THE RENTAL REGULATOR has issued a statement looking to clarify what should happen when people move into an already existing house-share under the government’s new rental rules.

It has maintained that a new tenant joins an “existing tenancy”, including under older rental legislation, and that a new tenancy “can only begin” in an apartment or house once all tenants under the old lease have left.

The clarification comes after a number of TDs, tenants and landlords publicly expressed concern over any potential impact the legislation would have if one tenant leaves a house-share, and what laws their replacement or any remaining tenants would fall under.

This is because, TDs and tenants told us, existing tenants may have to either pay more to make up for the vacant bed, or enter into a new lease that locks them into potentially significant rent increases down the line. Affected renters have said their other option is to leave the tenancy.

As reported by The Journal over the past week, multiple tenants are contending that their landlord, property firm Ires Reit, has changed its approach to swapping out tenants, following the nationwide change to rent rules that came into effect at the start of March.

Ires Reit – the country’s largest landlord with over 3,500 apartments – has maintained that it is operating within the regulations.

The firm no longer permits the “addition of new tenants to existing leases”, nor subletting in its apartments, a spokesperson said.

“Any new tenancies reflect the new regulations as required and set out in legislation,” the spokesperson added.

However, in a statement to The Journal, the Residential Tenancies Board (RTB) outlined its position on the issue.

“Where one tenant leaves and is replaced by another tenant, the new tenant joins the existing tenancy,” the spokesperson for the RTB said.

The regulator added that a “new tenancy can only begin in the dwelling once all tenants that were party to the existing tenancy” have left.

The new rules mean that a landlord can “only grant one lease or tenancy over a self-contained dwelling at one time”, indicating that all tenants should be on the same contract and conditions.

This indicates that there should only ever be one lease with multiple tenants on that lease, rather than multiple leases for multiple tenants.

However, regarding replacement of tenants, the RTB noted that lease agreements may differ. This means they may still “need to be assessed on a case-by-case basis to determine if the actions of a landlord are legally permissible if a replacement tenant is refused”.

The issue arose after several residents of Ires Reit buildings in Lansdowne Gate in Drimnagh and the Marker in Grand Canal who have been living there for several years said they were no longer able to swap out departing flatmates and move someone else into the empty rooms.

The residents had been able to do so before, on the same lease agreements they have now, they said.

It’s widely considered by a number of sector sources that guarantees on what the legislation means in practice for flatmate swaps may still need to be decided by the RTB if a complaint is made to the regulator, and it goes to a formal adjudication.

Explaining the impact of the new rules on flatmate swaps, a spokesperson for the RTB said:

“Under the Residential Tenancies Act 2004 (as amended), a landlord can only grant one lease or tenancy over a self-contained dwelling at one time.

“Until then, all tenants in the tenancy remain subject to the rules that apply based on the date that the tenancy began, rather than the date that the tenant joined the tenancy.”

Responding to the RTB’s clarification, Sinn Féin housing spokesperson Eoin Ó Broin claimed that Ires Reit was “pushing the envelope in terms of what’s allowed under the legislation” via its standoff with tenants in separate buildings in Dublin.

The Dublin Midwest TD raised concerns that the company could be “in breach of the new rules”, however, Ó Broin added that “until such a case is tested in the RTB, it’s hard to be definitive” about the legislation due to potential loopholes.

Ires statement

In a statement, a spokesperson said that was unable to comment on individual lease arrangements as they encouraged any tenants with concerns to “engage directly” with the company.

The spokesperson for Ires Reit, which is the country’s largest landlord, said its approach “reflects the legal framework governing residential tenancies” in Ireland.

Landlord says confusion remains over rules

One Co Kildare landlord who contacted The Journal this week showed emails demonstrating he had warned the Department of Housing about potential confusion over the rules in cases where one tenant in a house-share needs to be replaced.

The landlord, who asked for anonymity, was told to get independent legal advice on his query.

The department also told the man that it could not advise him on a “hypothetical” scenario.

He told The Journal this week that he found it “strange that the department that has written this legislation is not able to interpret its meaning” for cases like his.

“I now have to go and pay for legal advice that could be contested by a court or the RTB because it is purely a legal opinion and open to multiple interpretations. I am no wiser now than when I first asked this question last December with the department,” he added.

“I don’t believe at this point I can rent out to another single person if a space becomes available because I think that could end up getting challenged in the RTB.”

Separately, The Journal reported earlier this week how landlords are using licensing agreements rather than tenancies for multi-person room shares. Those instances also create a grey area for decision makers.

Determining whether an arrangement should be a tenancy or a licence is often only possible if a formal dispute arises at the RTB or in the courts.