knowledge 18 June 2019 |

Landlord and Tenant Investigations – Extensive New Powers for Regulator

The Residential Tenancies (Amendment) Act 2019 (the “2019 Act”) inserts a new Part 7A into the Residential Tenancies Act 2004 (“2004 Act”) relating to complaints, investigations and sanctions. Under Part 7A, commenced as of 1 July 2019, the Residential Tenancies Board (“RTB”) may of its own volition or on foot of a complaint, commence an investigation in respect of possible improper conduct by a landlord. Improper conduct is:

• a failure by a landlord to comply with rent increase restrictions in a rent pressure zone ("RPZ") and related obligations;

• a failure by a landlord to comply with tenancy registration obligations; 

• citing reasons for termination known to be false or misleading in a material respect; or  

• a failure by a landlord to offer back a dwelling to a tenant where an obligation to do so arises. 

Obligation to investigate

The RTB must investigate a complaint unless it is satisfied that: 

• insufficient information has been provided; 

• the complaint does not relate to improper conduct; 

• the complaint is frivolous or vexatious, without substance or foundation or has not been made in good faith; or 

• the complaint should be resolved under the dispute resolution provisions of Part 6 of the 2004 Act. 

Importantly, where a complaint is withdrawn, the RTB may still investigate the conduct complained of on the basis of its independent powers of investigation.

Authorised officers and powers

The RTB can appoint authorised officers to investigate complaints. These officers have extensive powers of entry and search. Their powers also include powers to inspect, copy and remove records as well as to compel persons to provide assistance and information.

It is an offence for a person to: 

• withhold, destroy, conceal or refuse to provide information; 

• fail or refuse to comply with any requirement of an authorised officer; or 

• otherwise obstruct or hinder an authorised officer in the performance of his or her functions. 

A person who fails to co-operate with an investigation is liable on summary conviction to a class A fine¹ or imprisonment for up to 12 months or both and on conviction on indictment to a fine of up to €50,000 or imprisonment for up to 5 years or both.

The legislation also sets out in detail the procedures to be followed by an authorised officer and the ultimate “decision maker”, another individual to be appointed by the RTB, in the context of an investigation. These include the opportunity for the landlord to make submissions in relation to the investigation or to seek an oral hearing.

Penalties

If it is found that improper conduct has occurred, a sanction can be imposed on the landlord. This can be one or more of the following:

• a direction to pay the RTB a sum not exceeding €15,000 by way of financial penalty for the improper conduct;

• a direction to pay the RTB a sum not exceeding €15,000 towards the costs of the investigation; and/or

• a caution to the landlord.

A written record of the decision and sanction along with the reasons for the imposition of a sanction will be given to the landlord. The sanction must then be confirmed by the Circuit Court. The landlord also has a right of appeal to the Circuit Court against the sanction.

Parallel criminal proceedings

If a landlord has been sanctioned for improper conduct and that conduct is an offence under the 2004 Act (eg a failure to comply with the rent setting and review provisions in an RPZ), the landlord is not liable to criminal proceedings in respect of the same conduct. If criminal proceedings have already commenced, a sanction may not be imposed in respect of the conduct concerned.

Comment

These new powers of investigation and sanction for the RTB are intended to promote and support greater compliance by landlords with the range of measures taken by the government since 2016 to improve the residential rental sector for tenants. In its designation of what constitutes improper conduct by a landlord, the 2019 Act emphasises what the government considers critically important to the improvement of the sector for tenants: (i) the effectiveness of rent controls in rent pressure zones; (ii) increased transparency with proper and up to date registration of information; (iii) an end to invalid termination of tenancies; and (iv) due recognition of a tenant’s right to be offered back the dwelling where that right arises under the legislation. It remains to be seen how the RTB will exercise its new powers but the level of sanction is such that we expect all landlords to feel an increased pressure to comply.