Latest RTB Tribunal reports

GGTrek

Reports of past summer were published between last Friday and today. As usual there are some interesting practical points to consider:
1) For tenants, try to avoid taking a REIT to the RTB or irritate their directors enough for them to take the tenant to the RTB, these two cases are good examples
https://www.rtb.ie/docs/default-source/tribunal-reports/tr0517-002341-report.pdf?sfvrsn=0
Guy was in arrears of 7k (on a comparatively high rent, so around 4 months late), paid back 6.6k (but further rent accumulated), REIT (rightly in my opinion) showed no mercy and order for possesion was granted. There was a massive thread lately on a guy who was a tenant of a big institutional landlord who got a termination notice and was getting all sorts of wrong advice from some forum members, from HAP officers and from other people he contacted. The moral is: institutional landlord have plenty of serious legal advice before serving a termination notice, even paying back rent will not be enough and contesting the termination notice will most likely just delay the inevitable, but will not avoid it. The REIT representative said if the rent balance had been paid in full they would have agreed to continue the tenancy, so they are not unresponsive to good faith negotiation.

The second case was this one: https://www.rtb.ie/docs/default-source/tribunal-reports/tr0317-002235-dr-0117-31276-report.pdf?sfvrsn=0
Tenant did all the possible to piss off the REIT directors and employees: serious anti-social behaviour, withdrawing rent, plenty of lies in her oral statements (with no consequences of perjury), ... a shining example of bad tenant acting in bad faith and playing the system. The behaviour was so bad that the REIT using its own employees as witnesses managed to get a 7 days termination notice approved as valid  which requires almost a beyond reasonable doubt kind of proof to get it validated by an RTB Tribunal. However the 7 days anti-social termination notice meant nothing to the landlord: it still took the landlord 6 months to get a possesion order against a lying, bad faith, playing the system tenant who was still in possession of the apartment at the time of the determination order and maybe will only get out when circuit court summons are issued after 3 further months. It should not take 9 months and such a colossal amount of work (solicitor, representative, two employee witnesses, other tenant witness, several hearings) to kick out a serious anti-social tenant, who for an eviction is provided by the badly thought RTA 2004 with as many guarantees as in the criminal justice system where the penalty is much more severe (loss of liberty instead of loss of housing). If I were the landlord, I would have concurrently made a crime report to Garda and made this kind of tenant pay her criminal dues for her behaviour, all the necessary proof and witnesses were already there. The tenant in such case lost nothing except some of her free time and gained several months of free rental, the threat of loss of liberty and criminal charges might have focused her mind on getting out as soon as possible and stop playing the system. These are the cases that should go to the press. In any case it still shows that a REIT has the legal muscle to kick out even really bad tenants eventually.

2) The RTB has a strong pro-tenant bias and it is not anecdotal, it shows in the RTB tribunal reports. The first case, another tenant playing the RTB and the system to her advantage:
https://www.rtb.ie/docs/default-source/tribunal-reports/tr0517-002352-dr0217-31883-report.pdf?sfvrsn=0
Two RTB cases taken to Tribunal (two and a half-years for landlord to get rid of the tenant), the first one tenant won on a technicality and because the landlord did not have proper legal advice, the second one lost since the landlord finally paid big money for solicitor and it still took 9 months to get rid of the tenant on section 42 notice (unfortunately repealed by Coveney and friends with the great RTA 2016), played the system with repeated medical reports when she saw that her case was hopeless. The RTB and the Tribunal bended over backward to accommodate the tenant demands and breaking appeal time-limits and granting extensions and used any exception possible allowed in law to do so! Landlord solicitor did well to register complaint in the Tribunal proceeedings: "The Landlord’s representative, Mr XXX, began by expressing his dissatisfaction with the Board of the RTB, the offices of the RTB and the Tribunal.

Mr XXX ’s first issue was that, on behalf of the Landlord, he objected to the granting of an extension of time within which to lodge an appeal to the decision of the adjudicator following the adjudication on XXX. The Tribunal drew Mr XXX’s attention to section 88 of the Act which states as follows:
88.—(1) The Board may, on application to it, extend the time limited by any provision of this or any other Part for the referral of a dispute to it for resolution or an appeal under section 100 to the Tribunal against a determination of an adjudicator under section 97(4)(a). The Tribunal stated that the Act gave to the Board of the RTB the authority to extend the time limit for an appeal. The Tribunal was not aware of the circumstances surrounding the granting of the appeal nor had it played any role in this process."

"Mr XXX stated that he was obliged to exhaust the remedies available, that he had come before the Tribunal to make his argument and put on record the Landlord’s assertion that the appeal was not valid. Mr XXX had been told nothing by the Board about the extension of time. He stated that he had requested correspondence from the Board as to the reasons for the late granting of the appeal and when it was that the Tenant had indicated her intention to appeal.
Mr XXX’s second issue was that certain correspondence had not been circulated by the RTB; the letter from the Landlord to the RTB which was after the appeal time closed. He stated that the office of the RTB was corresponding with the Tenant all the time. He also stated that the RTB had responded to the Landlord’s letter that there was no appeal. He stated that the Tribunal had failed or refused to circulate the letter." Of course the RTB tribunal only confirmed the adjudicator determination order instead of doing the right thing and declare the appeal invalid and at the same time sending out a message to other tenant players that the game is over.
What I suggest landlords to do in such cases of blatant bias from the RTB and their adjudicators (I have done it twice) is the following: first make a formal complaint to the RTB giving names and surnames of the officers and adjudicators involved, providing all the evidence and the RTB code of conduct rules broken (https://www.rtb.ie/docs/default-source/corporate-governance/code-of-conduct-for-staff-and-director.pdf?sfvrsn=2 email: customer.service@rtb.ie) one of the directors of the RTB will answer (they say within 14 days, but they take around a month to answer), if the answer is still not satisfactory like in the Tribunal case above, a complaint to the Office of the Ombudsman should be made  https://www.ombudsman.ie/en/Make-a-Complaint/Complaint-online-form/. This will focus the RTB minds much more and make them more accountable for their biased actions. If serious damage was caused by the RTB officers behaviour, then after the administrative process is completed at the Ombudsman, RTB officers should be personally sued at District or Circuit Court for tort (but this is going to be much more difficult and expensive, so the merits of the case have to be evaluated). If every wronged landlord would at least the complain to the RTB and then floow up to the Ombudsman, maybe the pro-tenant bias would diminish to an acceptable level (but not disappear, since the pro-tenant bias is ingrained in the RTA).

"The Landlord addressed the Tribunal herself. She stated that she was very unhappy with the offices of the RTB. She has been involved with the dispute process in relation to this dwelling for the last 2 and a half years. She stated that she was advised by the RTB that she did not need a lawyer which she stated was not the case and she felt lucky to have had legal assistance. She stated that she has no trust in anyone. She stated that she has now seen the transcripts of the phone calls having been told they were unavailable. She stated that there was a bias towards the Tenant which should not go unnoticed. She stated that the whole process needs to carefully examined. The scheduled date for the last hearing was adjourned at the last minute and she was informed of this by phone call. The Landlord stated that she had left her home early this morning to attend this hearing. She stated that the hearings had been adjourned on at least 5 occasions. The Landlord sought assurances from the Tribunal that today’s hearing was the end of the matter."

I mean the hearing instead of being an hearing about the merits of the case had become an accusation against the RTB officers and its Tribunal who had to defend their own biased actions. Tenant player did not even present herself but tried again a further postponement (after 5 times!) on last minute medical grounds. This case shows how much of a kangaroo court the RTB is. Why doesn't the press show these cases instead of shouting that tenants need more protection? When some politician or forum poster or journalist says that the RTB needs more powers, I say no: the RTB needs way less power than it has now and many of her powers should go to a proper court which will guarantee fairness.

Let's keep going on RTB adjudicators and Tribunals pro-tenant bias since there was another shining case that any serious court would have thrown out on frivolous grounds before reaching any hearing (but not the RTB tribunal where even nutjob gets a hearing!): https://www.rtb.ie/docs/default-source/tribunal-reports/tr0417-002323-dr-0217-31925-report.pdf?sfvrsn=0

This is a real beauty: "However, he claimed that as a result of receiving the Notice of rent review he had suffered stress and anxiety and he said he was seeking compensation and damages from the Respondent Landlord. He sought to rely on correspondence he had received from his doctor and a counsellor which had been submitted to the RTB on Thursday, 20 July 2017 and which the Respondent Landlord had not received in advance of the hearing." Guess how much this guy asked for: "He claimed the Respondent Landlord was putting pressure on him with all the cases. He said there were two other cases pending.
He said that any of the previous cases he had brought to the RTB were as a result of the Respondent Landlord trying to breach his rights as a Tenant. He said he did not make claims to the RTB lightly :D:D and he said he had received the assistance of an N.G.O. specialising in tenancy matters . He stated that the pressure was affecting his right to peaceful occupation of the dwelling as he was not at peace in it and he said he was being penalised by the Landlord. He said he was seeking € 30,000.00 compensation and € 40,000.00 in damages for the stress and anxiety." :angel: I mean, of course he lost his appeal, but why should he not be made to pay legal costs and time for such frivolous actions! I am only guessing who was the "NGO specialising in tenancy matters", maybe it starts with T and ends with D . I mean the RTB allows tenants real abuse of the legal system and this tenant should be taken as shining example: "The Respondent Landlord said she was opposing the Respondent Tenant’s claim for compensation and damages. She said the tenancy was very stressful and caused her health issues however she said she did not want to go into details on the matter. She said she had been before Tribunals and Adjudications nineteen times since the commencement of the tenancy in February 2015."

The two cases above show that it is paramount to get rid of the so called RTB tribunal and any appeal should be dealt with by a propert court (District or Circuit) where proper fees are paid, frivolous actions are thrown out before hearings are granted and legal costs are paid if you like to play the system. The two cases show what a pro-tenant joke the RTB has become.

On the same danger of having to deal with biased crazy pro-tenant socialist adjudicator, this is the case: https://www.rtb.ie/docs/default-source/tribunal-reports/tr0517-002332-dr0117-31728-report.pdf?sfvrsn=0. The adjudicator of first instance granted € 4200 to the tenant becaused the notice of termination due to sale was deemed invalid and wanted to punish the landlord because in his/her pro-tenant bias he/she believed that it was done to increase rent (based on absolutely no proof but the tenant's own words!!!), even after the landlord produced evidence of the actual sale (actual solicitor letters), the RTB Tribunal still gave € 500 of damages to the tenant!!! This is unbelievable bias even at the Tribunal level, and the reasons was: "It was reasonable for the Respondent Tenant to doubt the Landlord’s intentions for the property in circumstances where he was deprived of the benefit of a Statutory Declaration which is required under Section 34 to demonstrate the bona fides intention of a Landlord in respect of a sale. The absence of this Statutory Declaration caused stress and inconvenience to the Respondent Tenant and his family.
Having regard to the evidence of the Respondent Tenant as submitted in the RTB casefile and the duration of the tenancy the Tribunal is satisfied that a sum of € 500 is a reasonable amount of damages in respect of this breach. Having regard to the nature of the loss and the right of the Respondent Tenant to a prompt remedy the Tribunal is
satisfied that 28 days is a reasonable period to pay this sum of damages."

Why do I say that it is a scandalous decision to award damages for a formality that makes a notice of termination invalid. Because in no case the RTB Tribunal will grant damages to the landlord when the tenant overholds and challenges a perfectly valid notice of termination because of stress to the landlord! So when someone (in bad faith or on ideological grounds) in this forum posts that the RTB provides fair justice I just laugh and I will attack his/her view vigorously, because it is a dangerous view.

3) Finally one important point for landlords to always have a written lease so that tenant's lies can be disproved. The lease is there to defend the landlord, it is very much counterproductive for a tenant to have a lease. Someone in this forum suggested that in these days it is not worth having a written lease anymore, I strongly disagree and this tribunal case will further prove the necessity of a written lease to defend the landlord: https://www.rtb.ie/docs/default-source/tribunal-reports/tr0617-002399-dr0317-32784-report.pdf?sfvrsn=0

Basically the tenant challenges the notice of termination due to rent arrears, stating that his verbal agreement with the landlord on rent was different than what stated in the signed leases (talking about frivolous litigation:)). Tribunal throws out tenant's lies and accept that rent was what was stated in the lease and validates notice of termination based on rent arrears. Now I have seen a few cases where no lease was signed but rent was paid as tenant wished, tenants brings a friend as witness and states that the rent paid according to the tenant's wishes is exactly what was agreed between the parties and landlord is utterly screwed.

__..__

What a great analysis. Thankyou.

And we wonder why landlords want to leave the market. It's clear that property rentals are only for big business now and anyone thinking of getting into it would want to have huge funds behind then for all the things that could go wrong.

I wonder how many landlords might at so.e stage sue the rtb for damages due to clear biases costing them not just financial but reputational damage. Maybe it's time landlords started doing that. Then maybe the rtb might be shown up for what it is.

davindub

__..__ wrote: »

What a great analysis. Thankyou.

And we wonder why landlords want to leave the market. It's clear that property rentals are only for big business now and anyone thinking of getting into it would want to have huge funds behind then for all the things that could go wrong.

I wonder how many landlords might at so.e stage sue the rtb for damages due to clear biases costing them not just financial but reputational damage. Maybe it's time landlords started doing that. Then maybe the rtb might be shown up for what it is.

I think it was meant to be humorous. No-one with any cop on would recommend sueing the RTB in Tort for adjudicating a case.

Pkiernan

Great post.

Regarding a written lease. This is very important for the landlord.
However a 1 year written lease immediately puts a LL at a disadvantage.

A written lease with no fixed term would be the best course of action. As above a 1 year lease is a very bad idea as it means the LL can't get rid of a tenant in the first 6 months and is basically stuck with them for 6 years.

__..__

davindub wrote: »

I think it was meant to be humorous. No-one with any cop on would recommend sueing the RTB in Tort for adjudicating a case.

Why not?
It looks like they are not really adjudications in some of those cases.

davindub

__..__ wrote: »

Why not?
It looks like they are not really adjudications in some of those cases.

In terms of defamation, privilege prevents action against judges, barristers, solicitors whilst in court. Etc........full list

statement made in either House of the Oireachtas by a TD or Senator,
(b) report of a statement by a TD or Senator produced by authority of either House,
(c) statement made in the European Parliament by an MEP,
(d) report of a statement by an MEP produced by authority of the European Parliament,
(e) statement made in a court judgment,
(f) statement made by a person performing a judicial function,
(g) statement made by a party, witness, lawyer or juror during judicial proceedings,
(h) statement made during and connected with proceedings involving limited functions of a judicial nature (such as the Employment Appeals Tribunal),
(i) fair and accurate report of public proceedings or a decision of any court in the Republic or Northern Ireland,
(j) fair and accurate report of certain family law proceedings,
(k) fair and accurate report of proceedings of courts including the Court of Justice of the European Union, the Court of First Instance of the European Union, the European Court of Human Rights and the International Court of Justice,
(l) statement made in proceedings before a committee appointed by either or both Houses of the Oireachtas,
(m) statement made in proceedings before a committee of the European Parliament,
(n) statement made during and connected with proceedings before a Tribunal of Inquiry,
(o) statement in a tribunal report,
(p) statement made during and connected with proceedings before a commission of investigation,
(q) statement in a commission report,
(r) statement made during a coroner’s inquest or in a decision or verdict at an inquest,
(s) statement made during an inquiry conducted by authority of the government, a minister, the Dáil or Seanad or a court,
(t) statement made during an inquiry in Northern Ireland on the authority of the British government, Northern assembly, minister or court,
(u) statement in a report of such inquiries,
(v) statement made during and connected with proceedings before an arbitral tribunal, or
(w) statement made in accordance with a court order in the Republic of Ireland.

davindub

__..__ wrote: »

Why not?
It looks like they are not really adjudications in some of those cases.

https://www.irishtimes.com/news/court-ruling-upholds-judicial-immunity-1.709675

Also don't contact the office of the ombudsman in regards case rulings, they are likely to want to know who recommended you to contact them.....

quadrifoglio verde

The man with the 7k rent arrears later reduced to 4k sounded like a Nigerian prince
I have a 60k cheque to come through from Nigeria....sure

Dr_Kolossus

Thank you for this post OP.

Something really needs to be done.

GGTrek

A lease should be written and signed to avoid later frauds, but nowadays it doesn't make sense to make the fixed term longer than 5 months or having any fixed term at all. There are a lot of ads in Daft about 12 months minimum, this only benefits the agents and totally detrimental to the landlord.

With respect to when to go to the Ombudsman, clearly determination orders of the RTB Tribunal can only be appealed to the High Court on points of law through an appeal by way of case stated. Problem is that for a small landlord the legal costs at the High Court will dwarf any benefit.

However only RTB adjudicators are exempt from Ombudsman overview (adjudicators are not RTB employees at all), all the RTB officers (employees) who handle the casework are fully accountable to the Office of the Ombudsman and two years ago I took the director of IT of the RTB to the Ombudsman due to the illegal security blocks on foreign IPs (which were taken off). For example the RTB officers that handled the casework appeal of the landlord whose tenant was playing the system with last minute medical grounds and the appeal timeframe was broken but the RTB officers still allowed the appeal (it was not the RTB Tribunal in such case it was a biased RTB officer bending the law), this is a very good case to take to the Ombudsman to make the RTB officers respond for their bias and errors. They should learn that they are not above the law, they might become very careful when the next player tenant comes along and shut the appeal route when it is abused in such way, since they know they will be made accountable to a third party who is not their line manager. Judicial immunity does not apply to RTB employees who are just civil servants.

davo10

Look at these prize winners. Haven't paid rent to current or previous owners, but a Judge let's them stay there rent free until next March. The mind boggles.


http://www.breakingnews.ie/ireland/cork-couple-prepared-to-leave-city-property-bought-by-fund-next-year-808345.html

davindub

davo10 wrote: »

Look at these prize winners. Haven't paid rent to current or previous owners, but a Judge let's them stay there rent free until next March. The mind boggles.


http://www.breakingnews.ie/ireland/cork-couple-prepared-to-leave-city-property-bought-by-fund-next-year-808345.html

Commercial property, different from RTB.

davo10

davindub wrote: »

Commercial property, different from RTB.

Read it again, they were living there, the business has closed.

davindub

davo10 wrote: »

Read it again, they were living there, the business has closed.

High court.....commercial lease.

davindub

GGTrek wrote: »

A lease should be written and signed to avoid later frauds, but nowadays it doesn't make sense to make the fixed term longer than 5 months or having any fixed term at all. There are a lot of ads in Daft about 12 months minimum, this only benefits the agents and totally detrimental to the landlord.

With respect to when to go to the Ombudsman, clearly determination orders of the RTB Tribunal can only be appealed to the High Court on points of law through an appeal by way of case stated. Problem is that for a small landlord the legal costs at the High Court will dwarf any benefit.

However only RTB adjudicators are exempt from Ombudsman overview (adjudicators are not RTB employees at all), all the RTB officers (employees) who handle the casework are fully accountable to the Office of the Ombudsman and two years ago I took the director of IT of the RTB to the Ombudsman due to the illegal security blocks on foreign IPs (which were taken off). For example the RTB officers that handled the casework appeal of the landlord whose tenant was playing the system with last minute medical grounds and the appeal timeframe was broken but the RTB officers still allowed the appeal (it was not the RTB Tribunal in such case it was a biased RTB officer bending the law), this is a very good case to take to the Ombudsman to make the RTB officers respond for their bias and errors. They should learn that they are not above the law, they might become very careful when the next player tenant comes along and shut the appeal route when it is abused in such way, since they know they will be made accountable to a third party who is not their line manager. Judicial immunity does not apply to RTB employees who are just civil servants.

Still not correct.

davo10

davindub wrote: »

High court.....commercial lease.

Are you saying residential cases cannot come before the High Court, only commercial leases?

davindub

davo10 wrote: »

Are you saying residential cases cannot come before the High Court, only commercial leases?

Depends what you mean by come before. But yes, residential tenancies cases cannot be heard in the HC.......I have a feeling you don't know what point of law entails, but it is entirely just to clarify a point of law, there is no decision, no award, the respondent is always the RTB...etc

Anyway academic. The case involved a purported commercial lease on two buildings vs trespass. Neither of which are heard by the RTB.

GGTrek

davindub wrote: »

GGTrek wrote: »

A lease should be written and signed to avoid later frauds, but nowadays it doesn't make sense to make the fixed term longer than 5 months or having any fixed term at all. There are a lot of ads in Daft about 12 months minimum, this only benefits the agents and totally detrimental to the landlord.

With respect to when to go to the Ombudsman, clearly determination orders of the RTB Tribunal can only be appealed to the High Court on points of law through an appeal by way of case stated. Problem is that for a small landlord the legal costs at the High Court will dwarf any benefit.

However only RTB adjudicators are exempt from Ombudsman overview (adjudicators are not RTB employees at all), all the RTB officers (employees) who handle the casework are fully accountable to the Office of the Ombudsman and two years ago I took the director of IT of the RTB to the Ombudsman due to the illegal security blocks on foreign IPs (which were taken off). For example the RTB officers that handled the casework appeal of the landlord whose tenant was playing the system with last minute medical grounds and the appeal timeframe was broken but the RTB officers still allowed the appeal (it was not the RTB Tribunal in such case it was a biased RTB officer bending the law), this is a very good case to take to the Ombudsman to make the RTB officers respond for their bias and errors. They should learn that they are not above the law, they might become very careful when the next player tenant comes along and shut the appeal route when it is abused in such way, since they know they will be made accountable to a third party who is not their line manager. Judicial immunity does not apply to RTB employees who are just civil servants.

Still not correct.

Still fully correct because I have taken two RTB Employees in two different cases (one was due to abuse of process in an adjudication) to Ombudsman.

davo10

GGTrek wrote: »

Still fully correct because I have taken two RTB Employees in two different cases (one was due to abuse of process in an adjudication) to Ombudsman.

Top man/woman.

davindub

GGTrek wrote: »

Still fully correct because I have taken two RTB Employees in two different cases (one was due to abuse of process in an adjudication) to Ombudsman.

Still not correct.

And you are being untruthful.

The ombudsman accepts complaints only and has no powers to do anything other than make recommendations. But there is a whole separation of powers doctrine to prevent what you are describing.

But then again you did mix up mediation and adjudication in your stories before.

GGTrek

davo10 wrote: »

GGTrek wrote: »

Still fully correct because I have taken two RTB Employees in two different cases (one was due to abuse of process in an adjudication) to Ombudsman.

Top man/woman.

Just to clarify. I do not have resentment against the RTB as an institution. Just with the lazy/ignorant/bending the law/biased employees who are a minority that are screwing the institution. For example in the adjudication casework, two of the RTB officers involved were top notch and I praised them in the complaint since thanks to their work the problems caused by the lazy/law bending officer were overcome. You always put names and surnames, responsibility should always be personal. Civil servants should not hide behind the institution and unfortunately this is what happens very often. In case of the IT director of the RTB, she was just stubborn/incompetent and thought she was above the law. The two cases all ended with apologies and detailed written explanations (which at first the officers or the line manager were not willing to provide) and in the case of the IP blocking it was removed. Again I suggest landlords to use the internal complaint process and then the Ombudsman whenever serious issues appear in the procedure . The RTB procedure is unfortunately too lax, unlike the courts that have to abide to the strict court rules which are there to guarantee fairness. Again it is the c...y RTA allowing this.