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Landlord wants tenants out.

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  • 24-08-2011 1:20pm
    #1
    Donald Draper
    Closed Accounts Posts: 22 ✭


    Hello, I have an apartment that I have been renting out since November just gone while I have been working overseas. I downloaded the lease agreement from myhome.ie which was signed by the tenants for a year lease.

    I'm still living abroad but might be back home towards the end of the year or maybe early in the new year.

    I was wondering what to do regarding asking the tennants to leave so I can move back into my home. I obviously won't be asking them to leave before november. How much notice do I have to give them? If they stay there longer than a year can I just not get them to sign another year lease and ask them to leave whenever I want ( giving ample notice?)

    Any advice would be much appreciated.

    DD


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    #2
    mebird
    Closed Accounts Posts: 61 ✭✭mebird


    Don't grant a further fixed term. This restricts you from availing from the provisions you need under the legislation.

    The tenancy will automatically become subject to the provisions of a Part 4 ( even with no formal agreement ) and you will be able to get the property back ( for the purposes of moving into yourself ) after Nov '11 ..giving 42 days notice.


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    #3
    Bigcheeze
    Closed Accounts Posts: 2,858 ✭✭✭Bigcheeze


    Is it not already a Part IV because 6 months have passed ?

    Not an expert on this but that's my interpreation of the many threads on this subject.


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    #4
    mebird
    Closed Accounts Posts: 61 ✭✭mebird


    Bigcheeze wrote: »
    Is it not already a Part IV because 6 months have passed ?

    Not an expert on this but that's my interpreation of the many threads on this subject.

    The Residential Tenancies Act 2004 is dog food. It is contradictory, spawned another Quango, and has as much practical benefit as the legislation concerning who may graze sheep on St Stephens Green. However, it is the only show in town.

    The legislation and publications issued by the Dept of Environment and PRTB on the RTA 2004 speak mostly of the benefits and rights accruing to the tenant and the landlord under a Part 4 tenancy. But sprinkled throughout the Act and publications are references to what is called a Fixed Term tenancy ( which has a start and end date ).

    My interpretation, based on having read the Act and after sifting through the crap produced by PRTB ( Threshold's are better ) is as follows:

    A Part 4 tenancy runs concurrently, or behind, a Fixed Term. For example. A fixed term tenancy may be initially for 12 months. However, after 6 months the tenant is entitled to the provisions of a Part 4 tenancy... but only in the absence of a fixed term. Therefore in this case, the tenant is only entitled to the provisions after 12 months, ie the end of the fixed term ( .... at which stage the landlord is also entitled to them ).

    None of this is by and large understood by the market and none of this is really of any consequence. My advice is, when a tenant wants to go... let them... if you think they have not given enough notice or been fair... deduct the cost of re-letting from the deposit.

    However, if the landlord needs to know when the can they can terminate the tenancy, the first question is always 'Is a fixed term in place ? or, if it has expired, how far into the Part 4 is it ?'


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    #5
    invinciblePRSTV
    Closed Accounts Posts: 2,017 ✭✭✭invinciblePRSTV


    mebird wrote: »


    None of this is by and large understood by the market and none of this is really of any consequence. My advice is, when a tenant wants to go... let them... if you think they have not given enough notice or been fair... deduct the cost of re-letting from the deposit.

    :eek:

    Bad landlord alert!


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    #6
    Donald Draper
    Closed Accounts Posts: 22 ✭Donald Draper


    mebird wrote: »

    However, if the landlord needs to know when the can they can terminate the tenancy, the first question is always 'Is a fixed term in place ? or, if it has expired, how far into the Part 4 is it ?'

    Thank you for your informative reply.

    The situation is that I (landlord) may need to move back into my place. The one year fixed term lease runs out in November so I will not be asking them to move before then. I may however not be quite ready to move back in november myself.

    So after november I do not intend to renew the lease but may want to them to stay on until i'm ready to move back in. Then when I am ready, say in the new year, can I just give them 42 days notice and ask them to leave anytime after November?? Is that right??


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    #7
    robd
    Registered Users Posts: 951 ✭✭✭robd


    Donald Draper wrote: »
    Thank you for your informative reply.

    The situation is that I (landlord) may need to move back into my place. The one year fixed term lease runs out in November so I will not be asking them to move before then. I may however not be quite ready to move back in november myself.

    So after november I do not intend to renew the lease but may want to them to stay on until i'm ready to move back in. Then when I am ready, say in the new year, can I just give them 42 days notice and ask them to leave anytime after November?? Is that right??

    Correct. So in this case you should do absolutely nothing.


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    #8
    Donald Draper
    Closed Accounts Posts: 22 ✭Donald Draper


    robd wrote: »
    Correct. So in this case you should do absolutely nothing.

    Thank you


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    #9
    Bigcheeze
    Closed Accounts Posts: 2,858 ✭✭✭Bigcheeze


    robd wrote: »
    Correct. So in this case you should do absolutely nothing.


    I don't think this is correct. At what point does the tenant's Part Iv rights kick in ?


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    #10
    BostonB
    Closed Accounts Posts: 18,056 ✭✭✭✭BostonB


    Bigcheeze wrote: »
    I don't think this is correct. At what point does the tenant's Part Iv rights kick in ?

    According to what was posted earlier, " in the absence of a fixed term"


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    #11
    mebird
    Closed Accounts Posts: 61 ✭✭mebird


    Bigcheeze wrote: »
    I don't think this is correct. At what point does the tenant's Part Iv rights kick in ?

    It is correct.

    The tenancy does not become a Part 4 tenancy until the end of the fixed term ( which was for one year ). After this, they have another 3 years should the landlord not gain possession under 6 instances. One of which is, he needs to live there himself.

    Otherwise what is the point of a fixed term agreement ?

    Here is the same interpretation off the Threshold website : 'However, please note that if a fixed term tenancy exists it cannot under any circumstances be terminated before the expiry of the term, unless the landlord or the tenant is in serious breach of the agreement. Please contact Threshold if you have any query about these rules'


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    #12
    Bigcheeze
    Closed Accounts Posts: 2,858 ✭✭✭Bigcheeze


    BostonB wrote: »
    According to what was posted earlier, " in the absence of a fixed term"


    Ok I was asking the question because the OP is talking about letting the tenant stay on a month to month basis after the fixed term.

    But it seems that as he intends to live there he has an option to remove the tenant.


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    #13
    mebird
    Closed Accounts Posts: 61 ✭✭mebird


    Bigcheeze wrote: »
    Ok I was asking the question because the OP is talking about letting the tenant stay on a month to month basis after the fixed term.

    But it seems that as he intends to live there he has an option to remove the tenant.

    Once the tenancy is a Part 4, and no longer a Fixed term the landlord may gain possession if ....

    1. the landlord intends to sell the dwelling in the next 3 months
    2. the landlord requires the dwelling for own or family member
    occupation
    3. the landlord intends to refurbish the dwelling

    and 4,5,6 yada yada.

    The Part 4 tenancy is the minimum security of tenure provided under the legislation. Greater security of tenure is under a fixed term. In the absence of a Fixed Term, the Part 4 kicks in.

    In this market, it is in the interest of every landlord to look for, and renew, a fixed term tenancy. Our friend the OP is an exception due to his situation.

    Conversely, in this market it is probably in the interests of every tenant to look for a Part 4 in the first instance and refuse to agree to a fixed term.


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    #14
    Mister Dread
    Closed Accounts Posts: 382 ✭✭Mister Dread


    One thing to be careful about...

    Whilst you were abrod did you assign somebody as an agent for your property? Did they then pay 20% tax on your rental income? If you didn't then the onus is on your tenant to do so. Make sure they do this so they don't get stung.


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    #15
    astrofool
    Registered Users Posts: 16,654 ✭✭✭✭astrofool


    invinciblePRSTV wrote: »
    :eek:

    Bad landlord alert!

    It seems a pretty standard response here that if you break a lease, than you forego your deposit, I don't think your reply here is warranted in the slightest.


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    #16
    mebird
    Closed Accounts Posts: 61 ✭✭mebird


    Mister Dread wrote: »
    One thing to be careful about...

    Whilst you were abrod did you assign somebody as an agent for your property? Did they then pay 20% tax on your rental income? If you didn't then the onus is on your tenant to do so. Make sure they do this so they don't get stung.

    It is not the Agent or the tenant's responsibility to pay 20% on the the landlord's rental income.

    If the landlord is overseas, it is the tenant / agent's responsibility to withhold 20% of the rent and submit to the revenue.

    If the tenant / agent did NOT do this, it is of no concern to the OP as I am sure the OP is up to date with their tax returns.

    Similarly, if the tenant / agent DID do this, it is no concern to the OP as I am sure the OP is up to date with their tax returns.


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