Tenant refusing to leave

mkdon05

Be careful of the advice you are getting here because most of it is coming from, what I suspect, are renters with a chip on there shoulder about landlords.

Mr. Presentable

Get some proper advice from PRTB. Do not act on the advice of posters on the internet (yes, I get it ), you don't know where they've been!

djimi

mkdon05 wrote: »

Be careful of the advice you are getting here because most of it is coming from, what I suspect, are renters with a chip on there shoulder about landlords.

Believe it or not, most tenants do not have a chip on their shoulder about landlords...

The questioning of the OP being owner occupier or not is very valid as it greatly affects the process that they must undertake to remove the tenants from the property. It is something the OP must clarify for themselves, because if a tenant takes a case against them and the ruling goes against the OP then they could be in trouble.

mkdon05

Most probably don't, but some on here certainly do!

As an aside is there a legal definition of owner occupier, stating conditions?

PhoenixParker

There is little doubt to me that the OP is an owner occupier.
Most of the previous posters don't seem to understand the concept of PPR, and tbh the OP is confusing the situation slightly with the language they are using.
"not living there", "moving back officially".

You are living there OP, you're not staying there. You're living there because it's the only house you own, you're claiming mortgage interest relief there, you're not renting elsewhere, you retain a key, a bedroom and stuff there, your bills are delivered there, you're not married to someone who's declaring a PPR elsewhere and if nothing else was going on in your life you would stay there all the time. Most importantly the revenue have confirmed that there are no tax implications to you staying down home, i.e. they regard it as your PPR.

I would triple confirm that with the revenue, and get it in writing if you can.

On that basis, these are lodgers not tenants, and that is the law that applies. If you want to change from what you've already done, then I suggest you get a solicitor involved now. Don't have them write letters or get directly involved but do get their advice on what to say and how to say it.

Personally I wouldn't worry about it. Lodger is due to leave in a month. Chances are the phone call got it out of their system and they will pretend it never happened and move out as planned. I'd spend more time there over the next few weeks, and if it looks like there's going to be a problem consult a solicitor. I'd also do a hell of a lot of reading and go through your rent a room agreement with a fine tooth comb.

odds_on

I think the definition of a resident landlord may differ for the rent a room scheme (and therefore the Revenue) and for the purposes of the Residential Tenancies Act 2004.

According to a PRTB document (which is an interpretation of the law and not the law, a licensee is:

(c) persons occupying accommodation in which the owner is not resident under a formal licence arrangement with the owner where the occupants are not entitled to its exclusive use and the owner has continuing access to the accommodation and/or can move around or change the occupants, and

However, I fail to fully understand the first part of this (the highlighted part)
"persons occupying accommodation in which the owner is not resident under a formal licence arrangement with the owner"
Any thoughts on this?
Possibly: "persons occupying accommodation, in which the owner is not resident, under a formal licence arrangement with the owner ....."

pawnacide

You are not required to register with the PTRB so sod em .. throw them out. If they sue you privately so be it .. they'll lose. If you have a room in the house then you are an owner occupier and the revenue won't be interested in anything they have to say.

PhoenixParker

odds_on wrote: »

I think the definition of a resident landlord may differ for the rent a room scheme (and therefore the Revenue) and for the purposes of the Residential Tenancies Act 2004.

According to a PRTB document (which is an interpretation of the law and not the law, a licensee is:



However, I fail to fully understand the first part of this (the highlighted part)
"persons occupying accommodation in which the owner is not resident under a formal licence arrangement with the owner"
Any thoughts on this?
Possibly: "persons occupying accommodation, in which the owner is not resident, under a formal licence arrangement with the owner ....."

I think the situation described here is where the landlord rents rooms in the house rather than the house. In the UK it would be called a House of Multiple Occupation. (HMO)

In a normal houseshare, the lease covers the whole house and if someone moves out tenants interview people and replace them. If there's a gap the tenants in the house are responsible for the rent.

In the situation described, the lease covers only the individual tenants room with rights to use the bathroom and the kitchen (and sitting room if there is one). If someone moves out, the landlord interviews people and replaces them. If there's a gap the landlord eats the cost. The landlord doesn't live in the house though.

It's a step between lodger and tenant, and common enough with students.
Not really applicable here, although it's probably the second line of defense if the revenue come back and say "not your PPR".

athtrasna

pawnacide wrote: »

You are not required to register with the PTRB so sod em .. throw them out. If they sue you privately so be it .. they'll lose. If you have a room in the house then you are an owner occupier and the revenue won't be interested in anything they have to say.

:eek:

You do not have to be registered with the PRTB for a case to be taken against you. If a case is taken you just get all the grief/fines etc for failing to register (it's a legal requirement that you register).

However, it's still not clear whether this is a tenancy or license case. The OP needs further advice on this.

Plazaman

Burnbaby76 wrote: »

One of the lodgers explained that they needed an extension at the time and I agreed to this (begrudingly).

The second lodger, expressed no sentiment however, a couple of weeks ago requested a reference for potential landlords, which I provided without issue.

Today I received an obnoxious voicemail informing me that I was everything under the sun (name calling and general defamation of character!) and that they were not moving out until "they were good and ready".

Since everyone seems fixated on if you are an owner/occupier and not on your original query, here's my two cents on your OP.

Just to clarify, which one was the name caller, the first one who you gave the extension to or the second one who you provided the reference to?

Don't know why either have a problem since

* they knew of your situation before they moved in that you may require the house back
* you granted extension to person 1 which is what they asked
* you gave reference to person 2 which is what they asked

I think (1) a face to face is needed immediately with the agitator and reiterate the 1st of April deadline. Inform them clearly they will be treated as a trespasser after that date. Tell him any further guff, threats or fúckwittery from him, will result in you rescinding the extension and he'd need to be out within 24 hours (2) you need to move back into house today to protect your property for the next week or so just in case this guy decides to have a hissy fit and wreck the place (3) on April 1st you and a back up team (or the Garda Shicks) may have to forceably remove phoneboy if he doesn't leave of his own accord.

athtrasna

The fixation is because:

If the OP is an owner occupier under the terms of the RTA - the "tenants" are licensees and can be asked to leave with little or no notice. In that case there would be cause for the OP to report trespass as you suggest.

However, if they are not an OO - these tenants are actual tenants. As the problem tenant has been in place for 6 months that would give them a Part 4 tenancy, which is a much stronger position than a licensee. They can still be asked to leave if the owner wants the property to move back into themselves, but there are procedures that must be followed or the tenant can take an illegal eviction case through the PRTB which could prove very costly for the OP.

schemingbohemia

athtrasna wrote: »

The fixation is because:

If the OP is an owner occupier under the terms of the RTA - the "tenants" are licensees and can be asked to leave with little or no notice. In that case there would be cause for the OP to report trespass as you suggest.

However, if they are not an OO - these tenants are actual tenants. As the problem tenant has been in place for 6 months that would give them a Part 4 tenancy, which is a much stronger position than a licensee. They can still be asked to leave if the owner wants the property to move back into themselves, but there are procedures that must be followed or the tenant can take an illegal eviction case through the PRTB which could prove very costly for the OP.

Yeah but that's just facts and reasoned opinion you're posting there!

Kosseegan

athtrasna wrote: »

Yes but how long have you been actually resident between Jan & Dec? If you haven't lived there as your principal residence, the tenant would have attained Part 4 tenancy under the RTA and you would have to evict formally. If it was genuinely your principal residence then they are licensees not tenants and have few rights if any and can be asked to move out with little or no notice.

It is deemed to be his principal residence for tax purposes unless he claims he has moved out of the jurisdiction and does not want to pay tax. The tenant only has a lease for a bedroom and so is not a tenant. The o/p has been coming and going from the house all of the time. A pwewrson may well own a house and spend a lot of their time away, on business or otherwise. A person with a sick parent may spend a lot of time at the parents home. The taxman will not care and neither will the PRTB. The bills are in his name, he owns no other house and he comes and goes from time to time. No one is going to enquire as to how many nights he as spent in the house and if he has not been there often enough he has given up possession of the house entirely. It is absurd.

In any case look at

Ref: TR 08/DR378/2006
In the matter of Derek Murphy (Appellant Tenant) and Don Flannery (Respondent Landlord the Private Residential Tenancies Board, in accordance with section 121 of the Residential Tenancies Act 2004, that :

Facts Agreed by Parties

The following facts were agreed by both Parties:-

• the Landlord and Tenant had entered into a letting agreement in or about the month of December 2003;

• the premises at 145 Waterside, Charlotte Quay, Ringsend, Dublin 4 is an apartment consisting of a reception/dining/kitchen area and three bedrooms;

• pursuant to the agreement made between the Parties in or about the month of December 2003 the Tenant was entitled to exclusive occupation of one bedroom and shared the rest of the facilities in the apartment, including the reception area, dining area, kitchen and bathroom facilities with other occupants;

• the other occupants had separate arrangements and agreements with the Landlord and similarly were entitled to exclusive occupation of their respective bedrooms and shared the rest of the facilities including the reception, dining, kitchen and bathroom facilities with other occupants including the Tenant; and

• in the period from the date on which the Tenant first entered into occupation in January 2004 to date there had been a number of occupants who had shared the apartment, with the Tenant;

• the Tenant had put a lock onto his bedroom and the Landlord had removed the lock.


The Law

Section 3 of the Act of 2004 sets out the scope of application of Act in the following terms:

3.—(1) Subject to subsection (2), this Act applies to every dwelling,
the subject of a tenancy (including a tenancy created before the
passing of this Act).


Section 76 of the Act of 2004 grants a right of referral of a dispute to the PRTB by parties to tenancy and certain other persons in the following terms:

76.—(1) Either or both of the parties to an existing or terminated
tenancy of a dwelling may, individually or jointly, as appropriate,
refer to the Board for resolution any matter relating to the tenancy
in respect of which there is a dispute between them.



Section 4 of the Act of 2004 provides the following definitions:

“ dwelling” is defined as meaning “subject to subsection (2), a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel and a vehicle (whether mobile or not);”

‘‘self-contained residential unit’’is defined as including “the form of accommodation commonly known as ‘‘bedsit’’ accommodation;”




Reasons for Decision of the Tribunal

On the facts agreed by the Parties the Tenant was not entitled to occupation of a “self-contained residential unit”.

Under the agreement entered into in December 2003 the Tenant is merely entitled to exclusive occupation of one bedroom and he shares other facilities including the kitchen, bathroom facilities and reception area facilities with other occupants.

The Landlord was of the view that the Tenant was not entitled to put a new lock onto the bedroom door. The Tenant contested this.

It is clear from the evidence that the letting does not come within the definition of “dwelling” as set out in section 4 of the Act of 2004. The shared facilities afforded to the Tenant could not be considered to be a “bed-sit” or any other form of “self-contained residential unit”.

It follows that the relationship between Landlord and Tenant is outside the scope of application of the Act of 2004 and the Tribunal does not have jurisdiction to determine the dispute.

Solair

Two quick points:

1) You are the owner, but you are not the occupier, as you do not live there.

2) 6 weeks notice is not long enough to give someone a practical chance to find a new place. Can you not move into the spare room until such time as you can move back in?

I would consider 6 weeks notice pretty harsh. You have no idea what circumstances you may be placing your tenants in by chucking them out on the street with that short of notice. Some people might have the option of moving back in with their folks or something temporarily, but not everyone has that luxury and it's a huge ordeal to have to move home at short notice, not to mention expensive!

The very least you could do is everything in your power to assist them finding a new place, including providing a reference explaining that you have had to move back in due to changing circumstances and that they are wonderful tenants etc etc.

Could you ring around some adverts on Daft and see if you can set them up with some viewings?

djimi

Solair wrote: »

2) 6 weeks notice is not long enough to give someone a practical chance to find a new place. Can you not move into the spare room until such time as you can move back in?

I would consider 6 weeks notice pretty harsh. You have no idea what circumstances you may be placing your tenants in by chucking them out on the street with that short of notice. Some people might have the option of moving back in with their folks or something temporarily, but not everyone has that luxury and it's a huge ordeal to have to move home at short notice, not to mention expensive!

The very least you could do is everything in your power to assist them finding a new place, including providing a reference explaining that you have had to move back in due to changing circumstances and that they are wonderful tenants etc etc.

Could you ring around some adverts on Daft and see if you can set them up with some viewings?

6 weeks is plenty of time. If they were a tenant under a part 4 they might not even get 6 weeks (its 4 weeks for a tenancy under a year). When you rent you accept these terms, especially when on a part 4, or worse still as a licensee where you have pretty much no rights.

Its also not the landlord responsibility to find or assist the tenant in finding a new place to live.

Lantus

I would say your ARE an owner occupier and you have been very generous in offering 6 weeks notice.

If possible I would move back in as much as possible. Several days a week or more to keep an eye on things.

Be very firm and fair with the tenant. They are in your house. If they are well behaved and leave in good time as you have agreed then fair enough. If they cause bother, damage anything malicously, threaten you or anyone else then you will remove them, their things and change the locks. Have a locksmith in mind and lined up (costs etc.)

IF they want to contest this by getting a solicitor then let them. Solicitors charge upwards of 70 an hour and I doubt they have that much money to invest in such a case just to be told that they have no leg to stand on. IF it ever came near a court I doubt very much you'd have anything to worry about give the fact they are just lodgers in a house.

This is a case of a very bad tenant, your in the right, firm but fair, get them out.

Burnbaby76

I have requested a meeting with both individuals - will let you know how it goes.

6 weeks is a lot of notice, and just by a quick search of Daft/ My home, there are a number of properties available for rent in the area - so am failing to see why it's so difficult for them.

The person throwing their toys out of their pram is the same that I gave the reference to and NOT the person who requested the extension.

Both parties, as mentioned, were agreeable to a 30 day termination period and signed a contract to that effect - this is mainly my bemusment as to why the difficulty - they received 14 days more notice than required!


As I said will let you know how it goes.

daltonmd

Burnbaby76 wrote: »

Okay just to clarify....

I have been staying there on and off - just not daily.

The RS lodger who has created this situation, is in the house since sept. 11.

When moving in I explained my circumstances, and all parties were in agreement.

The rent is paid monthly via the rent a room scheme.

I have had previous lodger that used this, but I've never had any issues - apart from this one.... and it's proving a head ache and a half!!!

In order for your lodger to get RS doesn't there have to be a lease/ tenancy agreement signed?

BostonB

What is RS? I don't think the OP means Rent Supplement. Needs clarification.

schemingbohemia

BostonB wrote: »

What is RS? I don't think the OP means Rent Supplement. Needs clarification.

From memory the original title of the thread had some mention of RS, since excised.

odds_on

Burnbaby76 wrote: »

I have requested a meeting with both individuals - will let you know how it goes.

6 weeks is a lot of notice, and just by a quick search of Daft/ My home, there are a number of properties available for rent in the area - so am failing to see why it's so difficult for them.

The person throwing their toys out of their pram is the same that I gave the reference to and NOT the person who requested the extension.

Both parties, as mentioned, were agreeable to a 30 day termination period and signed a contract to that effect - this is mainly my bemusment as to why the difficulty - they received 14 days more notice than required!


As I said will let you know how it goes.

What was the title of the contract? Was there any mention of a term for occupancy? Are there any other relevant clauses in the contract? What did the contract say about shared facilities? Were the occupiers designated a particular room in the contract?

Burnbaby76

Well I met with all parties concerned, even brought a witness.

Hashed all details, and it would appear the situation has been resolved.

Many thanks to all who contributed.

quietsailor

not even wrong wrote: »

If you're not living there then you're not an occupier.

That's a stupid generalisation - What about a person who works abroad for 6-8 months (or more) of the year.

The revenue will still ask them to submit tax returns, if they don't "live" in their house (according to your definition) then why does the revenue ask for a tax return??

Thats one example, there will be several others I'm sure so stop writing generalistions, they're dangerous and will give false information to people reading this thread in the future.