The Residential Tenancy Board’s (RTB) recent adjudication of the college’s overnight guest policy as “unenforceable” prompted celebration from TCD Renter’s Solidarity Network, and an appeal of the decision from the College. The group, alongside Trinity College Dublin Students’ Union (TCDSU), with then-president László Molnárfi at its helm, had advanced several arguments as to why the policy should be repealed, charging risks to student welfare and hypocrisy, among other arguments; the RTB’s decision ultimately rested on much narrower legal reasoning in light of tenancy legislation to which College as a landlord is subject.
Arguments Advanced
Former TCDSU president László Molnárfi, now an investigative reporter with Trinity News, submitted a claim in February of this year to the RTB on behalf of the TCD Renters’ Solidarity Network, seeking to find the College’s Overnight guest policy unenforceable, on the basis of three distinct arguments.
The first argument was that the policy endangered invitees of residents of the college’s student accommodation, who may find themselves in vulnerable positions late at night if they were not allowed to stay overnight. Molnárfi’s proposal squared that there was a certain duty of care on the part of the college towards these invited guests to the college residence. The RTB adjudication rejected this argument, not on the grounds of the proposal itself, but rather on a matter of scope, determining that the invitees of the residents were not a direct party to the Residential Tenancies Act 2004, and therefore could not be the grounds on which a claim of unenforceability could be raised.
The second argument raised was one of hypocrisy; a claim that it was a hypocritical stance on the part of the college that members of faculty who reside on campus were not subject to the same overnight guest policy restrictions, and that it was therefore an “unfair policy”. This argument was also dismissed by the RTB, on the grounds that there is no obligation on a landlord to provide the same terms of residency to different tenants. Indeed, they commented that if there was a complaint of the nature that the difference in policy application to faculty and to students could be discriminatory, then the RTB would also not be the appropriate medium by which to resolve this issue.
However, Molnárfi’s third argument, the argument which proved successful, was that the college’s overnight guest policy was “paternalistic and imposes an arbitrary control over the
tenants based on the values of the landlord rather than on any objective logical criterion”. This argument was fleshed out in the adjudication by the RTB with reference to the rights of tenants laid out in the Residential Tenancies Act 2004 (The 2004 Act).
Successful Argument
The argument here, as delivered by Threshold who represented Molnárfi in the proceedings, was able to ground itself legally via the Residential Tenancies (Amendment) Act 2019. This 2019 piece of legislation brought Student Specific Accommodation under the remit of the 2004 Act, which lays out, amongst other things, certain obligations and rights on the part of both landlords and tenants in a relationship of tenancy. As a result, residents of Trinity College accommodation such as those living in Trinity Halls or on campus, who are in licence agreements with the College, are able to avail of all the same protections that tenants may under the 2004 act, with the exception of the right to security of tenure, meaning that the college can arrange tenancies of fixed durations to line up with the academic year.
Since students can avail of these protections, the judgement disregards arguments made by the college suggesting that they can impose these obligations as they are primarily an educational institution, and rather focuses on the rights of the tenant here like in any other standard tenancy agreement.
Thus, Molnárfi’s third argument of paternalism could be attached to the 2004 Residential Tenancies Act, and more specifically, provision 12 (1)(a), which allows “the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling”.
This central right to peaceful and exclusive occupation of the dwelling is bolstered by other provisions in the 2004 Act, such as section 18, which states that “no provision of any lease, tenancy agreement, contract or other agreement … may operate to vary, modify or restrict in any way section 12 or 16.” Furthermore, while section 18 allows for additional obligations to be placed on the tenant in any given contract, such obligations may only be applied “if those obligations are consistent with this Act”.
Thus, the judgement outlined an inextricable right on the part of the tenant in student accommodation to the right of peaceful and exclusive occupation of their dwelling, and as such, the question became not one of whether they had a right to such peaceful and exclusive occupation, but rather one of whether the college’s overnight guest policy was objectively interfering with this right in a way that was inconsistent with the 2004 Act.
On this latter question, the judgement found that there was an objective interference with this right. Numerous aspects of the college’s overnight guest policy were listed in the judgement;
“Any visitor or guest within accommodation after the designated time will be deemed to be an overnight guest… Residents may only host one overnight guest at any time and for no longer than the number of nights stated in the Residents’ Handbook without the permission… Permission should be sought at least 5 days prior to the guest’s arrival…Any resident who hosts overnight guests with what the relevant College Officer considers to be excessive frequency may be required to obtain advance permission for each occasion that an overnight guest is to be hosted. The permission may be declined… the relevant College Officer may prohibit a resident from hosting further overnight”.
Upon stating these, it was found they were an objectively “unreasonable restriction” of the tenant’s rights to peace and exclusive occupation of their dwelling. Most specifically, there was a comment on how the obligation on the part of a tenant to disclose the identity of their invitee to the accommodation in advance may constitute a breach of privacy that was inconsistent with this right.
As such, it was found that the aspect of the licence agreement in Trinity college student accommodation contracts that refers to the overnight guest policy was unenforceable.
This judgement is currently under appeal by Trinity College, in a “bid to maintain more clarity”, as they claim the overnight guest policy is “a pragmatic policy designed primarily to protect students living on campus”, and that it “is in line with sectoral norms”.
