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At the end of a 12 month fixed term lease?

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  • 06-02-2012 2:58pm
    #1
    odds_on
    Closed Accounts Posts: 1,869 ✭✭✭


    A question posted by a poster about what happens when a fixed term lease of more than six months expires. Briefly, the myths and the law.
    djimi wrote: »
    Is this true? I thought that a landlord was quite entitled to inform a tenant that they will not be staying past the end of the fixed term lease, provided they are given sufficient notice (ie not told on the day the lease expires to get out)?

    The advantage of Part 4 rights include the right to stay in a property for up to 4 years - this includes when a Fixed Term lease expires. After a tenant has been in occupation for six months, provided that the tenant has not been issued with a notice of termination during the first six months, a Part 4 tenancy commences and runs jointly and along side a fixed term lease. As a fixed term lease is more secure than a Part 4, the fixed term terms and conditions take precedence over the Part 4, until the fixed term expires at which time the Part 4 kicks in in full force.

    Thus, a landlord wishing to gain possession of his property at the end of a 12 month fixed term lease cannot do so. The landlord should only have a fixed term lease for six months (less a day). As the tenant does not acquire Part 4 rights until after 6 months in occupancy, the landlord can retain full control over his property.
    Now, and very importantly, if the landlord than makes a new 6 month lease with the same tenant, the landlord is at a loss, because the tenant will immediately acquire the Part 4 rights because he has been in continuous occupancy for the required minimum six months.
    The only way a landlord can maintain full control is to not renew a tenant's lease at the end of the six months (which the landlord should make perfectly clear to the tenant that the lease will not be renewed) and instead find a new tenant. This way, no tenant will acquire Part 4 rights.

    There have been several posts on boards.ie and other forums where (usually, unwilling) landlord have wanted to regain their property before the end of a 12 month lease as they wanted it for their own use. This landlord (because he had a fixed term lease with the tenant) cannot repossess his property until the end of the fixed term lease.
    However, in fact, he has to wait until the end of the fixed term lease and then, under the landlord's rights in a Part 4 lease, he can issue a Notice of Termination on the grounds that, for example, he requires the property for his own use, but must give the tenant 42 days notice.

    I took me a while to understand the above, so if you have any more questions - fire away.


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    #2
    djimi
    Registered Users Posts: 13,237 ✭✭✭✭djimi


    If, from 6 months on, the fixed term lease and part 4 run side by side, can the landlord not inform the tenant 42 days before the end of the fixed term that they are required to move out when the fixed term expires? The tenant stays for the full fixed term and the landlord has fulfilled their obligation under the part 4 to provide 42 days notice?

    Im not doubting what you say btw; Im just curious more than anything!


  • Options
    #3
    odds_on
    Closed Accounts Posts: 1,869 ✭✭✭odds_on


    djimi wrote: »
    If, from 6 months on, the fixed term lease and part 4 run side by side, can the landlord not inform the tenant 42 days before the end of the fixed term that they are required to move out when the fixed term expires? The tenant stays for the full fixed term and the landlord has fulfilled their obligation under the part 4 to provide 42 days notice?

    Im not doubting what you say btw; Im just curious more than anything!
    The precise answer to this I am not certain on, however, I look at it like this, but stand to be corrected.

    The Fixed term is in vigour until it expires. I don't think that a Notice of Termination, issued during the fixed term, and to expire the day after the fixed term ends would be valid. It does not give the tenant the opportunity to exercise any of his rights he has obtained under a Part 4 tenancy which both the RTA 2004 and a Part 4 tenancy try to give the tenant.

    In the same way, the landlord also acquires certain rights under a Part 4 tenancy, but I do not believe he can fully acquire those rights until the fixed term has expired just as a tenant cannot fully benefit from a Part 4 until the expiry of a fixed term - therefore, he cannot issue a valid NoT until the Part 4 agreement full kicks in at the end of the fixed term.

    For example, a tenant cannot use his Part 4 rights during the fixed term, if he wants to break the lease by giving Notice. He is bound by the terms of the fixed term lease until it expires.

    I am still searching the PRTB adjudications to see if such a case has been brought to them.

    I think very few landlords (and tenants) actually understand the implications of a Part 4 tenancy following the expiry of a fixed term lease.


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