justice Barrett has applied the act as stated, a reason must be provided. I don't think he envisaged most of the reasons you would provide coming before the RTB, but once a reason is stated, that is sufficient. He further explained that in essence the act had been complied with and it was his view that s64a should apply (he could not make a decision on the case, only state the point of law).

Repeal of section 42 will not have the effect you claim it will. Your solicitor will explain it properly if you ask him/ her.

I do not believe the RTB is pro-tenant or landlord, once both parties adhere to the act and the obligations contained in the act of each party become the rights of the other.

Unlike GM228 I believe the arguments of your quoted reply are poor and I shall go through them:
1) Of course I have locus standi, but even if I was crazy enough to mount a constitutional challenge to the government without legal assistance, I am not a penniless tenant: there is a realistic risk of failure and in such case legal costs would be awarded against me possibly bankrupting me. GM228 knows the reality of justice in Ireland much better that you do "Such an appeal may be out of reach of most due to the costs and efforts involved but that's just the way it is." Your suggestion is very naive to say the least and to propose something as crazy as this you obviously have no skin in the game.

2) My suggested reasons and examples were not a joke at all, to think this makes me assume again that you have no skin in the game. The examples just show different degrees of seriousness of breaches to the RTA or tenancy agreement clauses, these breaches would not be considered enough to terminate a tenancy by the RTB while a Part 4 tenancy is ongoing, but what is the whole point of section 34(b) if even when Part 4 rights should terminate at 4/6 years, the reasons to terminate a tenancy need to be as serious as to terminate a tenancy while Part 4 rights are ongoing. Remember that with Section 42 the least of the reasons needs to be provided: no reason at all needs to be given to terminate at or after 4 years!

Let me understand what you consider a joke: do you believe that a landlord should be forced to keep indefinitely a tenant that frequently pays rent late? For me this is no joke at all. The RTA is very forgiving about late payments while part 4 rights are ongoing. Do you believe that a tenant that occasionally harasses the other tenants in a building should have the right to stay indefinitely and it is a joke? Because this is what the RTA allows him/her at the moment: 17(1)(c) "engage, persistently, in behaviour that prevents or interferes with the peaceful occupation". With the excuse of the harassment having to be persistent, the RTB adjudicators and tribunals have allowed egregious behaviour of some tenants to go unpunished. For example read Report of Tribunal Reference No: TR0816-001903 / Case Ref No: 0516-26266, very bad tenant, partying until two or three in the morning every week, but hey he stopped now and he said sorry, so it is alright now by the RTB. Look for other anti-social behaviour cases at the RTB, they are scandalous on what the RTB adjudicators allow some tenants to do and get off scot-free. So this is an argument against your naive suggestion that the RTB adjudicators are not pro-tenant.

3) Finally on the effects of the repeal of section 42, you should have read GM228 conclusions: "Case law as opposed to clarity on a point of law is what is required to answer your questions. Until an amendment or case law gives guidance then any reason is fair game unless the RTB say otherwise, and if anyone does not agree with the RTB they can appeal to the High Court and get us some case law to go by." There is no case law at the moment on section 34(b) reasons for termination, so I am just looking at the pro-tenant stance of the RTB and fear that they will make it very difficult to terminate a tenancy at 4/6 years. You are also suggesting to ask a solicitor, believe me it is extremely difficult to find a solicitor in Ireland with enough knowledge of RTA and RTB case law that will attempt to answer this kind of questions, I believe I have found one, maybe in a few days I shall have at least a partial answer.

davindub · 17-01-2017 3:17am

GGTrek wrote: »

Unlike GM228 I believe the arguments of your quoted reply are poor and I shall go through them:
1) Of course I have locus standi, but even if I was crazy enough to mount a constitutional challenge to the government without legal assistance, I am not a penniless tenant: there is a realistic risk of failure and in such case legal costs would be awarded against me possibly bankrupting me. GM228 knows the reality of justice in Ireland much better that you do "Such an appeal may be out of reach of most due to the costs and efforts involved but that's just the way it is." Your suggestion is very naive to say the least and to propose something as crazy as this you obviously have no skin in the game.

2) My suggested reasons and examples were not a joke at all, to think this makes me assume again that you have no skin in the game. The examples just show different degrees of seriousness of breaches to the RTA or tenancy agreement clauses, these breaches would not be considered enough to terminate a tenancy by the RTB while a Part 4 tenancy is ongoing, but what is the whole point of section 34(b) if even when Part 4 rights should terminate at 4/6 years, the reasons to terminate a tenancy need to be as serious as to terminate a tenancy while Part 4 rights are ongoing. Remember that with Section 42 the least of the reasons needs to be provided: no reason at all needs to be given to terminate at or after 4 years!

Let me understand what you consider a joke: do you believe that a landlord should be forced to keep indefinitely a tenant that frequently pays rent late? For me this is no joke at all. The RTA is very forgiving about late payments while part 4 rights are ongoing. Do you believe that a tenant that occasionally harasses the other tenants in a building should have the right to stay indefinitely and it is a joke? Because this is what the RTA allows him/her at the moment: 17(1)(c) "engage, persistently, in behaviour that prevents or interferes with the peaceful occupation". With the excuse of the harassment having to be persistent, the RTB adjudicators and tribunals have allowed egregious behaviour of some tenants to go unpunished. For example read Report of Tribunal Reference No: TR0816-001903 / Case Ref No: 0516-26266, very bad tenant, partying until two or three in the morning every week, but hey he stopped now and he said sorry, so it is alright now by the RTB. Look for other anti-social behaviour cases at the RTB, they are scandalous on what the RTB adjudicators allow some tenants to do and get off scot-free. So this is an argument against your naive suggestion that the RTB adjudicators are not pro-tenant.

3) Finally on the effects of the repeal of section 42, you should have read GM228 conclusions: "Case law as opposed to clarity on a point of law is what is required to answer your questions. Until an amendment or case law gives guidance then any reason is fair game unless the RTB say otherwise, and if anyone does not agree with the RTB they can appeal to the High Court and get us some case law to go by." There is no case law at the moment on section 34(b) reasons for termination, so I am just looking at the pro-tenant stance of the RTB and fear that they will make it very difficult to terminate a tenancy at 4/6 years. You are also suggesting to ask a solicitor, believe me it is extremely difficult to find a solicitor in Ireland with enough knowledge of RTA and RTB case law that will attempt to answer this kind of questions, I believe I have found one, maybe in a few days I shall have at least a partial answer.

Naive?

Please do not insult me, you have no idea of my experience or business interests in this Jurisdiction and others. I recommended you speak to a solicitor, because very little you have stated is reasonable interpretation.

I was hoping the reasons were a joke, with the rent argument aside, they are examples of spiteful, petty landlord behaviour to be associated with a troublemaker, in each example the situation is resolved, then to punish again? I understand why you would think the RTB is pro-tenant if you wish to behave like this, same as lunatic tenants state the RTB is pro-landlord.

Have Irish tenancies become indefinite for all practical purposes with RTA amendments

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