Winter eviction ‘ban’ does little more than buy the government time
Posted on: 24 October 2022
The problem with the rental market is not over-regulation but bad regulation, poorly enforced, explains Dr Sarah Hamill, School of Law, in this comment piece originally published in The Sunday Business Post.
In chess, the term zugzwang refers to a situation where it is your turn to move, but any move will make your position worse. Such is the situation the government claimed to be in last week with respect to the housing crisis.
Faced with increasing pressure on emergency accommodation, a shortage of rental properties, decreasing numbers of small landlords, and allegations that any further tenant protections would be unconstitutional, it was unclear what the government could do to alleviate the situation.
After much speculation it made its move, introducing a temporary eviction ‘ban’ due to run from November to the end of March. While the exact details will be worked out when the bill is brought before the Oireachtas, a few features are already clear.
For one, this is not an eviction ban. As the government press release makes clear, the proposals are only for a ban on “no-fault” evictions. Tenants who refuse to pay rent or who fail to abide by their lease obligations can continue to be evicted.
As a legal response to the housing crisis, this proposed temporary ban is the most modest of measures. Given its time-limited nature, the fact that it is not a complete ban on evictions and the pressing social need, it is highly likely that the ban would survive any challenge to its constitutionality.
In fact, it is likely that with a few modifications, further and more permanent restrictions on no-fault evictions could pass constitutional muster. For example, Ireland could follow Scotland’s lead and only allow landlords to recover possession of a property if they or their spouse need to live in it. At present, landlords in Ireland can recover possession for their own residential use and for the residential use of a family member.
Ireland could also consider restricting access to the no-fault grounds of eviction where a landlord has multiple properties. The current legislation on residential tenancies already recognises some differences between large-scale and small-scale landlords, and there is scope to extend these.
However, the likely constitutionality of any further tenant protections is only one aspect of the temporary eviction ban. The bigger and more pressing question is whether it will help with the current crisis, or whether it will make it worse.
The proposed ban does nothing to increase the provision of housing, to improve the quality of rental housing, or to reduce rents. At best it might limit the loss of rental housing, but again that limitation may only be temporary.
To put it bluntly, the proposed temporary ban on evictions protects – and only on a temporary basis – those who already have a tenancy, but does nothing for those who are trying to secure one.
With the ongoing cost of living crisis, the proposals are not clear on how, or even if, they will protect tenants who struggle to pay rent. The wilful withholding of rent will not be protected, but whether and how financially vulnerable tenants will be protected remains to be seen.
Doubtless, some landlords will be frustrated by any temporary eviction ban. This is particularly true among small-scale landlords with only one or two properties. The allegation that the private rental sector is over-regulated is, however, unfair.
Secure and adequate housing plays a vital role in an individual’s mental and physical wellbeing and, as such, housing should be strictly regulated. Landlords are service providers and should be regulated as such. The problem is not so much over-regulation as bad regulation and poor enforcement, and the remedies for those issues lie with the government.
To be clear, any landlord will still be able to sell their property if this ban is enacted. However, any landlord seeking to sell during the ban may not get the full market value of their property. Similarly, anyone seeking to purchase property for owner-occupation may have a reduced choice while an eviction ban is in force, as they will likely not want to buy a property with sitting tenants.
Tenants who can continue to pay their rent and who abide by the terms of their lease will, no doubt, welcome the peace of mind this temporary ban brings. For those who are already struggling with their housing costs, whether rent or utilities, this temporary ban on no-fault eviction offers little comfort or clarity.
However, it will, if enacted, buy the government some time to develop and introduce new measures to address the housing crisis. It should use it wisely.
Sarah Hamill is an assistant professor at the School of Law in Trinity College Dublin