The government is coming under pressure to close an apparent legal loophole after a co-living developer contested that residents in its controversial new developments have no protection under tenancy laws.
Bartra Capital, the firm behind a 208-bedspace co-living scheme approved in Dún Laoghaire, has sent a legal memo to Dublin City Council and An Bord Pleanála claiming its shared living developments cannot be regulated under tenancy and housing laws.
The company has secured legal advice, seen by The Sunday Business Post, which argues that the protections of the Residential Tenancies Act do not apply to shared living residents. This would mean co-living tenants would not be protected against rent hikes above limits set by the state.
Fianna Fáil has called on Eoghan Murphy, the housing minister, to clarify whether Bartra’s legal advice is accurate and to urgently address the issue.
Daragh O’Brien said he plans to propose amendments to the Residential Tenancies (Amendment) Act when the Dáil resumes next month to ensure shared or co-living residents would be covered by tenancy laws.
During the summer, amendments were made to extend aspects of the Residential Tenancies Acts to student accommodation, including rental caps. O’Brien is calling for similar action to be taken to protect co-living residents.
Last week, nine Green Party councillors, including Hazel Chu and Patrick Costello, also filed an emergency motion with Dublin City Council to address moves by Bartra to “sidestep tenancy rights” and called on the government to take action.
Bartra’s legal opinion, prepared for the Richard Barrett-controlled company by senior counsel, has stated outright that rental and tenancy regulations are not applicable to communal living because occupants’ bedspaces are not self-contained residential units.
“I understand Bartra intends to introduce an entirely new concept of ‘shared living’, not hitherto seen in this jurisdiction, whereby occupiers will be entitled to live in the entire property and have use of all shared facilities, based upon Club membership,” the legal opinion states.
It added: “If a property is not let for rent but is held under some other basis, it does not come within the definition of a dwelling for the purposes of the [Residential Tenancies Act 2004].”
A spokesman for Bartra told this newspaper it plans to put in place ‘licencing/club arrangements’ with occupants. But the legal advice states that referring to the parties as a “licensor” and “licensee” does not constitute such an agreement to be a licence.
Bartra said the properties would be run on a “hotel-like basis” and the “spirit of the approach” would be similar to house sharing where “behaviour of all is regulated by a set of written or unwritten house rules that are to the benefit of all”.
Bartra also said it does not expect security of tenure for the residents to arise as an issue because most occupants would voluntarily move on within a one-year period.
Patricia Sheehy-Skeffington, a barrister specialising in housing law and a former Residential Tenancy Board member, told this newspaper that there were questions over whether co-living falls in or outside of residential tenancies and housing regulations.
She added: “Those same questions could arguably also arise in terms of any situation in which a landlord rents out a room one by one. Co-living, to me, sounds just like a much bigger version of a shared house.”
A spokesman for the Department of Housing told The Sunday Business Post that each shared living arrangement would need to be examined on a case-by-case basis to determine if occupants are protected under the Residential Tenancies Act. The department did not comment on the particulars of the legal opinion prepared for Bartra.
A spokeswoman for the Residential Tenancy Board (RTB) said: “Without sight of a tenancy/lease agreement or an understanding of how the arrangements operate in practice you cannot determine if a tenancy exists within the meaning of the Act.”
Bartra has filed plans to develop over 500 shared living bedspaces across the capital to date. Last month, it got permission from An Bord Pleanála to develop its first 200 bedspace ‘Niche Living’ scheme in Dún Laoghaire.
The legal opinion was included in Bartra’s application to develop another 102-bed shared living scheme in Rathmines.
Sinn Féin housing spokesperson Eoin Ó Broin said the legal opinion has shown Bartra’s plans to “build a case to deny tenants the basic protections”.
Fianna Fáil’s O’Brien, who previously called for co-living schemes to be banned, said the concept of occupants signing up to a club arrangement was “mind-boggling . . . I will bring forward amendments to the Residential Tenancies (Amendment) Act to make sure people who have to live in these types of arrangements still get protection”.