Breaking a lease

redcrystal

Hi i am currently on a 12 month lease whith is up at the end of october in a apartment with rent allowance and want to move to a house that is available soon ,We just cannot stick the apartment anymore as the kids are always pressing the buzzer in the middle of the night and kicking thae ball off the windows when the baby is trying to sleep and were just wondering if we can give our landlord 30 days notice and not loose our deposit , i went through our lease and cannot find anything about breaking the lease at all ,can anyone advise me on this thanks

odds_on

You cannot break a fixed term lease and expect to get your deposit back.

However, you can assign it (with the landlord's permission) to a person who will take over the lease. As you are breaking the lease, it is your responsibility to find the new tenant (acceptable to the landlord) and cover the costs.

If the landlord has to find the new tenant you are liable for his reasonable vouched expenses (advertising, agents fees etc).

If you move out in the hope of finding someone, you are still liable for the rent until a new tenant is in place.

Max Power1

Realistically speaking (apart from losing the deposit) there isnt much that the LL can do if you break the lease.

Even findings made by the PTRB are not legally binding.

redcrystal

had a chat today with citizins info today and i can break it and get my deposit back if i give him 35 days notice in writing

djimi

redcrystal wrote: »

had a chat today with citizins info today and i can break it and get my deposit back if i give him 35 days notice in writing

I have no idea who told you that or where they got the information from but you cannot break a fixed term lease with any amount of notice and expect to go unpunished. The very least you can expect is to lose your deposit, and legally the landlord can persue you for the remaining amount of the lease, however most will not bother with the cost/effort involved in doing so and will settle with your deposit.

Icepick

redcrystal wrote: »

had a chat today with citizins info today and i can break it and get my deposit back if i give him 35 days notice in writing

total nonsense

odds_on

redcrystal wrote: »

had a chat today with citizins info today and i can break it and get my deposit back if i give him 35 days notice in writing

That only applies if you have a Part 4 lease.
It does not apply if you have a fixed term lease.

sarkozy

I'm potentially due to be in a similar situation. In Boardsies' experience, do decent landlords (letting a place to decent tenants ) return deposits when, on agreement, the tenants assign new tenants and no expenses are incurred by the LL?

We have a good relationship with our LL, and we may be required to move out, breaking our lease, and would be happy to find alternate tenants for him. We feel we owe it to him, as we really like living here and he's been so helpful.

not even wrong

sarkozy wrote: »

In Boardsies' experience, do decent landlords (letting a place to decent tenants ) return deposits when, on agreement, the tenants assign new tenants and no expenses are incurred by the LL?

All landlords must return the deposit in this situation, because they are legally required to by the Residential Tenancies Act.

odds_on

sarkozy wrote: »

I'm potentially due to be in a similar situation. In Boardsies' experience, do decent landlords (letting a place to decent tenants ) return deposits when, on agreement, the tenants assign new tenants and no expenses are incurred by the LL?

We have a good relationship with our LL, and we may be required to move out, breaking our lease, and would be happy to find alternate tenants for him. We feel we owe it to him, as we really like living here and he's been so helpful.

One of the Residential Tenancies Act 2004 clauses gives the tenant the right to break a fixed term lease by assigning the remainder of their lease, with the landlord's permission, this includes a fixed term lease. If there is no expense to the landlord then the full deposit must be returned excepting and damages above normal wear and tear. However, the landlord may refuse an unsuitable assignee (after any vetting checks the landlord may do).

If the landlord incurs a loss, then the tenant is liable. The tenant is liable for the rent until the new tenant (the assignee) starts to pay the rent. Thus, if the tenant moves out and the assignee does not move in for another two weeks, the tenant is liable for the rent for those two weeks.

If the landlord refuses permission to assign, the the tenant is free to leave after a notice period of 28 days and retain his deposit.

A landlord has no such right to break a lease.

Legally, when an assignment occurs, the tenant should also sign a "deed of assignment" which legally transfers the responsibility of the tenant of all the terms and conditions of the lease to the assignee (new tenant). In practice, this rarely happens and the assignee just takes over living in the property. In a shared property (house share) the deed of assignment should also indicate if any tenants will remain in the property.

sarkozy

The situation seems very clear, thanks.

quietsailor

not even wrong wrote: »

All landlords must return the deposit in this situation, because they are legally required to by the Residential Tenancies Act.

But only if the LL agrees to the new tenants and is happy with their references, merely assigning the lease to a new tenant isn't good enough

Piriz

What about if the landlord did not show the tenant a BER energy rating certificate for the house. The tenant can claim that the house is not energy efficient and the contract is void.

?

odds_on

Piriz wrote: »

What about if the landlord did not show the tenant a BER energy rating certificate for the house. The tenant can claim that the house is not energy efficient and the contract is void.

?

It has not been established in law that a lease contract is void if no BER cert has been shown to a prospective (or current) tenant.

It is not a requirement of the RTA 2004.

Funnyonion79

odds_on wrote: »

redcrystal wrote: »

had a chat today with citizins info today and i can break it and get my deposit back if i give him 35 days notice in writing

That only applies if you have a Part 4 lease.
It does not apply if you have a fixed term lease.

If the tenant is in the property longer than six months, do they not automatically acquire Part 4 rights, even though they've signed a Fixed Term lease? Therefore if they wanted to break the Fixed Term lease after 6 months, the Part 4 rights would supersede the terms and conditions of the Fixed Term lease - hence Citizens Advice telling the OP that they can break the lease if they give 35 days notice...?

(I don't know if this is the case btw, as I'm only learning, but could this be a possible scenario...?)

odds_on

Funnyonion79 wrote: »

If the tenant is in the property longer than six months, do they not automatically acquire Part 4 rights, even though they've signed a Fixed Term lease? Therefore if they wanted to break the Fixed Term lease after 6 months, the Part 4 rights would supersede the terms and conditions of the Fixed Term lease - hence Citizens Advice telling the OP that they can break the lease if they give 35 days notice...?

(I don't know if this is the case btw, as I'm only learning, but could this be a possible scenario...?)

While a Fixed Term Lease is in existence, a tenant acquires Part 4 rights in as much as that at the end of the fixed term the tenant has the right to remain in the property for a total of 4 years. The tenant also then has the right to decide what type of lease he wants -

1. another fixed term which will give him much more security of tenure (i.e. the landlord can only evict the tenant if the latter is in breach of his obligations) and the tenant is obliged to remain for the full term; or

2. A part 4 tenancy which allows the landlord to evict the tenant under one or more of 6 grounds but also allows the tenant to vacate without giving a reason, by giving the appropriate notice in writing (42 days if tenancy has lasted more than 1 year but less than 2 years).

However, with a fixed term lease, the RTA 2004 gives the tenant a "get out of the lease" option by assigning the remainder of the fixed term lease to another person. A landlord has no such "get out" option.

Therefore, while a fixed term lease is in existence, being a more secure type of tenancy, the Part 4 conditions do not supersede fixed term conditions but must wait until the fixed term has expired.

If during the first 6 months of a fixed term tenancy, the tenant is served with a valid notice of termination (even if it is subsequently withdrawn), the tenant is not entitled to Part 4 rights.

IMHO, while both Citizens Information and Threshold both provide valuable assistance, they do sometimes mislead (though inadvertently) people as to the law by failing to differentiate between fixed term tenancies and Part 4 tenancies.

On their websites, they give good advice but sometimes fail to clarify if something applies to a fixed term or part 4, hence there is much confusion. It is not unusual to find posters on boards.ie quoting Part 4 conditions when something actually applies to a Fixed term lease.

Funnyonion79

odds_on wrote: »

Funnyonion79 wrote: »

If the tenant is in the property longer than six months, do they not automatically acquire Part 4 rights, even though they've signed a Fixed Term lease? Therefore if they wanted to break the Fixed Term lease after 6 months, the Part 4 rights would supersede the terms and conditions of the Fixed Term lease - hence Citizens Advice telling the OP that they can break the lease if they give 35 days notice...?

(I don't know if this is the case btw, as I'm only learning, but could this be a possible scenario...?)

While a Fixed Term Lease is in existence, a tenant acquires Part 4 rights in as much as that at the end of the fixed term the tenant has the right to remain in the property for a total of 4 years. The tenant also then has the right to decide what type of lease he wants -

1. another fixed term which will give him much more security of tenure (i.e. the landlord can only evict the tenant if the latter is in breach of his obligations) and the tenant is obliged to remain for the full term; or

2. A part 4 tenancy which allows the landlord to evict the tenant under one or more of 6 grounds but also allows the tenant to vacate without giving a reason, by giving the appropriate notice in writing (42 days if tenancy has lasted more than 1 year but less than 2 years).

However, with a fixed term lease, the RTA 2004 gives the tenant a "get out of the lease" option by assigning the remainder of the fixed term lease to another person. A landlord has no such "get out" option.

Therefore, while a fixed term lease is in existence, being a more secure type of tenancy, the Part 4 conditions do not supersede fixed term conditions but must wait until the fixed term has expired.

If during the first 6 months of a fixed term tenancy, the tenant is served with a valid notice of termination (even if it is subsequently withdrawn), the tenant is not entitled to Part 4 rights.

IMHO, while both Citizens Information and Threshold both provide valuable assistance, they do sometimes mislead (though inadvertently) people as to the law by failing to differentiate between fixed term tenancies and Part 4 tenancies.

On their websites, they give good advice but sometimes fail to clarify if something applies to a fixed term or part 4, hence there is much confusion. It is not unusual to find posters on boards.ie quoting Part 4 conditions when something actually applies to a Fixed term lease.

That's great information there Odds_on, thanks for clarifying.