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27 2004

Residential Tenancies Act 2004

PART 6

Dispute Resolution

Chapter 1

Referral of matters to Board for resolution

Interpretation (Part 6).

75. —(1) References in this Part to the referral of a matter to the Board for resolution are references to the referral of the matter for the purposes of mediation, a determination by an adjudicator or a determination by the Tribunal under this Part (or more than one of those things) being carried out or made in relation to it.

(2) References in this Part to a dispute include references to a disagreement and, unless the context does not admit of such a construction, a complaint mentioned in section 56 (2), 76(4), 77 or 195(4) or paragraph 8(2) of the Schedule to this Act.

(3) For the purposes of subsection (2) “disagreement” shall be deemed to include—

(a) any issue arising between the parties with regard to the compliance by either with his or her obligations as landlord or tenant under the tenancy,

(b) any matter with regard to the legal relations between the parties that either or both of them requires to be determined (for example, whether the tenancy has been validly terminated),

and, without prejudice to the generality of the foregoing, shall be deemed to include a claim by the landlord for arrears of rent to which the tenant has not indicated he or she disputes the landlord's entitlement but which it is alleged the tenant has failed to pay.

(4) References in this Part to a party, without qualification, are references to—

(a) a party to the dispute or disagreement concerned,

(b) in the case of proceedings referred to in section 23 to recover rent or other charges where the landlord or the person alleged to owe the rent or other charges is deceased, the personal representative of the landlord or that other person,

(c) the personal representative of the landlord or the tenant in any other case where, if the matter were a cause of action (within the meaning of the Civil Liability Act 1961 ), it would have survived for the benefit of, or against, the estate of the landlord or the tenant,

(d) in the case of a complaint mentioned in section 76 (4), the licensee and the landlord, and

(e) in the case of a complaint mentioned in section 77

(i) the complainant, and

(ii) the landlord of the dwelling concerned.

Right of referral by parties to tenancy and certain other persons.

76. —(1) Either or both of the parties to an existing or terminated tenancy of a dwelling may, individually or jointly, as appropriate, refer to the Board for resolution any matter relating to the tenancy in respect of which there is a dispute between them.

(2) In the case of a tenancy that has been terminated a dispute as to the amount of any rent that had been agreed to or paid by the former tenant may not be referred by him or her to the Board for resolution at any time after the period of 28 days from the termination of the tenancy.

(3) The landlord may refer to the Board for resolution any matter relating to a dwelling in respect of which there is a dispute between the landlord and another, not being the tenant but through whom the other person claims any right or entitlement.

(4) A licensee referred to in section 50 (7) may refer to the Board for resolution a complaint by him or her that the landlord referred to in that provision has unreasonably refused to accede to a request of the licensee made under that provision.

Right of referral in respect of breach of duty under section 15 .

77. —(1) A person referred to in section 15 may, if the conditions specified in subsection (2) are satisfied, refer to the Board for resolution a complaint by him or her that the landlord of a dwelling has breached the duty owed to him or her under that section.

(2) The conditions mentioned in subsection (1) are—

(a) the referrer of the complaint is or was directly and adversely affected by the breach of duty alleged in the complaint, and

(b) before making the reference, the referrer, by communicating or attempting to communicate, with the relevant parties or former parties to the tenancy concerned, took all reasonable steps to resolve the matter (but this requirement shall not be read as requiring the institution of legal proceedings or those parties being given to understand that such proceedings might be instituted).

(3) For the purposes of facilitating the person's compliance with subsection (2)(b), the Board may furnish to a person who proposes to make a reference under this section the name and address of the landlord or his or her authorised agent (or the former landlord or his or her authorised agent) of the dwelling concerned if it appears to the Board that the first-mentioned person is a person who may make a reference under this section in relation to the matter concerned.

Particular matters that may be referred (non-exhaustive list).

78. —(1) Without prejudice to the generality of sections 76 and 77, the matters in respect of which disputes and, where appropriate, complaints may be referred to the Board for resolution include—

(a) the retention or refund of a deposit,

(b) the amount that ought to be initially set (in compliance with section 19 ) as the amount of rent under a tenancy,

(c) the time at which a review of rent referred to in Part 3 should take place or the amount of rent that should be determined on foot of that review,

(d) an alleged failure by the tenant to comply with any of the obligations applicable to the tenant, including those contained in any lease or tenancy agreement,

(e) an alleged failure by the landlord to comply with any of the obligations applicable to the landlord, including those contained in any lease or tenancy agreement,

(f) an allegation that the landlord has sought to terminate a tenancy other than in accordance with the provisions of Part 4,

(g) an allegation that the ground stated by the landlord for the purposes of terminating a tenancy was not valid or that the notice used to terminate a tenancy did not comply with this Act,

(h) the appropriate period of notice to be given by a notice of termination in respect of a tenancy,

(i) whether a tenancy stands terminated notwithstanding the absence of the service of a notice of termination by the tenant and where the tenant has allegedly vacated the dwelling concerned,

(j) an alleged failure by the tenant or other occupant to offer up, by the specified date, vacant possession of a dwelling on foot of receipt by him or her of a notice of termination validly served by the landlord,

(k) an alleged failure by a sub-tenant to offer up, by the specified date, vacant possession of a dwelling on foot of receipt by him or her of a notice of termination validly served by a head-tenant,

(l) a claim for recovery of costs or damages or both by a landlord or tenant in respect of a failure by either to comply with his or her obligations applicable to the tenancy including those contained in any lease or tenancy agreement,

(m) a claim for costs or damages or both by a landlord or tenant for the purported termination of a tenancy otherwise than in accordance with this Act,

(n) an alleged failure by a person to comply with a determination order made by the Board,

(o) an allegation that a landlord has contravened section 14 (prohibition on penalisation of tenants),

(p) an allegation that an agreement referred to in section 35 (6) has not been complied with,

(q) a claim by a landlord for arrears of rent or other charges.

(2) For the avoidance of doubt, a dispute may, subject to the provisions of this Part, be referred by a sub-tenant to the Board for resolution with regard to a notice of termination served in respect of the head-tenancy out of which the sub-tenant's tenancy arises whether or not such a dispute is also so referred by the head-tenant.

(3) On such a reference by the sub-tenant he or she shall have standing to put in issue any matter relating to the notice of termination concerned despite the head-tenant's—

(a) not having taken any issue with the head-landlord in relation to that matter, or

(b) having made any representation to the landlord or done any act that estops him or her from taking any such issue with the head-landlord, or

(c) not putting in issue that matter in any dispute so referred by himself or herself with regard to the notice of termination.

Different matters may be the subject of a single reference.

79. —There may be included in the same reference to the Board under section 76 or 77 disputes and, where appropriate, complaints in respect of 2 or more different matters.

Time limit for referring particular type of dispute.

80. —A dispute relating to the validity of a notice of termination which has been served or purported to be served may not be referred to the Board for resolution at any time after the period of 28 days has elapsed from the date of receipt of that notice.

Tenancies and subtenancies: referral of disputes concerning their termination.

81. —(1) The purpose of this section is to—

(a) limit, in certain circumstances, the right of referral to the Board by a sub-tenant of a dispute concerning the termination of the tenancy out of which his or her sub-tenancy arises, and

(b) require the tenant of such a tenancy (in addition to employing the procedures under Chapter 4 of Part 5) to make a certain inquiry of the sub-tenant before the tenant may himself or herself refer to the Board for resolution a dispute concerning the termination of that tenancy.

(2) If a landlord, in serving a notice of termination on a tenant in respect of a tenancy, requires the tenant to terminate any sub-tenancy arising out of the tenancy, the tenant shall, if the tenant intends to refer to the Board for resolution a dispute concerning the termination of the tenancy, require the sub-tenant to inform him or her, within 10 days from receipt of the notice mentioned in subsection (3), whether or not the sub-tenant intends to refer to the Board for resolution any dispute that the sub-tenant considers thereby arises or exists in the circumstances relating to the termination of the tenancy.

(3) That requirement shall be stated in the notice of termination required by the landlord to be served by the head-tenant on the sub-tenant.

(4) If a sub-tenant does not comply with the requirement mentioned in subsection (2) within the period specified in that subsection then the sub-tenant may not refer to the Board for resolution any dispute concerning the termination of the tenancy concerned.

(5) If the tenant—

(a) does not comply with the second-mentioned requirement in subsection (2), then the tenant may not refer to the Board for resolution any dispute concerning the termination of the tenancy concerned, or

(b) does comply with that requirement, the tenant may not refer to the Board for resolution such a dispute until 15 days elapse from the date of service of the notice concerned mentioned in subsection (3).

Withdrawal of matter referred to Board.

82. —(1) A party who has referred under this Part any matter to the Board may, at any stage, withdraw the matter.

(2) Subject to subsection (3), a party shall indicate his or her wish to withdraw such a matter by serving a notice in writing on the Board to that effect.

(3) If the matter is being dealt with by a mediator, an adjudicator or the Tribunal, it suffices for the party to indicate, orally to him or her or it, that the party is withdrawing the matter.

(4) Without prejudice to subsection (5), on oral or written notice, as appropriate, being given in respect of the withdrawal, the Board, the mediator, the adjudicator or the Tribunal shall consider the matter concerned withdrawn and, accordingly, shall not deal with it any further.

(5) On such notice being given to it or him or her, the Board, the mediator, the adjudicator or the Tribunal shall ascertain whether the other party to the dispute concerned objects to the withdrawal and, if he or she does so, the Board, mediator, adjudicator or Tribunal may direct that the party withdrawing the matter shall pay to the other party such costs and expenses incurred by that other party as it or he or she determines.

Board not to deal with reference if fee not paid or tenancy not registered.

83. —(1) Subject to subsection (3), the Board shall not—

(a) deal initially with a dispute referred to it under this Part, or

(b) allow any other procedure under this Part to be followed in relation to a dispute referred to it under this Part,

if the fee of the specified amount prescribed by rules under section 109 in relation to that initial dealing or the following of that procedure has not been paid to it.

(2) Subject to subsection (3), the Board shall not deal with a dispute in relation to a tenancy referred to it under this Part by the landlord of the dwelling concerned if the tenancy is not registered under Part 7.

(3) The Board may, in the case of a default in payment of a particular fee or registration under Part 7 of a particular tenancy, notify the person or persons concerned of the default and afford the person or persons concerned a reasonable opportunity to rectify the matter; if the matter is rectified within a reasonable time the Board shall, subject to this Part, deal with the dispute or permit the other procedure to be followed in relation to it, as the case may be.

Further right of Board not to deal with certain references.

84. —(1) If the Board is of opinion that, in relation to a dispute referred to the Board—

(a) the dwelling, the subject of the dispute, is not a dwelling to which this Act applies,

(b) for any other reason, the dispute does not come within the Board's jurisdiction (including by reason of a failure to comply with any condition for its being referred to the Board),

(c) proceedings in any court in respect of the subject matter of the dispute, would, were they to be capable of being instituted at the date of the reference, be statute-barred, or

(d) the matter or matters concerned are trivial or vexatious,

then the Board shall serve a notice on the party who referred the matter to it stating that it is of that opinion and, unless the party establishes, in accordance with the following subsections, that the opinion is not well founded, that it will not (subject to subsection (6)) deal with the matter.

(2) For the purposes of subsection (1), the notice referred to in that subsection shall state that the party concerned may, within a period specified in the notice, make submissions to the Board as to why the party considers the opinion of the Board is not well founded.

(3) The Board shall consider any submissions made to it by that party within the period specified in the notice concerned.

(4) Unless the Board decides that any such submissions establish that the opinion of the Board referred to in subsection (1) was not well founded, the Board shall not, subject to subsection (6), deal with the dispute referred to it; the other party or parties to the dispute shall be notified in writing of a decision made by the Board that that opinion was not well founded and shall be furnished by the Board, on request, with a copy of the foregoing submissions (or, if they were not written submissions, a written summary of them prepared by the Board).

(5) The party who referred the dispute concerned to the Board or, as the case may be, any other party to the dispute may appeal to the Circuit Court against a decision of the Board (made in consequence of the procedures under this section having been employed) not to deal with or, as appropriate, to deal with the dispute.

(6) On the hearing of such an appeal the Circuit Court may, as it thinks fit, allow the appeal and direct the Board to deal with or, as appropriate, not to deal with the dispute concerned or dismiss the appeal; an appeal under this section shall be heard by the judge of the Circuit Court for the circuit in which the tenancy or dwelling is or was situated.

(7) For the purpose of subsection (1)(c), proceedings are statute-barred if a defence under the Statute of Limitations 1957 or any other limitation enactment is available in relation to them.

Right of Tribunal or adjudicator not to deal with reference.

85. —(1) The Tribunal or an adjudicator shall, if the Tribunal or adjudicator is of opinion that paragraph (a), (b), (c) or (d) of section 84 (1) applies to a dispute with which it or he or she is dealing, not deal any further with the dispute.

(2) Subsection (1) does not apply if—

(a) previously the Board, in consequence of the procedures under section 84 having been employed by it in relation to the dispute, decided that an opinion formed by it (being a like opinion to that subsequently formed by the Tribunal or adjudicator) in relation to the dispute was not well founded, or

(b) a decision of the Board, in consequence of those procedures having been employed by it, in relation to the dispute (being a decision of a like kind to the opinion subsequently formed by the Tribunal or adjudicator) was the subject of an appeal under section 84 (5) and the Circuit Court, on that appeal, directed the Board to deal with the dispute.

Status of certain matters pending determination of dispute.

86. —(1) Subject to subsection (2), pending the determination of a dispute that has been referred to the Board (but subject to that determination when it is made)—

(a) the rent payable under the tenancy concerned and the rent payable under any sub-tenancy arising out of it shall continue to be payable,

(b) if the dispute relates to the amount of rent payable, no increase in the amount of the rent may be made, and

(c) a termination of the tenancy concerned may not be effected.

(2) Subsection (1) does not apply if—

(a) in the case of paragraph (a) of that subsection, the parties concerned agree to payment of the rent being suspended,

(b) in the case of paragraph (b) of that subsection, the parties concerned agree to an increase in the amount of the rent being made,

(c) in the case of paragraph (c) of that subsection (unless the dispute is a dispute specified in subsection (3)), the notice of termination concerned was served—

(i) before the dispute was referred to the Board for resolution, or

(ii) after the dispute was so referred and the required period of notice to be given by the notice of termination is 28 days or less and that period of notice has been given,

or

(d) in any of the cases, the dispute is not dealt with, or ceases to be dealt with, under this Part pursuant to section 82 , 83, 84 or 85.

(3) The dispute mentioned in subsection (2)(c) is a dispute relating to the validity of the notice of termination concerned or the right of the landlord or tenant, as appropriate, to serve it.

Remedial action taken by party in certain cases to be disregarded.

87. —If a dispute referred to the Board relates to the termination of a tenancy for failure by the landlord or tenant to fulfil his or her obligations relating to the tenancy, any remedial action taken by the other party subsequent to the receipt of the notice of termination shall not be taken into consideration by the Board, a mediator, an adjudicator or the Tribunal in dealing with the dispute.

Extension of time for referring disputes to Board.

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.

(2) The Board shall not extend the time concerned unless the applicant for the extension shows good grounds for why the time should be extended.

(3) The reference in this section to the time limited by any provision of this or any other Part for the referral of a dispute to the Board for resolution includes a reference to the time limited by such a provision for fulfilling any condition precedent that is required by the provision to be fulfilled before a particular dispute may be referred to the Board for resolution.

(4) An appeal shall lie to the Circuit Court (by the applicant for the extension or, as the case may be, any other party to the dispute concerned) against a decision of the Board under this section to, as appropriate—

(a) refuse to extend the time concerned, or

(b) extend the time concerned,

and, on the hearing of such an appeal, the Circuit Court may, as it thinks fit, confirm, vary or cancel the decision of the Board.

(5) An appeal under this section shall be heard by the judge of the Circuit Court for the circuit in which the tenancy or dwelling concerned is or was situated.