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Latest RTB Tribunal reports
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02-10-2017 10:16pm#1Reports 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.19
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