I'm late 11 days with rent and landlord emails me a "Notice of Eviction"

BostonB

Páid wrote: »

I don't agree. Before you serve anything in writing you have to notify the tenant that they are in arrears. This can be done verbally but in this case the landlord has done it in an email.....

You must be looking at a different thread or something.

Sugar Soap

djimi wrote: »

The OP is not on a part 4; they are 7 months into a fixed term lease. There is no notice of termination in this instance, and even if there was, the OP has not given any indication that the landlord tried to, or had any good reason to, issue notice of termination under one of the clauses set out in the part 4 tenancy.



If their intent was to issue a notice of arrears then they went about it completely arseways. Vaguely hinting in an email that a notice of eviction/termination will be issued is not sufficient.

The o/p acquired Part 4 rights after 6 months. The lease has nothing to do with it.

djimi

Sugar Soap wrote: »

The o/p acquired Part 4 rights after 6 months. The lease has nothing to do with it.

The OP may have acquired part 4 rights, but the fixed term lease is still in effect, which means that the terms of the part 4 tenancy which allow either party to issue a notice of termination do not yet apply.

Páid

djimi wrote: »

The OP is not on a part 4; they are 7 months into a fixed term lease. There is no notice of termination in this instance, and even if there was, the OP has not given any indication that the landlord tried to, or had any good reason to, issue notice of termination under one of the clauses set out in the part 4 tenancy.

The tenant has part 4 rights whether there is a lease or not. You cannot contract out of the Residential Tenancies Acts. There are penalties for breaking a lease and in this instance the landlord and tenant agreed that it would be two weeks rent.

If their intent was to issue a notice of arrears then they went about it completely arseways. Vaguely hinting in an email that a notice of eviction/termination will be issued is not sufficient.

The first step is not serving a written notice of termination, it is notifing the tenant that they are in arrears. This can be done verbally and is meant to be an informal process. If the arrears are sorted out within a reasonable timeframe then no notice need ever be served.

Again from the prtb

This first notification does not need to be in writing. A landlord can give a tenant verbal notice of the rent arrears but must ensure that the tenant is aware that failure to pay the rent arrears within a reasonable time will result in the landlord terminating the tenancy. As a landlord may need to give evidence that this has been communicated to the tenant, it may be prudent to give this notice in writing.

If the landlords agent turns up (as mentioned in the email) and issues a written notice of some kind, the legality of that notice can then be examined.

I believe the landlord was just putting the tenant on notice that they are in rent arrears. I don't believe they are intending to evict the tenant before the agreed date. What s/he is trying to do is prevent a situation where the middle of July comes and the tenant has paid no rent and won't move out (this is a worst case scenario and I am not suggesting that the OP would do this). If at that time the landlord has not followed the correct PRTB procedures they must start again from the very beginning by;

1. Infoming the tenant that they are in breach of their obligation to pay rent
2. Then wait a reasonable time
3. Then serve a 14 day warning notice
4. Then wait 14 days
5. Then serve a 28 day notice of termination.
6. Then wait 28 days

This delay in getting the tenant out is what the landlord is trying to prevent. By starting the process now s/he can legally have the tenant evicted if and only if they have no other choice.

BostonB wrote:

You must be looking at a different thread or something.

Try reading the procedure for terminating a tenancy for rent arrears. It is very clear - http://www.prtb.ie/dispute-resolution/disputes/information-on-terminating-a-tenancy-for-rent-arrears

Páid

djimi wrote: »

The OP may have acquired part 4 rights, but the fixed term lease is still in effect, which means that the terms of the part 4 tenancy which allow either party to issue a notice of termination do not yet apply.

The fixed term lease was agreed to be broken by both parties with a penalty of two weeks rent. This is the second paragraph of the original post;

He agreed to break the lease early and we could move out on July 13th rather than September. As a penalty for terminating the lease early, he asked us to move out 2 weeks before the end of the month but still pay for that full last month. I agreed on that as it seemed fair, plus he was always really friendly person and I felt bad that we want to move out already.

djimi

Páid wrote: »

The fixed term lease was agreed to be broken by both parties with a penalty of two weeks rent. This is the second paragraph of the original post;

From the original post:

He agreed to break the lease early and we could move out on July 13th rather than September.

The fixed term lease is still in effect until July 13th. The tenant is not on a part 4 tenancy, ie neither party can issue a notice of termination under the terms of a part 4 tenancy that would take effect before July 13th.

galtee mountain boy

Djimi, Odds on, it’s always good to read your replies as your know your stuff without a doubt, some **** spouted in the opening 10 or so posts, posters plucking information from their hole, nothing that annoys me more when people are trying to make out they know it all, educate yourselves before ye start spouting bull**** ffs.

djimi

Páid wrote: »

The first step is not serving a written notice of termination, it is notifing the tenant that they are in arrears. This can be done verbally and is meant to be an informal process. If the arrears are sorted out within a reasonable timeframe then no notice need ever be served.

If the landlords agent turns up (as mentioned in the email) and issues a written notice of some kind, the legality of that notice can then be examined.

I believe the landlord was just putting the tenant on notice that they are in rent arrears. I don't believe they are intending to evict the tenant before the agreed date.

Maybe its just in the interpretation of the email, but I dont read it like that at all. From the email as posted in the OP:

I have no choice but to serve you with Notice of Eviction, with notice effective as of today, 6th June 2013.

My agent will serve notice in writing at [MY ADDRESS] in the coming days.

The landlord does not say that they will have no choice but to serve notice of eviction if the rent is not paid in 14 days, they quite specifically say that they are serving a notice of eviction effective from the date of the email. This does not suggest to me that they are issuing any warning about arrears, and it also does not suggest that they intend to allow the required 14 days for the tenant to sort the arrears.

If the landlord shows up in two weeks time with written notice of eviction, dated from the 20th June, then the email could perhaps be taken as a notice of arrears (although I would still be questioning the wording and intent of it). However, I suspect that, from reading the email, the landlord will not be waiting two weeks, and will instead be showing up with written notice of eviction dated from the 6th June.

Zulu

Great post! Informative, insightful, and thought provoking.


...oh, and insulting. I forgot insulting.

Páid

djimi wrote: »

From the original post:
The fixed term lease is still in effect until July 13th. The tenant is not on a part 4 tenancy, ie neither party can issue a notice of termination under the terms of a part 4 tenancy that would take effect before July 13th.

I agree that the lease is in place until July 13th. That being said, the lease at any time does not stop a part 4 tenancy from being acquired by the tenant after 6 months. As I said earlier, you cannot contract out of the Residential Tenancies Acts and you cannot prevent a part 4 by having a lease.

Instead, they will run concurrently. In the event of an incompatibility between the lease and the Residential Tenancies Acts, the Residential Tenancies Acts will apply. If the part 4 has been acquired then the landlord is entitled and obliged to follow the prescribed PRTB procedures.

FIXED TERM TENANCIES AND PART 4
The existence of a fixed term tenancy does not preclude the operation of Part 4. Part 4 runs with a fixed term tenancy, so that the continuous occupation by a tenant under a fixed term tenancy for a period of 6 months, means the tenant shall, as in normal course, become entitled to the protections of a Part 4 tenancy. In cases of fixed term tenancies however, the rights under Part 4 only apply to the extent that they benefit the tenant over and above the rights afforded to him or her under the terms of the fixed term tenancy.

http://www.prtb.ie/dispute-resolution/disputes/terminating-a-fixed-term-tenancy

Also on that PRTB page you will see that a landlord cannot get out of a fixed term lease solely by using the part 4 procedures. There must be a breach on behalf of the tenant (and I presume there is in this case as they are in rent arrears).

BostonB

What is insulting?

djimi

Páid wrote: »

I agree that the lease is in place until July 13th. That being said, the lease at any time does not stop a part 4 tenancy from being acquired by the tenant after 6 months. As I said earlier, you cannot contract out of the Residential Tenancies Acts and you cannot prevent a part 4 by having a lease.

Instead, they will run concurrently. In the event of an incompatibility between the lease and the Residential Tenancies Acts, the Residential Tenancies Acts will apply. If the part 4 has been acquired then the landlord is entitled and obliged to follow the prescribed PRTB procedures.


http://www.prtb.ie/dispute-resolution/disputes/terminating-a-fixed-term-tenancy

Also on that PRTB page you will see that a landlord cannot get out of a fixed term lease solely by using the part 4 procedures. There must be a breach on behalf of the tenant (and I presume there is in this case as they are in rent arrears).

The one part where a fixed term lease does override the terms of the part 4 tenancy is the notice period. There is no notice of termination for either party while the tenant is on a fixed term lease (unless the landlord can issue a legal eviction notice for breach of lease, non-payment of rent or serious anti-social behaviour). The notice of termination terms of the part 4 tenancy do not apply for the duration of a fixed term lease.

If the landlord wishes to issue a notice of eviction for non-payment of rent then they must follow the legal procedure. Based on what has been described in this thread, and based on the email that they sent to the tenant, I do not believe that this process has been properly followed (or, more specifically, I do not get the impression that it is the landlords intention to follow it properly based on what they said in the email).

Páid

djimi wrote: »

The one part where a fixed term lease does override the terms of the part 4 tenancy is the notice period. There is no notice of termination for either party while the tenant is on a fixed term lease (unless the landlord can issue a legal eviction notice for breach of lease, non-payment of rent or serious anti-social behaviour). The notice of termination terms of the part 4 tenancy do not apply for the duration of a fixed term lease.

If the landlord wishes to issue a notice of eviction for non-payment of rent then they must follow the legal procedure. Based on what has been described in this thread, and based on the email that they sent to the tenant, I do not believe that this process has been properly followed (or, more specifically, I do not get the impression that it is the landlords intention to follow it properly based on what they said in the email).

What the landlord said in the email was that an agent would serve notice. As I said earlier I think it's premature to accuse the landlord of anything when all he has done is send an email stating that an agent will serve notice.

You have drawn my attention to something I was not aware of regarding the concurrent running of a fixed term lease and a part 4 tenancy. Particularly the fact that a landlord cannot rely on Section 34 until the lease has expired.

Regardless of the duration of the letting, the notice of Termination must specify the reason for the termination. If the reason is for arrears of rent, then the 14 day warning letter above must still be sent in advance of the notice. Unless it is specified as a condition of the letting agreement,
the tenant is generally not entitled to an opportunity to remedy the breach prior to service of the notice.

Generally, the reasons under section 34 are not valid grounds for terminating a fixed term tenancy. They can only be used if they have been incorporated as conditions in the fixed term letting agreement.

http://www.prtb.ie/docs/default-source/good-landlord-guides/good-landlord-guide-%28english%29.pdf?sfvrsn=4

I guess we need to see the lease before we can find out if the tenant is allowed a chance to remedy the rent arrears. I would have thought that the opposite would be the case i.e. that the Acts would favour the tenant by allowing them all the rights afforded them under a part 4 but they don't in this case.

djimi

Páid wrote: »

What the landlord said in the email was that an agent would serve notice. As I said earlier I think it's premature to accuse the landlord of anything when all he has done is send an email stating that an agent will serve notice.

Like I said I could be reading it wrong, but my reading of that email is the landlord intending to issue a notice of eviction, effective immediately, which would be served in writing over the next few days. Its the part about it being effective from 6th June that changes the meaning for me; had he left that out then it could be argued that the email is the notice of arrears.

Páid wrote: »

http://www.prtb.ie/docs/default-source/good-landlord-guides/good-landlord-guide-%28english%29.pdf?sfvrsn=4

I guess we need to see the lease before we can find out if the tenant is allowed a chance to remedy the rent arrears. I would have thought that the opposite would be the case i.e. that the Acts would favour the tenant by allowing them all the rights afforded them under a part 4 but they don't in this case.

I dont think the terms of the lease have any bearing on it. There are a very specific set of procedures in place which must be followed when dealing with non-payment of rent and its my understanding that these apply regardless of lease type or terms. I dont believe that the landlord can deny the tenant their right to the 14 day notice of arrears and the chance to remedy the arrears in this time.

djimi

Regardless of the duration of the letting, the notice of Termination must specify the reason for the termination. If the reason is for arrears of rent, then the 14 day warning letter above must still be sent in advance of the notice. Unless it is specified as a condition of the letting agreement, the tenant is generally not entitled to an opportunity to remedy the breach prior to service of the notice.

Reading that back, it doesnt actually make a lot of sense. In one line it says that a 14 day warning letter must be issued in advance of termination notice for non-payment of rent, then in the next line it says that unless its specified in the lease the tenant is not entitled to an opportunity to remedy the breach.

I think they have confused the matter with the way they have written that paragraph. Its my understanding that 14 days notice of arrears is a seperate notice that specifically deals with the non-payment of rent, and that this notice is manditory. I could be wrong about that, but I have a feeling that the PRTB have confused the matter with the way that they have worded the document. When I get a moment I will look through the RTA and see if it is any clearer.

Páid

The procedure varies depending on whether its a part 4 or a fixed term.

For a part 4 tenancy, you have to give a Notice of Breach of Obligation, verbally or in writing before you give the Notice of Arrears. The tenant has an opportunity to resolve the breach before the Notice of Arrears is served.

The way I'm reading it, after the fixed term expires on July 13th the landlord must serve the Notice of Arrears without having first served the Notice of Breach of Obligation.

Páid

In any event I think it would be in the OP's interest to remedy the rent arrears situation as soon as possible. If that happens the landlord cannot proceed.