1. The Right of Third Party Complainants
Under the Residential Tenancies Act 2004 a third party (for example a neighbour) can refer a dispute to the PRTB against a tenant’s landlord. In cases where it can be shown that the landlord failed to act to prevent the tenant causing the nuisance to the third party, the PRTB may award damages against the landlord to the third party.
2. A Third Party’s Obligations – What Landlords Need To Know
It is a requirement of Section 77(2) of the Residential Tenancies Act 2004 that before referring a dispute against a landlord to the PRTB, a third party must take all reasonable steps to resolve the matter by communicating, or attempting to communicate, with the relevant parties to the tenancy.
We find that third parties will often claim they could not comply with this pre-condition as they did not have the landlord’s contact details. This does not relieve a third party of their obligations and Section 77(3) specifically allows the PRTB to furnish a third party with a landlord’s name and address so the third party can comply with this requirement.
Section 77 is clear as to the mandatory steps that must be taken before a dispute can be referred. Therefore, if a neighbour refers a dispute against you as a landlord without having first contacted you, you should immediately write to the PRTB stating that the third party is precluded from referring the dispute to the PRTB and that they have no jurisdiction to hear the matter due to the third party’s failure to comply with this mandatory requirement.
3. The Steps Landlords Should Take on Receipt of a Third Party Complaint
The first thing a landlord needs to be aware of is that the threshold the PRTB require to be satisfied by landlords in anti-social behaviour cases is very high. A successful anti-social behaviour claim will usually (but not always) require some form of Gardai involvement. As a result if a landlord attempts to terminate a tenancy on foot of a neighbour’s assertion of anti-social behaviour without third party independent evidence, then the landlord may be exposed to a claim by the tenants for damages.
Therefore it is crucial that landlords cover themselves! In the event that the third party refers the matter to the PRTB down the road, you must be in a position to show that the third party failed to provide clear and certain evidence of anti-social behaviour and that you could not take any further steps to have your tenant removed from the property without just cause.
Accordingly when you are made aware of your neighbour’s complaint you should investigate the matter yourself and decide whether there is sufficient evidence to justify the claim. It is also important to be able to show that you investigated the neighbour’s claim. If necessary serve awarning notice on your tenants outlining your neighbour’s complaint and advising them of their obligation not to engage in anti-social behaviour. There is a template warning notice available todownload here. You should also take steps to ascertain the extent of the alleged behaviour, for example, by contacting the tenants directly and by making enquiries with other neighbours within the vicinity of the property. Document all your actions as failure you by as a landlord to act under these third party cases can go against you at the PRTB.
Most importantly you should also write to the complainant neighbour advising him that the PRTB require a high burden of proof to be satisfied and firm corroborative evidence before an Order will be made that anti-social behaviour has occurred. You should advise your neighbour that PRTB case law indicates that oral evidence of one person alone would not usually be sufficient to prove anti-social behaviour at PRTB level and that the PRTB require such an allegation to be corroborated for example by statements from the Gardai and other neighbours, video/sound recordings and photographic evidence of the alleged behaviour and that you cannot terminate the tenancy without this level of evidence substantiating his allegation. Even if such evidence is provided, you should also require your neighbour’s written agreement to give evidence at any subsequent PRTB hearing.
If your neighbour then refers the dispute to the PRTB, you will be in a strong position when arguing that you acted reasonably in the circumstances and that legally you could not have taken any further steps against your tenants in the absence of sufficient evidence of anti-social behaviour.
When defending a third party case we recommend that landlords specifically request that, in the event that the PRTB is satisfied that the tenants have engaged in anti-social behaviour and that you have failed to comply with your obligations to the third party, the PRTB make an Order expressly stating that there is sufficient evidence to ground a Notice of Termination for anti-social behaviour and directing you to serve such a Notice of Termination on your tenants and stating the period of notice to be given. It is essential that landlords seek this Order so as to protect themselves against a claim for damages by the tenants for unlawful termination.
Property Rock 