Eviction ban is likely to survive court challenge

Posted on: 20 October 2022

The Covid-19 moratorium sets a precedent and should guide the implementation of the new ban, writes Rachel Walsh, Associate Professor, School of Law, in a piece originally published in The Irish Times.

The Cabinet yesterday approved a moratorium on evictions until April 2023. Technically, it will be a moratorium on the service of notices to terminate residential tenancies, to be implemented through the (as yet unpublished) Residential Tenancies (Deferment of Termination Dates of Certain Tenancies) Bill 2022.

The move sparked controversy among landlords, who are reported to be planning a constitutional challenge to the measure. The Tánaiste and Fine Gael leader Leo Varadkar has expressed the view that any such challenge would be likely to fail.

The Constitution protects property rights against “unjust attack”. At the same time, it expressly provides that the exercise of property rights should be ‘regulated by the principles of social justice’. Accordingly, the State can control how property is used, including for profit, to secure the common good.

That is why, for example, property development can be extensively restricted through planning regulation. From an eviction perspective, it means that the State can limit the rights of owners who choose to rent their properties for profit, in order to meet social objectives like preventing homelessness.

The courts have usually interpreted the property rights guarantees in the Constitution in a way that gives significant leeway to the executive and the legislature to determine how best to achieve the common good, provided that fair procedures are ensured and that the impact on property rights is proportionate.

Where measures are challenged, courts analyse whether the means adopted are appropriate, both in terms of their structure and their impact, given the importance of the collective goal being pursued.

A time-limited moratorium on the service of notices of termination linked to pressing housing needs and the current cost of living crisis would stand a strong chance of passing these tests. It would impose a temporary control on how property can be used, as well as a temporary restriction on the sale or transfer of properties that are rented.

The clear evidence during the Covid-19 crisis was that the eviction ban, coupled with active use of vacant properties and hotels, significantly reduced homelessness. This suggests the State could substantiate its claim that a freeze on evictions is required.

In addition, exceptions will be incorporated into the legislation. These would allow landlords to remove tenants who use a rental property for purposes other than those intended in a lease, who damage a property, or who engage in antisocial behaviour.

What is slightly unclear is whether non-payment of rent due to inability to pay will be a ground for eviction during the moratorium period. The press release issued from the Department of Housing on Tuesday referred to ‘wilful withholding’ of rent as a permitted ground for eviction.

How could tenants who can pay be distinguished from those who won’t pay if the Government wants to protect tenants who cannot afford their rent over the winter period? Some guidance may be found on this issue from the approach to tenant protection adopted during the Covid-19 crisis.

In August 2020, following a blanket moratorium on evictions that was imposed for public health reasons during the ‘first wave’ of the Covid pandemic, legislation was introduced to support tenants who were experiencing Covid-related financial hardship. Tenants had to declare to the Residential Tenancies Board that they were at risk of eviction due to inability to pay rent.

In addition, they were required to show that they were in receipt of the temporary wage subsidy or other Covid-19 payment. They were required to engage with arrears management support services, and with the landlord to establish a payment plan. Landlords could equally notify the Residential Tenancies Board of hardship, for example their inability to pay a mortgage on a rental property.

This scheme was complex, raising challenging questions for the Residential Tenancies Board, including how to deal with tenancies where both tenants and landlords raised persuasive hardship claims. However, it represented an important attempt to balance landlords’ rights and tenants’ rights in a manner that could justify protections against eviction for non-payment of rent by targeting those at tenants in need.

Crucially, it also sought to proactively prevent the build-up of rent arrears, thereby guarding against a glut of evictions for non-payment of rent at the end of a moratorium.

Legitimate debate will likely continue in the coming weeks on the impact of an eviction ban on the availability of rental properties, and on its effectiveness as an emergency housing response. For example, tenants may still leave properties on foot of an informal indication by a landlord that service of a notice of termination is intended.

But the Constitution should not pose a barrier to the short-term measures agreed by Government yesterday. The pandemic legislation, while by no means perfect, offers a place to start in crafting exceptions to an eviction ban, and in thinking about how to balance the rights of landlords and tenants in the context of an ongoing housing crisis.

This article was originally published in The Irish Times on Oct 19, 2022.