Deposit & BER

odds_on

The whole issue of a lease being invalid if no BER cert was provided before the contract agreement stems from a Law Society document to solicitors etc. regarding BER certs.

My understanding was the Law Society was advising its members as to the legal requirements in the housing market if no BER Cert was provided in the case of a house purchase. Thus, a solicitor will not allow a sale to proceed without a valid BER cert being produced (and this can delay the signing of contracts).

As regards the rental market, The Law Society stated the in the opinion of the committee set up to advise on the situation that a rental lease contract MAY be invalid if no BER cert was presented.

However, as several posters have already stated, there has been no court case to set a precedence.

djimi

D3PO wrote: »

Yes the lease was broken amicably and the OP should have been thankful for that. Instead they are trying to find some loophole to screw the landlord for the deposit back which they have no right to get returned (unless the LL relet within the month at which point they may have an argument for part of it back)

To me that's dodgy, underhand, and scummy.

They asked a question and got their answer. If their friend had been right and not having a valid BER cert did actually mean an invalid lease and their right to get their deposit back, would you still feel the same way? If the friend had told them about reassignment instead would you still say they were acting in a scummy and underhanded way coming on here seeking to clarify it?

odds_on

djimi wrote: »

.............
I dont think that only landlords should know the law; personally I feel that any tenant who doesnt take an hour to go online and read about their rights and obligations is an absolute fool who is leaving themselves wide open to be taken for a ride. But I feel that anyone who is running any kind of business, landlords included, have a responsibility and a duty to their customers to know the laws surrounding their business and to follow them fully. Ignorance of these laws is not an excuse.

Many tenants do go online and read from both the Threshold and Citizens Information sites.

Unfortunately, between not reading the full article and slightly incomplete information by said web pages, they come away with the wrong end of the stick.

Many have come on here "quoting" what they read, but the article failed to mention that there can differences between a Fixed Term lease and a Part 4 requirements, which the advising sites have failed to make clear.

One common theme is that a tenant can give the required notice and vacate - correct if it's a Part 4 tenancy, but not a fixed term tenancy.

Again, when trying to purchase an apartment last yea, I enquired of the Estate agent what type of lease the tenant had, as I would be ready to move in on completion. The answer was that it was a fixed term until a particular date but that they would be able to evict the tenant on the grounds that the landlord was selling the property. I replied that that only applies to a Part 4 tenancy, and no matter how much I tried to convince then, I was talking to a brick wall. They even produced a leaflet from one of the two mentioned sources which stated the grounds but not that it was only applicable to a Part 4 tenancy.

Needless to say, I went no further with that agent, who should have know the law.

beauf

hildabergman wrote: »

....This means there was no BER when we signed the lease. A friend of mine thinks this makes our lease invalid and that we should receive our deposit back. Can anyone shed any light on the subject for us?

Simply put it. It never been tried. It would most likely end up going to the PRTB (or further) to be settled. As a tenant you've nothing to lose by going that route.

beauf

Its interesting that there's so little interest in BER certs, a lot of interest seems to be around making leases invalid.

My own opinion is that BER system is so flawed, and so poorly understood, its mostly just another stealth tax on the LL, which in turn will push up rents. There is a cost to the LL to switching tenants. Registration, cleaning, advertising, vetting tenants etc. Costs of course have to paid out of income. Which is rent.

D3PO

djimi wrote: »

They asked a question and got their answer. If their friend had been right and not having a valid BER cert did actually mean an invalid lease and their right to get their deposit back, would you still feel the same way? If the friend had told them about reassignment instead would you still say they were acting in a scummy and underhanded way coming on here seeking to clarify it?

That's a lot of if's, it would still be morally wrong in that event IMO but that's a whole different discussion.

witchgirl26

D3PO wrote: »

That's a lot of if's, it would still be morally wrong in that event IMO but that's a whole different discussion.

I'm curious to know why you think it would morally wrong if the tenant had been in the right to get their deposit back? Or is it the reassignment part?

D3PO

beauf wrote: »

Simply put it. It never been tried. It would most likely end up going to the PRTB (or further) to be settled. As a tenant you've nothing to lose by going that route.

The PRTB at a tribunal aren't in a position to challenge the legality of a lease on the grounds of the BER. This is something that would require a legal challenge.

I'm sure they would take the case and make a determination though, however it wouldn't be worth the paper it was written on and wouldn't set legal precedence nor would any LL who understands the situation do anything but ignore the PRTB determination and wait for an attempt for legal enforcement of the determination.

Of course somebody on here said the PRTB have judged this to be an invalid lease in the past but then conveniently when twice asked for tribunal numbers disappeared.

djimi

D3PO wrote: »

That's a lot of if's, it would still be morally wrong in that event IMO but that's a whole different discussion.

How can something that is legally right be morally wrong?

And its not a different discussion; in either case the OP would not have known the answer; the only difference is that in this case they asked about something that wasnt correct, whereas had they asked about reassignment for example they would have been right.

D3PO

witchgirl26 wrote: »

I'm curious to know why you think it would morally wrong if the tenant had been in the right to get their deposit back? Or is it the reassignment part?

Not sure I understand what your referring to regarding re assignement and don't want to go down the road of a moral discussion. Its pretty clear the LL has been reasonable here, its also pretty clear that given the circumstance the OP should be happy to have been released from their lease with no penalty other than forfeiture of the deposit, when the LL could have insisted they stay or reassign.

There is a thing called reasonable behavior and trying to exploit a loophole if it existed (which I think we are all in agreement doesn't or certainly if it does has never been proved to thus far) is morally bankrupt.

People fail to look outside isolated incidents. This kind of behavior has a potential knock on impact to other tenants, it has the ability to cause resentment and bitterness in landlords and turn a willing helpful obliging landlord into one that does the bare minimum to act legally.

If its good enough for the tenant to exploit a legal position then they cant complain when a landlord does the same. Its a negatively perpetuating circumstance that ultimately leads to a degradation in the quality of rental accommodation on the market.

It cannot be seen as a good thing.

D3PO

djimi wrote: »

How can something that is legally right be morally wrong?

Exactly the same way the cleaning discussion yesterday would be should it be allowed that anybody can write up a random invoice and for it to be accepted.

Potentially as suggested yesterday it could have legal basis in an PRTB dispute but again would you not see that (and im referring to in general not that case) as a morally wrong situation whereby a LL would essentially have carte blanche to screw a tenant for any random number they like.

djimi

D3PO wrote: »

Exactly the same way the cleaning discussion yesterday would be should it be allowed that anybody can write up a random invoice and for it to be accepted.

Potentially as suggested yesterday it could have legal basis in an PRTB dispute but again would you not see that (and im referring to in general not that case) as a morally wrong situation whereby a LL would essentially have carte blanche to screw a tenant for any random number they like.

I see where you are coming from, but ultimately you cannot say that someone who is following the law is doing something that morally wrong. In the case of the cleaning invoice yesterday, the actual amount would could be challenged either way, and even if the landlord had come out with a legitimate invoice form a cleaning company for €400 cleaning I would expect it to be disputed as being insanely high. But thats a seperate matter; if the law allowed for a landlord to bill for their own time then you cant really say that its morally wrong for them to do so.

In this case there is nothing morally wrong about using a legal clause to break a lease.

D3PO

djimi wrote: »

I see where you are coming from, but ultimately you cannot say that someone who is following the law is doing something that morally wrong. .

See this is why I didn't want to get into a morals discussion :pac:

Definition ;)

Moral - founded on the fundamental principles of right conduct rather than on legalities, enactment, or custom: moral obligations.

witchgirl26

D3PO wrote: »

Not sure I understand what your referring to regarding re assignement and don't want to go down the road of a moral discussion. Its pretty clear the LL has been reasonable here, its also pretty clear that given the circumstance the OP should be happy to have been released from their lease with no penalty other than forfeiture of the deposit, when the LL could have insisted they stay or reassign.

The reassignment bit was the 2nd part of the other question - if the person had come on asking about reassignment instead. Doesn't seem to be what you were referring to so doesn't really matter.

D3PO wrote: »

There is a thing called reasonable behavior and trying to exploit a loophole if it existed (which I think we are all in agreement doesn't or certainly if it does has never been proved to thus far) is morally bankrupt.

People fail to look outside isolated incidents. This kind of behavior has a potential knock on impact to other tenants, it has the ability to cause resentment and bitterness in landlords and turn a willing helpful obliging landlord into one that does the bare minimum to act legally.

If its good enough for the tenant to exploit a legal position then they cant complain when a landlord does the same. Its a negatively perpetuating circumstance that ultimately leads to a degradation in the quality of rental accommodation on the market.

It cannot be seen as a good thing.

I do understand where you're coming from to an extent however you were talking before about how the tenant has to recognise their legal responsibilities in relation to the lease, then surely the landlord would have to do the same. If landlords were continuously not providing BER certs (and it was the case that they had to etc) then surely the tenant would be right in pursuing that & making sure the landlord followed their legal obligations too.

Ok get it that in the case of the OP, it may be a bit bad considering the landlord has agreed to let them out of the lease early but they would legally have the right to do it. I wouldn't agree it's morally bankrupt, questionable maybe but not bankrupt. And if the money was a massive thing to the tenants involved then could see their point in trying to get some of it back.

I think that yes you would have some landlords burned by it & only doing the bare minimum however surely it would make others aware they can't get away with not doing something their required to.

djimi

D3PO wrote: »

See this is why I didn't want to get into a morals discussion :pac:

Definition ;)

Moral - founded on the fundamental principles of right conduct rather than on legalities, enactment, or custom: moral obligations.

Its a fair point. For the most part I tend to see things as being a bit black and white (for the most part for me if its legal then morality doesnt really come into it), but I do understand that not everyone sees it the same way!

beauf

djimi wrote: »

How can something that is legally right be morally wrong?....

I don't it think that applies here.

But its quite possible for a law to be immoral depending on your viewpoint of morality. There's been some recent high profile cases, like abortion, tax avoidance, corporation and high profile personalities. Even more so if you consider examples from history or unjust regimes.

But in this case, I don't see any morality issue here. The lack of a Ber as means of invalidating an agreement, is a technicality untested in law. Forfeit of deposit, is pretty clear cut. Theres no morality involved.

Does anyone know the situation re servicing gas boilers in rented accommodation, Is it a law that the boiler (4 years old installed and supplied by board gais) has to be serviced on a yearly basis for 120euro a go. The house is fitted with 2 smoke alarms and has 2 carbon minoxide detectors operating perfectly. Any discussion on this is greatly received as I feel it may be a money racket but just wondering.

beauf

I think you need to create a new thread as its got nothing to do with this issue. However you are required to have it in "good working order". If there was a problem and someone was killed I think you'd find not having it serviced regularly would go against you. Apart from the danger to others which is obvious in itself.