Notice of Termination

yankadi

Hi

I need some solid urgent advice on this one :

We moved into a house last July, it's a fixed term lease and ends this year.
Due to us asking the landlord to repair some serious issues he reacted and put the house up for sale back in April (at about 3 times the value!) We were informed of this by email.

Our lease says that the RTA 2004 applies to it. We haven't been able to find another place and need at least another month (which was turned down)

So is it the case that the email we were sent was an invalid notice ? or are we due a notice at all ?
The reason it's important is a longer story but the notice (35 days) would be a big help.

Hope all this makes sense !

sophia25

Hi Yankadi,

As you have been there more than 6 months (and provided you aren't in breach of your obligations) you are now a Part 4 Tenant which means you stay up to 4 years from start of your tenancy. The landlord can only terminate your lease now under very specific conditions. He has the right to put the property up for sale but can only ask you to move out when he has an actual contract for sale signed, just putting it on the market means nothing. He is also legally obliged to serve you valid notice of 35 Days if he does get a sale. An email does not suffice for this and notice can't be postdated so he would only be able to start the clock from when he serves the valid notice. Once you are over 1 year in the tenancy, this notice rises to 42 Days. Immediately write to him and tell him you intend on staying in the property and you are invoking your right as a Part 4 Tenant. He is trying to bully you and is not legally allowed to do this. There are standards and obligations that the landlord must comply with regard to repairs and you have the right to insist on this. Please contact Threshold on Monday from 9.30am and make an appt. to see one of their advisers. It is a totally free service and they will advocate on your behalf with your landlord if necessary or if you prefer provide you with the info. for you to do it. You have every right to stay in your home so don't worry. Best of luck!!

athtrasna

That's not applicable here, the OP has a fixed term one year contract and not a Part 4 tenancy as the above post would relate to.

http://www.daft.ie/content/residential_tenancies_act_2004.daft

yankadi

Hi Sophia
Thanks for the answer that seems to be all the things that I have read from different sites and it's nice to hear someone else say it !

Athtrasnavjust made the point about the fixed one year... that's the bit that bothers me, which is why I'm trying to get all the right information together before I write again.

The lease says it is "A Fixed Term Lease" & Residential Tenancies Act 2004 Applies to this Agreement"

Thanks

athtrasna

The RTA 2004 specifically mentions fixed term leases...and says they are not Part 4 tenancies. Your lease basically re-states that.

sophia25

You are 100% wrong. Although the article on Daft speaks about if you do not have a fixed term contract (lease), the part 4 tenancy does come into effect in a lease also. The statutory right supersedes contract law. Any landlord who signs a lease for 6 months plus is automatically signing the right of a 4 year tenure to the tenant, See this for clarification

http://www.citizensinformation.ie/en/housing/renting_a_home/types_of_tenancy.html

sophia25

Athtrasna please state where you think the RTA precludes fixed term contracts?? I can guarantee you it is not there!!

yankadi

Thanks again Sophia, this is great to hear, it's been a very stressful few months..the term bully is the only word to decribe him, he was so insensed that we asked for certain issues to be looked at such as damp, that he reacted, walked out and next morning we were "told" it was up for sale.
This was back in April!

yankadi

So we are still within our rights to claim the Part 4? (lease ends at end of this month) Do we need to do this along the same steps as notice of termination ? ie in writing etc?

athtrasna

The interesting section is here

Proposed overholding under a fixed term tenancy.

195.—(1) In this section “relevant dwelling” means a dwelling, the subject of a tenancy that is for a fixed period of at least 6 months.

(2) The tenant of a relevant dwelling, if he or she intends to remain (on whatever basis, if any, that is open to him or her to do so) in occupation of the dwelling after the expiry of the period of the tenancy concerned, shall notify the landlord of that intention.

(3) That notification shall not be made to the landlord—

(a) any later than 1 month before, nor

(b) any sooner than 3 months before,

the expiry of the period of that tenancy.

(4) If a tenant fails to comply with subsection (2) and the landlord suffers loss or damage in consequence of that failure the landlord may make a complaint to the Board under Part 6 that he or she has suffered such loss or damage.

(5) An adjudicator or the Tribunal, on the hearing of such a complaint, may make a determination, if the adjudicator or the Tribunal considers it proper to do so, that the tenant shall pay to the complainant an amount by way of damages for that loss or damage.

"On whatever basis, if any that is open to him or her to do so" is the interesting phrase. Bearing in mind that the house is on the market...I don't see what basis is open?

sophia25

Write the letter immediately. You don't lose your right by being late but if he advertised it etc he could claim any proven losses against you. So get the letter written asap as if he advertises after you've notified him, it won't count. If you check the link I posted they have a sample letter notifying a landlord that in accordance with section 195 of Act that you intend to continue your occupation. The other thing is sometimes Landlords try to get you to sign a new lease. You don't have to and would be mad to as you are locked into a contract whereas as it stands you will be able to move when it suits you once you give necessary notice. Also do get onto Threshold re repairs not being carried out as the 2008 regulations give very specific standards you're entitled to and they can help get repairs organised.

yankadi

athrasna that's where I was getting confused, but then was finding a lot of info to point the other way, I could feel my brain ready to pop with all the pieces so came here , thanks for the input,

Sophia , great stuff I'll do that, we had written a few weeks back asking could we stay on for a while until another place was found and was immediately refuted stating the house was to be sold etc etc.
Think I'll start it now

sophia25

Yankadi Section 34 of act lays down the specific grounds the landlord has to terminate a part 4 tenancy. Putting the house on the market is not a ground, an actual sale has to be due to be completed within 3 months so a contract in place. Otherwise every landlord trying to get out of their obligation would put property on market and just not sell. Even if they claim they are moving in, if they move out within 6 months they have to allow you move back in. This was designed to cover any attempt to abuse the legit grounds for terminating the Part 4. If they claim refurbishment, they have to have planning permission etc. I've linked that part of the Act for you. But do send of letter as although you have informed him of your intention, you need to ensure you have it all perfect as he will try to push you around by the sound of it. And to think he wouldn't even give you a month.......

http://www.irishstatutebook.ie/2004/en/act/pub/0027/print.html#sec34

yankadi

Thanks ! That's all an immense relief to read, I have gone over so many pages of stuff that it just wasn't clear. Even the propery people that let the house to us knew little or nothing about the whole part 4..
You're dead right, it's the exact " escape hatch" all the cowboys would be using anytime things didn't go their way.
I'll get working on the letter and put it in first thing on Monday!

odds_on

sophia25 wrote: »

You are 100% wrong. Although the article on Daft speaks about if you do not have a fixed term contract (lease), the part 4 tenancy does come into effect in a lease also. The statutory right supersedes contract law. Any landlord who signs a lease for 6 months plus is automatically signing the right of a 4 year tenure to the tenant, See this for clarification

http://www.citizensinformation.ie/en/housing/renting_a_home/types_of_tenancy.html

A fixed Term lease is just that - it lasts for the full length of the fixed term, usually one year. Neither Landlord nor tenant can break the lease except for failure of their respective obligations or by mutual agreement. Thus, a landlord cannot use the sale of the property in order to remove tenants. He may sell the property - but with the tenant in place.

If, after six months in a fixed term lease, it becomes a Part 4 then why is it necessary for a tenant to to "claim a Part 4" tenancy. If the lease automatically becomes a Part 4 after 6 months a tenant would not have to claim one. From citizensinformation:

Claiming a Part 4 tenancy at the end of a lease
If you have a fixed-term contract or lease (for example of 1 year) and you wish to remain in the property under the rights acquired under Part 4, you must notify your landlord of your intention to stay in the property between 3 months and 1 month before the expiry of your fixed–term tenancy or lease agreement.

While both the citizensinformation and the Threshold websites are very good, they are not always absolutely correct - not distinguishing between the different types of tenancies - and readers are apt to be mis-informed.

Please note that in the above extract, the say what may happen at the end of a Fixed Term lease - there is no mention of the tenancy as having already aquired the rights of a Part 4 tenancy,

Most well-written leases will have what happens at the end of as Fixed Term lease - they usually state one of three things can happen:
1. A new Fixed Term lease
2. The right to acquire a Part 4 tenancy.
3. If neither of the first two options happen, the lease continues as a periodic lease (with the same terms and conditions as the Fixed Term lease plus all the rights relating to Part 4 tenancies),
.

sophia25

odds_on wrote: »

A fixed Term lease is just that - it lasts for the full length of the fixed term, usually one year. Neither Landlord nor tenant can break the lease except for failure of their respective obligations or by mutual agreement. Thus, a landlord cannot use the sale of the property in order to remove tenants. He may sell the property - but with the tenant in place.

That is completely true. I spoke about after the term of lease had expired and Part 4 tenancy kicks in. There are 5 specific grounds (apart from breach of obligations) that a landlord can give notice. Sophia

If, after six months in a fixed term lease, it becomes a Part 4 then why is it necessary for a tenant to to "claim a Part 4" tenancy. If the lease automatically becomes a Part 4 after 6 months a tenant would not have to claim one. From citizensinformation:
While both the citizensinformation and the Threshold websites are very good, they are not always absolutely correct - not distinguishing between the different types of tenancies - and readers are apt to be mis-informed.

After 6 months and provided written notice hasn't been given (which it can't in a lease) and there are no breaches every tenant acquires Part 4 Tenancy and security of tenure. The reason a tenant has to inform the landlord that he is exercising his right is that at the end of a lease is that there is a reasonable expectation that he may move out at the end of the lease and as he does not have to give notice, the landlord has the right to know if the tenant intends to exercise his Part 4 rights or not. The act says that the tenant should notify the landlord between 3 and 1 month prior to end of lease. If a tenant does not do this, he does not lose his statutory rights (as these can only be lost if he breaches his obligations) but if the landlord re-advertises the property for re-letting, the tenant would be liable to reimburse the landlord for any vouched expenses. Sophia



Most well-written leases will have what happens at the end of as Fixed Term lease - they usually state one of three things can happen:
1. A new Fixed Term lease
2. The right to acquire a Part 4 tenancy.
3. If neither of the first two options happen, the lease continues as a periodic lease (with the same terms and conditions as the Fixed Term lease plus all the rights relating to Part 4 tenancies),
.

It really does not matter what a lease says. It can not take away a tenants statutory rights. Statutory legislation always trumps contract law. Many landlords will try to get a new lease signed but there is no obligation for a tenant to sign as they have security of tenure for 4 years from when their tenancy started and signing a lease will only tie them into another fixed term whereas they can have security of tenure without a new fixed term contract and will be able to terminate their tenancy when they decide, once they give statutory notice. The landlord is entitled to an annual rent review but it has to be at fair market value and can not be used as a way to oust part 4 tenants out. When a landlord does an annual rent review he must also notify the tenant that they have the right to refer the matter within 28 days to PRTB if they feel the review is unfair. Sophia

The RTA 2004 has many grey areas but this is the one area that is very black and white and the PRTB has established clear precedents. I would agree that many landlords are not fully aware of the legislation and honestly believe that a lease will protect them from Part 4 tenancies, which is nonsense. Any landlord who messes with a part 4 tenancy acquired from a lease (regardless of what the lease states) are leaving themselves wide open to damages etc been awarded against them by PRTB. In addition a landlord once found to be in breach could be fined up to €3,000 and/or jailed for 6 months with a daily fine of €250 for continuing breach.

Odds-on if you continue to have any doubt about this either call PRTB or Threshold in the morning and they will confirm everything above. You could also look on PRTB website as there are many Determination Orders confirming same. This would be in the earlier years, now when this is referred to PRTB most landlords find out they were wrong and agree to mediation rather than adjudication, so in the last few years there wouldn't really be the same no. of Determination Orders about the issue.

not even wrong

odds_on wrote: »

If, after six months in a fixed term lease, it becomes a Part 4 then why is it necessary for a tenant to to "claim a Part 4" tenancy.

To avoid being held liable for the landlord's costs. If you don't notify the landlord, then you still automatically have a part 4 tenancy, but you may be held responsible for whatever costs the landlord incurred because they didn't know you were going to stay on. (Maybe they paid to put up an ad to relet it; maybe they signed a contract with a new tenant which can now not be fulfilled...)

195.—(1) In this section ‘‘relevant dwelling’’ means a dwelling, the subject of a tenancy that is for a fixed period of at least 6 months.
(2) The tenant of a relevant dwelling, if he or she intends to remain (on whatever basis, if any, that is open to him or her to do so) in occupation of the dwelling after the expiry of the period of the tenancy concerned, shall notify the landlord of that intention.
(3) That notification shall not be made to the landlord— (a) any later than 1 month before, nor (b) any sooner than 3 months before, the expiry of the period of that tenancy.
(4) If a tenant fails to comply with subsection (2) and the landlord suffers loss or damage in consequence of that failure the landlord may make a complaint to the Board under Part 6 that he or she has suffered such loss or damage.
(5) An adjudicator or the Tribunal, on the hearing of such a complaint, may make a determination, if the adjudicator or the Tribunal considers it proper to do so, that the tenant shall pay to the complainant an amount by way of damages for that loss or damage.

Nowhere in there does it say that the Part 4 tenancy is invalid, only that the landlord is entitled to compensation.

yankadi

Thanks everyone for the input, we've been reading it all and it's a great relief !

Sophia, should we use the template for the P4 or hand write it ? I'm asking as the rules seem to be strict around some of this.
We've also written another letter outlining most of the points you made.

Finally a Sunday afternoon not worrying

odds_on

It really does not matter what a lease says. It can not take away a tenants statutory rights. Statutory legislation always trumps contract law. Many landlords will try to get a new lease signed but there is no obligation for a tenant to sign as they have security of tenure for 4 years from when their tenancy started and signing a lease will only tie them into another fixed term whereas they can have security of tenure without a new fixed term contract and will be able to terminate their tenancy when they decide, once they give statutory notice. The landlord is entitled to an annual rent review but it has to be at fair market value and can not be used as a way to oust part 4 tenants out. When a landlord does an annual rent review he must also notify the tenant that they have the right to refer the matter within 28 days to PRTB if they feel the review is unfair. Sophia

Thank you very much, Sophia, for your excellent and clear explanation.

there are many Determination Orders confirming same.

Would you, by any chance, have a reference number to at least one of the determination orders?

sophia25

yankadi wrote: »

Thanks everyone for the input, we've been reading it all and it's a great relief !

Sophia, should we use the template for the P4 or hand write it ? I'm asking as the rules seem to be strict around some of this.
We've also written another letter outlining most of the points you made.

Finally a Sunday afternoon not worrying

Delighted that your mind is put at ease. The template is fine to use but do contact Threshold if you get any more hassle. They can call / write to your landlord and make him aware of your rights!

sophia25

odds_on wrote: »

Thank you very much, Sophia, for your excellent and clear explanation.

Would you, by any chance, have a reference number to at least one of the determination orders?

No problem. It's not as common anymore as usually by the time it gets to PRTB, the landlord has realised their error and will try to fix it. One case would be TR35/2007.

I'm also linking the PRTB's advice on fixed term tenancies and Part 4 obligations. Hope it helps as it can be an expensive mistake if made. Even some solicitors get it wrong and tell clients that a lease means a tenancy can end at the end of the fixed term.

http://public.prtb.ie/DownloadDocs/Termination%20of%20FT.pdf

yankadi

Great, will do that, that doc above from the prtb site is the one that sent my head in a spin after reading some of the other stuff, like you said even the solicitors get it wrong !

Thanks a million again, will let you know how it goes!

convert

I know I'm hijacking the thread here slightly (well, probably completely), but what's the use of drawing up a lease (longer than 6 months) if, as Sophia says, a tenant can envoke a Part 4 tenancy after six months and inform the landlord that they're staying beyond the duration of the initial lease? Does a landlord have any right to refuse the tenant's wish/demand to stay (apart from the usual Part 4 clauses, including refurbishment, family member moving in, for the landlord's own use, etc.)?

the_syco

convert wrote: »

but what's the use of drawing up a lease (longer than 6 months) if, as Sophia says, a tenant can envoke a Part 4 tenancy after six months and inform the landlord that they're staying beyond the duration of the initial lease?

I think the Part 4 only comes into effect when your lease expires. So if you do a one year contract, and then do another years contract (usually for a lower rent), you're still in contract. But if you stay the year, and don't sign the contract, as you're there over 6 months, you can claim Part 4, me thinks. Open to correction, though.

sophia25

The lease sets out the terms of the tenancy and gives the landlord a guaranteed term of occupancy, but that's all it does. Once a tenant is over 6 months, whether they have signed a lease or not, they have security of tenure for four years from when the start of the tenancy, providing they are not in breach of their obligations. A landlord can only serve them a Notice of Termination based on the specific circumstances laid down in Act. The tenant though has to give longer notice the longer they are in occupation. Also, although Act says a tenant should notify a landlord that they are invoking their Part 4 Tenancy, between 3-1 month before the end of their lease, if they don't they don't lose the right. They can invoke it at any time, but the landlord can claim any legitimate cost from tenant if they failed to notify him that they intended on staying on and he incurred letting agency or advertising costs.

_Kaiser_

Soo, just so I'm clear

With a Fixed Term Lease you're commited to stay for 12 months but after that it effectively becomes a rolling contract that you can cancel at anytime subject to the agreed notice period?

I'm currently in a place just over a year and the landlord has posted out a new lease for another year that I'm hesitant to sign as I'm currently doing a 200km round trip to commute to work, am on a contract anyway and to be honest I've no idea where my next job might be yet and I may need to be flexible.

So if I end up having to relocate (I should add this is not my preferred option as I AM quite happy where I am - but you go where the work is these days), I can give notice accordingly and still get my deposit back yes?

not even wrong

Kaiser2000 wrote: »

So if I end up having to relocate (I should add this is not my preferred option as I AM quite happy where I am - but you go where the work is these days), I can give notice accordingly and still get my deposit back yes?

correct, there is no obligation on you to sign another fixed term lease and the landlord cannot kick you out just because you won't sign. If you do not sign the lease you still have rights as a Part 4 tenant which means you can move out for any reason by giving the required notice period (up to 56 days depending on how long you have been living there).

yankadi

Hi Sophia and everyone..

Thanks again for all the information and help I'm sure you can imagine what a weight it took off !
Letter sent and all, no response yet, should we do a follow up or just go with "No news is good news" ?

sophia25

I would say you've rattled his cage and he is now frantically checking his facts. I can't imagine he will come back and admit you're right..... he doesn't sound like the type. You don't need that anyway, as you said you have no valid notice served, you are part 4 tenants and you can continue as is, so news is definitely good news. If he does come back and try to argue with you, please contact Threshold and they will advocate for you. they're very helpful

xper

not even wrong wrote: »

correct, there is no obligation on you to sign another fixed term lease and the landlord cannot kick you out just because you won't sign. If you do not sign the lease you still have rights as a Part 4 tenant which means you can move out for any reason by giving the required notice period (up to 56 days depending on how long you have been living there).

Quite right. In most cases, the tenant is better off invoking Part 4 Tenancy and not signing a new lease. There might be some exceptional circumstances:

• First and foremost, signing a new lease can be a quick way to negotiate a lower rent - "Drop the rent €100 and I'll commit to another year". Yes, you're entitled to a rent review anyway but some give and take on your part here, if you are inclined to think you'll be there a year anyway, can save a lot of grief;
• You might wish for and your landlord might agree to a change in the terms and conditions in the lease (e.g., allow a pet) but this would be fairly rare;
• I've heard of house share situations with a mess of leases and subleases were new new lease(s) with the current occupants was seen to clarify the situation but I'm not sure of the details. Again, its probably an extreme case.

At the end of the day, you only sign a new lease if there is some clear gain for you. You can't loose anything by going the Part 4 route.

Of course, the only other time to consider renewing a lease is at the end of the fourth year of tenancy and you want to remain, in which case, sign up and the clock is reset again for another six months probationary period before Part 4 can apply again. (This is my understanding of how it works at this stage, I've yet to reach this milestone anywhere myself).

yankadi wrote: »

Letter sent and all, no response yet, should we do a follow up or just go with "No news is good news" ?

Here's the thing about the letter of notification. Any text I've ever read refers to sending it between 3 and 1 month before the lease expires but there is no mention of how you prove you sent it (even a registered letter only proves you sent something). There's no requirement for the landlord to acknowledge it so it seems to me they could just deny it existed. Sophia25 seems clued in about cases that have gone to the PTRB. Maybe she can shed some light on where the burden of proof lies here. But at the end of the day, its only to protect you against possible costs to the landlord, your Part 4 Tenancy status is not at risk so I wouldn't loose a lot of sleep about it.

yankadi

Hi Sophia we finally got a response a week on, to save repeating stuff on the thread could I pm details to you for a bit more advice ?

Thanks