The Residential Tenancies and Valuation Act 2020 (the Act), enacted on 1 August 2020, modifies the protections for tenants in earlier emergency legislation (the Emergency Measures Act) enacted in March 2020 (see COVID-19 Update: Measures to assist residential tenants - inhibitions on tenancy terminations and rent increases).
The Emergency Measures Act imposed a ban on residential rent increases and termination of tenancies during the emergency period, which was for an initial period of 3 months and was subsequently extended to 1 August 2020. These protections have now lapsed.
Key points
- restriction on termination of commercial tenancies removed.
- Residential tenants facing termination for non-payment of rent, where such non-payment is due to Covid-19, may file a protective declaration with the Residential Tenancies Board (RTB).
- No residential rent increases between 1 August 2020 and 10 January 2021 (the emergency period).
Commercial tenancies
In a move welcomed by commercial landlords, Section 13 of the Act has deleted section 5(7) of the Emergency Measures Act, which was thought could be interpreted to extend the protection against tenancy termination to commercial tenancies.
Filing of declaration with RTB
Landlords may now serve notice of termination of residential tenancies except, in certain circumstances, in respect of non-payment of rent. In order to avail of protection during the emergency period, tenants must submit a declaration to the RTB, with a copy to the landlord. This declaration must confirm that the tenant is at significant risk that their tenancy will be terminated by their landlord and that he or she is unable to pay rent at any time during the period 9 March 2020 to 10 January 2021, because he or she was or is
- temporarily out of work due to having contracted Covid-19, without entitlement to be paid by his or her employer;
- in receipt of (or entitled to receive) the temporary wage subsidy; or
- in receipt of (or entitled to receive) any other statutory payment paid for the purpose of alleviating financial hardship resulting from the loss of employment occasioned by Covid-19, including rent supplement or a supplementary welfare allowance.
Procedure for termination of protected tenant
During the emergency period and where a valid declaration has been made:
- the landlord must serve a notice of rent arrears (notice of arrears) on the tenant and the RTB, following which a tenant must be afforded a minimum of 28 days to pay his or her rent.
- where the RTB receives a notice of arrears, it is obliged to provide the tenant with written information to enable him or her to obtain advice on money and personal debt management of the type provided by the Money Advice and Budgeting Service (MABS).
- If the tenant fails to pay his or her rent within the period specified in the notice of arrears, the landlord may serve notice of termination with a minimum notice period of 90 days (instead of 28 days outside of the emergency period).
- A notice of termination served during the emergency period shall not specify a termination date that falls earlier than 11 January 2021.
- A tenant cannot acquire security of tenure rights simply because his or her tenancy is extended by virtue of the Act.
No residential rent increases
Section 6 of the Act provides that no rent increase for residential tenants can take effect during the emergency period and no increase in rent will be payable in respect of any time during that period.
Conclusion
Whilst the Act removes uncertainly with regard to commercial tenants, it will be interesting to see the real impact on residential tenancies. Residential Landlords will need to ensure that the procedures set out by the Act are adhered to, noting in particular the increased warning period and requirement to serve the RTB with notice of arrears and notice of termination.
