Rights to take back Property that I rented out

StillWaters

Why would you compensate if they move out early? I think giving them ample notice that you are moving in after the 12 months, and consent to break the lease early is perfectly fair.

bmwguy

I might put a date on it, if they move within 60 days I'll refund a months rent, if they wish to stay for the 12 months duration. I'll see their response first

djimi

I think thats a pretty fair approach. Youre right to try and keep it civil; you gain nothing from getting their backs up.

One thing to bear in mind is that at the end of their fixed term lease you will have to give them the required 35 notice to vacate, so it will be after the 13th month (and a bit) that you can move back in, not immediately after the 12 months are up.

(At least, Im almost certain that this is the way; that you cannot give notice to vacate during a fixed term lease. It might be worth a quick call to Threshold to confirm that one though as I could be wrong).

Agent J

djimi wrote: »

One thing to bear in mind is that at the end of their fixed term lease you will have to give them the required 35 notice to vacate, so it will be after the 13th month (and a bit) that you can move back in, not immediately after the 12 months are up.

(At least, Im almost certain that this is the way; that you cannot give notice to vacate during a fixed term lease. It might be worth a quick call to Threshold to confirm that one though as I could be wrong).

I'm pretty sure this isn't correct. A fixed term lease ends on the date given on the lease. No notice is needed.

(Assuming no one has applied for a part 4 tenancy

See here under "Claiming a Part 4 tenancy at the end of a lease "

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

There isn't any obligation for any notice to be given by either side in a fixed term lease. However it is polite & benifical all around if people do so.

http://www.threshold.ie/advice/seeking-private-rented-accommodation/advice-on-signing-a-lease/

djimi

I know a tenant doesnt have to give notice at the end of a fixed term lease but does the same apply to a landlord? As in, can they show up on the last day of the lease and demand that the tenant be out in 24 hours? I didnt think that they can.

nibtrix

djimi wrote: »

I know a tenant doesnt have to give notice at the end of a fixed term lease but does the same apply to a landlord? As in, can they show up on the last day of the lease and demand that the tenant be out in 24 hours? I didnt think that they can.

Well, I would assume most landlords would contact the tenant a month or so before the end of the lease to find out if they are going to stay or not. As the part 4 tenancy and the fixed term lease run concurrently (with the fixed term conditions superseding the part 4) surely giving notice 35 days before the end of the lease should satisfy both conditions.

Milk & Honey

The only way the tenant can be got out is by using the termination methods specified in the Act. If a fixed term lease is longer than 6 months it will have become a part 4 by the end of it.
There is a view within the PRTB that a valid notice of termination cannot be served during the course of a fixed term. There has been no court decision on this and it will be expensive for any landlord to try and find out what the court's attitude is.

odds_on

bmwguy wrote: »

I might put a date on it, if they move within 60 days I'll refund a months rent, if they wish to stay for the 12 months duration. I'll see their response first

Just remember that once the tenants have been in the property for six months, they acquire Part 4 rights. part of which allows the tenant to legally remain in the property for a total of 4 years.

Just to be on the safe side, you should issue a valid notice of termination (on the grounds that you require the property for your own use). The required notice period is, if they have been in the property for more than 6 months and 1ess than 1 year is 35 days.

There is a difference of opinion as to when a valid notice can be issued:
1. during the fixed term
2. Not until the fixed term has expired (in which case, 42 days notice is required as the tenants will have been in the property for more than 1 year).

My own belief is that it can be issued before the end of the fixed term as Part 4 rights have been acquired in the tenancy to both tenant and landlord. Thus, it can be issued to expire on the same date as the fixed term expires. However, I do not know of any test cases in Adjudication or tribunal decisions that have tested this.

Agent J

djimi wrote: »

I know a tenant doesnt have to give notice at the end of a fixed term lease but does the same apply to a landlord? As in, can they show up on the last day of the lease and demand that the tenant be out in 24 hours? I didnt think that they can.

Honestly I'm really not sure anymore. I would have thought it would have been implied with the fact it's fixed term and supposed to end on a particular date. However i can only find stuff that supports what you say. Perhaps it's assumed as obvious that a tenancy ends on the fixed date but i wouldn't think so.

It's really not clear. As others have pointed out there doesn't seem to be any test cases or clarity on this. I imagine because if it was really relevant a Landlord could do exactly what you said in your other post(Valid notice after expiry of Fixed term) which would be well before the PRTB would even look at the paperwork

Best i could dig up is this which really doesn't clarify it from the Landlords point of view.

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

Spindle

I haven't seen it mentioned in the thread, but if the OP needs his property back after the end of the fixed term lease he can take it back if he needs to live in it himself (or other family member's need to live in it). Of course he will have to follow the standard notice periods to terminate the tenancy once outside of the fixed term contract.

In the case where the tenants fail to write to him between 1 to 3 months before the end of the fixed term lease with their intentions of staying in the property under Part 4 tenancy then the OP would be within his rights to claim compensation for any loss he may incur (how this is decided I do not know??). However the tenants still are protected under Part 4 Tenancy even if they don't apply for it, so a notice period of 6 weeks would apply with them living there for 1 year.

In short just talk to the tenants tell them the situation and try and agree how to end the tenancy earlier. From the sounds of it you both seem reasonable parties, but if they are unwilling to budge, then after the 1 year is up, serve the 6 week notice and you will have the house back.

djimi

Spindle wrote: »

In the case where the tenants fail to write to him between 1 to 3 months before the end of the fixed term lease with their intentions of staying in the property under Part 4 tenancy then the OP would be within his rights to claim compensation for any loss he may incur.

Is this actually a legal requirement? I have never come across anything to suggest that a tenant must inform a landlord of their intentions to stay and can be liable for any costs incurred by the assumptions made by the landlord.

Spindle

djimi wrote: »

Is this actually a legal requirement? I have never come across anything to suggest that a tenant must inform a landlord of their intentions to stay and can be liable for any costs incurred by the assumptions made by the landlord.

Yes it is part of the Residential Tenancies Act 2004, that if in a fixed term lease, when that lease is coming to an end if you wish to stay you need to write to the landlord to notify him you wish to avail of Part 4 tenancy. Even if you don't you are still in a Part 4.

Section 195 requires a tenant of a fixed term tenancy for a term of 6
months or more who intends to avail of the protection afforded by Part
4 and to remain in occupation when the fixed term expires, to notify the
landlord of that intention between 1 and 3 months before the expiry of
the term.

So for instance if the landlord had already agreed with another party to let out the property to them and as a result of the tenant not notifying him of their intentions to stay, they could be found liable for any damages that the landlord could face for breaking the other contract entered into with the other party.

As far as I am aware this hasn't been tested in a court yet, but it is there in the Act so the landlord does have rights.

I am not sure if failure to provide this notice to enter into a part 4 tenancy allows the landlord a way of serving notice to terminate the part 4 tenancy given the correct notice period.

djimi

Interesting, I wasnt aware of that. I have heard of people trying to claim from tenants because they never thought to check with them if they were staying or not, but I wasnt sure what the outcome of such a case might be, and always figured that if it were to go to court a judge would just throw it out on the basis that the landlord never bothered to check with the current tenant before entering into another tenancy agreement with a third party for the property.

Spindle

djimi wrote: »

Interesting, I wasnt aware of that. I have heard of people trying to claim from tenants because they never thought to check with them if they were staying or not, but I wasnt sure what the outcome of such a case might be, and always figured that if it were to go to court a judge would just throw it out on the basis that the landlord never bothered to check with the current tenant before entering into another tenancy agreement with a third party for the property.

It is there to offer some protection to the landlord, as I said not sure if this would give them an avenue out of the Part 4 Tenancy with the required notice period etc.

Sorry for bringing the thread OT.

Kosseegan

Spindle wrote: »

Yes it is part of the Residential Tenancies Act 2004, that if in a fixed term lease, when that lease is coming to an end if you wish to stay you need to write to the landlord to notify him you wish to avail of Part 4 tenancy. Even if you don't you are still in a Part 4.



So for instance if the landlord had already agreed with another party to let out the property to them and as a result of the tenant not notifying him of their intentions to stay, they could be found liable for any damages that the landlord could face for breaking the other contract entered into with the other party.

As far as I am aware this hasn't been tested in a court yet, but it is there in the Act so the landlord does have rights.

I am not sure if failure to provide this notice to enter into a part 4 tenancy allows the landlord a way of serving notice to terminate the part 4 tenancy given the correct notice period.

A part 4 tenancy can only be terminated by way of Section 34 unless it is within the first 6 months of a further part 4.

It is difficult to see how a landlord would entyer a lease for a property while existing tenants are still in it, without checking when the existing tenants are vacating. The landlord may have some grounds for claiming accommodation expenses for himself or a family member if he wasn't able to move back in at the end of the lease and had to issue notice of termination.

Spindle

Kosseegan wrote: »

A part 4 tenancy can only be terminated by way of Section 34 unless it is within the first 6 months of a further part 4.

It is difficult to see how a landlord would entyer a lease for a property while existing tenants are still in it, without checking when the existing tenants are vacating. The landlord may have some grounds for claiming accommodation expenses for himself or a family member if he wasn't able to move back in at the end of the lease and had to issue notice of termination.

In terms of a fixed contract the landlord has no obligation to check with the tenant if they want to stay on in the property, of course in reality, a sane normal person would of course check first, before agreeing any other lettings, but for instance if the landlord had not received before the final month of the contract the intention of the Tenants to take Part 4, they are fully within their rights to assume the tenant is moving out on the end of the contract and can get new tenants in.

This is where the legal gray area of the Act could be tested in the court though, what judgment they would make I don't know.

djimi

Id be interested to see how a judgement of this would go. Despite what the law might say, I would see it as very negligent and foolish of a landlord to assume that no word from a tenant means that they are leaving and to enter a contract with a third party on that basis, when a simple phone call/letter before hand would give them the information they need.

Milk & Honey

Spindle wrote: »

In terms of a fixed contract the landlord has no obligation to check with the tenant if they want to stay on in the property, of course in reality, a sane normal person would of course check first, before agreeing any other lettings, but for instance if the landlord had not received before the final month of the contract the intention of the Tenants to take Part 4, they are fully within their rights to assume the tenant is moving out on the end of the contract and can get new tenants in.

This is where the legal gray area of the Act could be tested in the court though, what judgment they would make I don't know.

Presumably the new tenants would want to view the property before the letting. How would this be done with the existing tenants still in place? If it was done wouldn't the obvious question be to ask what date the tenants will be departing?

A court has no jurisdiction to deal with a claim of this kind unless the landlord is looking for at least €20K. The landlord would have to go to the PRTB. It would be a waste of €25.

odds_on

Spindle wrote: »

In terms of a fixed contract the landlord has no obligation to check with the tenant if they want to stay on in the property, of course in reality, a sane normal person would of course check first, before agreeing any other lettings, but for instance if the landlord had not received before the final month of the contract the intention of the Tenants to take Part 4, they are fully within their rights to assume the tenant is moving out on the end of the contract and can get new tenants in.

This is where the legal gray area of the Act could be tested in the court though, what judgment they would make I don't know.

But the tenants are fully within their rights to remain in the property as they have acquired their Part 4 rights. It seems that the PRTB do not consider it obligatory that a tenant has to advise a landlord that he will stay in the property. If the tenant fails to notify the landlord then the tenant can be held liable for a landlord's reasonable costs, however, what those costs can consist of is a grey area - advertising costs (yes) but costs of a new tenant not being able to move in - that is the question.

However, every landlord should be aware that at the end of a fixed term lease lasting more than 6 months (or even two or more consecutive leases totalling more than 6 months) the tenant has the right to remain in the property. Thus, a good landlord would check with the current tenants if he is intending to rent to someone else at the expiry of the fixed term.

fasttalkerchat

The legal aspect has been covered.

I would offer the tenent 2 months plus the remainder of this month rent free and offer to help move their stuff or pay for a van rental. If they can find something suitable they will probably take your offer because they won't want a bad relationship anyway.

kennyb3

Just to add to this thread - i was the tenant in this situation only a while ago.

The agent and landlord served us notice.

We signed a fixed term lease.

I wrote them a letter outlining the provisions of the 2004 Act, made a complaint to the PRTB and sent them a copy, and involved Threshold who were brilliant.

Needless to say they knew they hadn't a leg to stand on and asked to meet. Anyway long story short, eventually we came to a compromise with the landlord buying out a couple of months as compensation and giving us sufficient time to find a new place.

Ray Palmer

odds_on wrote: »

But the tenants are fully within their rights to remain in the property as they have acquired their Part 4 rights. It seems that the PRTB do not consider it obligatory that a tenant has to advise a landlord that he will stay in the property. If the tenant fails to notify the landlord then the tenant can be held liable for a landlord's reasonable costs, however, what those costs can consist of is a grey area - advertising costs (yes) but costs of a new tenant not being able to move in - that is the question.

However, every landlord should be aware that at the end of a fixed term lease lasting more than 6 months (or even two or more consecutive leases totalling more than 6 months) the tenant has the right to remain in the property. Thus, a good landlord would check with the current tenants if he is intending to rent to someone else at the expiry of the fixed term.

If you look it up the tenant has the right to request to become a part 4 resident. The LL can say the property is not available. The tenant has to request the change prior to the lease expiring. Right to request not right to stay. The LL doesn't have to keep renting beyond the lease. You don't double up on your rights

djimi

But if the tenant automatically aquires part 4 rights after 6 months, then wouldnt they just become the main form of tenancy the minute the fixed term lease expires?

To be honest I think the system somewhat contradicts itself. Either the tenant aquires part 4 rights after 6 months on any type of lease or they dont. If the tenant already has part 4 rights then why would they have to request them once the fixed term lease expires (assuming the fixed term is longer than 6 months)? Shoudnt they be protected by the part 4 terms immediately after the fixed term lease expiring?

Kosseegan

Part 4 occurs automatically after 6 months, even if the lease is for longer. All that happens is that if the tenant does not tell the landlord that he is availing of it, the tenant may have to pay compensation for losses arising as a result.
It is not a request to the Landlord for Part 4. If is a notification.

RESIDENTIAL TENANCIES ACT 2004

28.—(1) Where a person has, under a tenancy, been in occupation of a dwelling for a continuous period of 6 months then, if the condition specified in subsection (3) is satisfied, the following protection applies for the benefit of that person.

(2) That protection is that, subject to Chapter 3, the tenancy mentioned in subsection (1) shall (if it would not or might not do so otherwise) continue in being—

(a) unless paragraph (b) applies, for the period of 4 years from—

(i) the commencement of the tenancy, or

(ii) the relevant date,

whichever is the later,

or

(b) if a notice of termination under section 34 (b) is served in respect of the tenancy giving a period of notice that expires after the period of 4 years mentioned in paragraph (a), until the expiry of that period of notice.

(3) The condition mentioned in subsection (1) is that no notice of termination (giving the required period of notice) has been served in respect of the tenancy before the expiry of the period of 6 months mentioned in that subsection.

(4) Despite the fact that such a notice of termination has been so served, that condition shall be regarded as satisfied if the notice is subsequently withdrawn.


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.

Kosseegan

Ray Palmer wrote: »

If you look it up the tenant has the right to request to become a part 4 resident. The LL can say the property is not available. The tenant has to request the change prior to the lease expiring. Right to request not right to stay. The LL doesn't have to keep renting beyond the lease. You don't double up on your rights

Obviously you did not look anything up.

odds_on

Ray Palmer wrote: »

If you look it up the tenant has the right to request to become a part 4 resident. The LL can say the property is not available. The tenant has to request the change prior to the lease expiring. Right to request not right to stay. The LL doesn't have to keep renting beyond the lease. You don't double up on your rights

Sorry, I beg to disagree, Ray; -- from the RTA 2008
In brief, Section 28 provides that the 4-year statutory protection comes into existence when the tenancy has lasted 6 months from its commencement or from the Act coming into force and for its lasting four years in total (or until a notice period bringing it beyond the four years has expired), unless terminated in accordance with the Act.

Section 28 states:
28.—(1) Where a person has, under a tenancy, been in occupation of a dwelling for a continuous period of 6 months then, if the condition specified in subsection (3) is satisfied, the following protection applies for the benefit of that person.
(2) That protection is that, subject to Chapter 3 [about rent reviews], the tenancy mentioned in subsection (1) shall(if it would not or might not do so otherwise) continue in being—
(a) unless paragraph (b) applies, for the period of 4 years from—
(i) the commencement of the tenancy, or
(ii) the relevant date,
whichever is the later,
or
(b) if a notice of termination under section 34(b) is served in respect of the tenancy giving a period of notice that expires after the period of 4 years mentioned in paragraph (a), until the expiry of that period of notice.

(3) The condition mentioned in subsection (1) is that no notice of termination (giving the required period of notice) has been served in respect of the tenancy before the expiry of the period of 6 months mentioned in that subsection.

(4) Despite the fact that such a notice of termination has been so served, that condition shall be regarded as satisfied if the notice is subsequently withdrawn.

To paraphrase:
Where a person has, under a tenancy, been in occupation of a dwelling for a continuous period of 6 months then, the following protection applies for the benefit of that person; That protection is that the tenancy mentioned shall(if it would not or might not do so otherwise) continue in being — for the period of 4 years from the commencement of the tenancy.

This, I believe this phrase "if it would not or might not do so otherwise" refers to the end of a fixed term agreement where the tenancy would normally cease (as regards the fixed term agreement) may continue as a Part 4 tenancy.

No where in the above does it state that the tenant has to request to become a Part 4 tenant - that right comes automatically by section 28 of the Act. However, as stated elsewhere in the Act, if the tenant fails to notify the landlord of his intention to remain in the property, then the tenant may become liable for any reasonable expenses of the landlord.