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Owner Occupied Question

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  • 17-02-2014 10:32pm
    #1
    Thargor
    Registered Users Posts: 17,937 ✭✭✭✭


    If you had a tenant that wasnt paying, instead of the PTRB route could the landlord simply move into the house, get a few bank statements as proof sent there and then kick them after a weeks notice or whatever the way live-in landlords can?


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    #2
    Moonbeam
    Moderators, Education Moderators, Society & Culture Moderators Posts: 18,953 Mod ✭✭✭✭Moonbeam


    It depends ,do they rent a room or the house?


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    #3
    djimi
    Registered Users Posts: 13,237 ✭✭✭✭djimi


    No. If the tenant is renting the house then you cannot just move yourself in or change the lease type.


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    #4
    Thargor
    Registered Users Posts: 17,937 ✭✭✭✭Thargor


    Renting a room in a 4 bed sorry should have said, all rooms occupied by individual tenants.


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    #5
    odds_on
    Closed Accounts Posts: 1,869 ✭✭✭odds_on


    Thargor wrote: »
    If you had a tenant that wasnt paying, instead of the PTRB route could the landlord simply move into the house, get a few bank statements as proof sent there and then kick them after a weeks notice or whatever the way live-in landlords can?

    If you have a tenant - Is the tenancy registered with the PRTB?
    Is it a Fixed Term, Periodic or Part 4 tenancy?
    Do you have a written agreement with the tenant?
    Thargor wrote: »
    Renting a room in a 4 bed sorry should have said, all rooms occupied by individual tenants.

    Is the house let as a single unit or does each tenant have his/her own lease agreement?


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    #6
    Thargor
    Registered Users Posts: 17,937 ✭✭✭✭Thargor


    Each tenant individual agreements, nothing written down, nothing registered, tax does get paid though so all above board in those areas...


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    #7
    The_Morrigan
    Registered Users Posts: 9,368 ✭✭✭The_Morrigan


    Thargor wrote: »
    Each tenant individual agreements, nothing written down, nothing registered, tax does get paid though so all above board in those areas...

    It can't be all above board if you've not registered the tenancies.

    What do you mean by nothing written down?


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    #8
    Greenmachine
    Registered Users Posts: 5,063 ✭✭✭Greenmachine


    Agreed tenancies should be registered with the tenancy board for it to be above board.


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    #9
    MouseTail
    Registered Users Posts: 1,663 ✭✭✭MouseTail


    Was it the LLs Principal Private Residence? Did he always have a room there, or move back in when one of the tenants vacated? If the latter, Im not sure which has precedence, the fact he is now an owner occupier or the leases. I would think specialist legal advice is required.


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    #10
    relax carry on
    Registered Users Posts: 4,081 ✭✭✭relax carry on


    Thargor wrote: »
    Each tenant individual agreements, nothing written down, nothing registered, tax does get paid though so all above board in those areas...

    If the tennancies aren't registered with the PRTB, then you can't claim the 75% of mortgage interest as a deduction in arriving at your taxable figure. If you were audited going back over a number of years and no PRTB certs were available, then your rental calculations would be be reworked to remove the mortgage interest which could leave you with a nice liability depending on the amounts involved.


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    #11
    Thargor
    Registered Users Posts: 17,937 ✭✭✭✭Thargor


    Stop freaking out and just answer the question please :P

    There are no leases, there is no mortgage, its just a tenant renting a room for cash which is declared to revenue. I know they have PTRB protection even though its not registered. I just want to know if a non-paying tenant can be stripped of this protection and removed if the owner moves back into the house?


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    #12
    murphaph
    Registered Users Posts: 19,022 ✭✭✭✭murphaph


    I doubt there's anything explicit in the legislation so you'd need to look at case law. The tenant would presumably have some paperwork (phone bill etc.) going back to before the LL moved in so this could be used to establish that "he was there first" and so it's not a licence but a tenancy.

    It's certainly on the edge of legal I would have thought.


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    #13
    Bepolite
    Closed Accounts Posts: 2,737 ✭✭✭Bepolite


    Thargor wrote: »
    Stop freaking out and just answer the question please :P

    There are no leases, there is no mortgage, its just a tenant renting a room for cash which is declared to revenue. I know they have PTRB protection even though its not registered. I just want to know if a non-paying tenant can be stripped of this protection and removed if the owner moves back into the house?

    The reason people are asking you questions is because nothing you say makes any sense.

    If there is someone living in the house it's a lease, it may be an oral one, but it's a lease. This needs to be registered with the PRTB.

    If the person is there on license (e.g. rent a room) then you can kick them out but you need to be living there in some capacity. You're also probably over paying on tax if you're declaring everything as there is a 10K credit which you don't have to pay tax on.

    Your story doesn't add up - you're looking for advice on the internet in regards to running your business, which looks like it's run pretty badly. You're also looking for advice on potentially illegally evicting a tenant. I've no love for freeloading tenants that don't pay rent. I've less for shabby landlords that don't know what they're doing. Get proper legal advice before one of the tenants ends up owning the house.


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    #14
    The_Morrigan
    Registered Users Posts: 9,368 ✭✭✭The_Morrigan


    Under normal circumstances, the advice would be for the landlord to issue a 14 days letter of arrears and start the eviction process, go through the PRTB process etc. As you're not registered you can't avail of this procedure and what your asking is a quick fix outside of the provisions outlined under tenancy legislation.

    I'd advise you to contact a solicitor and seek proper legal advice as my gut is saying, no you can't.


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    #15
    djimi
    Registered Users Posts: 13,237 ✭✭✭✭djimi


    I have a feeling that where a tenant is renting a room and has not been granted exclusive use of the entire property, they are a licensee and not a tenant regardless of whether or not the landlord is living in the property. I must admit though I dont fully understand how this arrangement works, and as such it might be worth contacting Threshold/PRTB and see what they reckon.


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    #16
    djimi
    Registered Users Posts: 13,237 ✭✭✭✭djimi


    See here:

    http://www.prtb.ie/docs/default-source/registration-docs/licensees.pdf?sfvrsn=2
    What is a Licensee?

    A licensee is a person who occupies accommodation under licence. Licensees can arise in all
    sorts of accommodation but most commonly in the following four areas;

    (b) persons staying in hotels, guesthouses, hostels, etc.,

    (b) persons sharing a house/apartment with its owner e.g. under the ‘rent a room’ scheme
    or ‘in digs’,

    (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

    (d) persons staying in rented accommodation at the invitation of the tenant.


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    #17
    Bepolite
    Closed Accounts Posts: 2,737 ✭✭✭Bepolite


    djimi wrote: »
    See here:

    http://www.prtb.ie/docs/default-source/registration-docs/licensees.pdf?sfvrsn=2

    Bear in mind, as is alluded to at the bottom of that document, the courts look at the substance of the agreement not it's form. In other words if it walks like a duck and quacks like a duck, it's a duck.


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    #18
    The_Morrigan
    Registered Users Posts: 9,368 ✭✭✭The_Morrigan


    Bepolite wrote: »
    Bear in mind, as is alluded to at the bottom of that document, the courts look at the substance of the agreement not it's form. In other words if it walks like a duck and quacks like a duck, it's a duck.

    ...and that is to avoid landlords not playing by the rules and then expecting the rules to be available to them when convenient.


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    #19
    djimi
    Registered Users Posts: 13,237 ✭✭✭✭djimi


    Bepolite wrote: »
    Bear in mind, as is alluded to at the bottom of that document, the courts look at the substance of the agreement not it's form. In other words if it walks like a duck and quacks like a duck, it's a duck.

    I think the link that I put up assumes that there is a written agreement in place that specifically states that exclusive use of the property is not granted, and that the landlord still has a hold over the property (ie retains a bedroom or something to that effect).

    Where this is going to get tricky for the OP is that they seemingly have nothing in writing, so its a verbal agreement, and if non-exclusive use is something that needs to be specified in order for a licensee to be in effect rather than a tenancy then this doesnt really apply to the OPs situation.


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    #20
    Bepolite
    Closed Accounts Posts: 2,737 ✭✭✭Bepolite


    djimi wrote: »
    I think the link that I put up assumes that there is a written agreement in place that specifically states that exclusive use of the property is not granted, and that the landlord still has a hold over the property (ie retains a bedroom or something to that effect).

    Where this is going to get tricky for the OP is that they seemingly have nothing in writing, so its a verbal agreement, and if non-exclusive use is something that needs to be specified in order for a licensee to be in effect rather than a tenancy then this doesnt really apply to the OPs situation.

    It's simpler than that to be fair and is a legal principle that predates most of the current legislation. The landlord would have to show that the tenant have non-exclusive access. The best way to do this is be in occupation. He can't simply put it into an agreement - that would be overridden by substance over form.

    A verbal agreement isn't fatal either, just makes the outcome more unpredictable.

    The proper way to do this would be to have one tenant who then rents out bedrooms to others, it's actually only dawned on me now why LL enter into this relationship with a 'chief tenant' and then let them collect the rent etc. It has the effect of rendering the other occupants licensees.


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    #21
    Mrs OBumble
    Registered Users Posts: 25,957 ✭✭✭✭Mrs OBumble


    Bepolite wrote: »
    it's actually only dawned on me now why LL enter into this relationship with a 'chief tenant' and then let them collect the rent etc. It has the effect of rendering the other occupants licensees.

    Indeed. And it's the only way I'd do a house-share as a tenant. Either I'm the head-tenant and take responsibility for the lease and for choosign other tenants and kicking out the plonkers ... or I'm a licensee and can walk away with zero notice if I have to.

    The jointly-signed-lease option is a nightmare IMHO: I could be co-tenant with someone who turns out to be so badly-behaved that I can't live there any more, fully responsible for paying their rent. Ugh.


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    #22
    Pawwed Rig
    Moderators, Category Moderators, Home & Garden Moderators, Recreation & Hobbies Moderators Posts: 22,380 CMod ✭✭✭✭Pawwed Rig


    Bepolite wrote: »
    If the person is there on license (e.g. rent a room) then you can kick them out but you need to be living there in some capacity. You're also probably over paying on tax if you're declaring everything as there is a 10K credit which you don't have to pay tax on.

    That is a dangerous bit of advice. There is no 10K credit. There is a 10K limit where a tenant is on the rent a room scheme that is not the case here. Once the 10K is exceeded the whole amount is taxable, not just the excess.


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    #23
    odds_on
    Closed Accounts Posts: 1,869 ✭✭✭odds_on


    Tenancies may be written, oral or implied. As the OP is not resident in the property it is highly unlikely that there are any licence agreements. Therefore, the tenants are covered under the RTA 2004 and the OP, as landlord, must comply with all landlord obligations.

    Depending on how long the tenant in question has been in the property will also depend on what type of tenancy agreement he has. If
    1. there was a verbal agreement between the landlord and tenant as to how long he could reside in the house, then he has a fixed term agreement.
    2. If there was no fixed term agreement, then, if said tenant has been in the house for less than 6 months, he has a periodic agreement.
    3. If the tenant has been in the property for more than 6 months then he has a Part 4 tenancy.

    In the case of a breach of obligations (except rent arrears) there is a notice period, which may or may not have to be preceded by a warning notice of the breach before a valid NoT may be served.

    In the case of rent arrears, a notice of termination must be preceded by a 14 days notice of rent arrears. Again, depending on the type of lease agreement, the 14 day notice may have to be preceded by a notice of rent arrears.

    It would seem that in the OP's case, he actually has 4 different agreements/tenancies and as such the PRTB is due 4 registrations, which are now overdue and therefore a total of 4 times the late fee of 180 euros are due to the PRTB.


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    #24
    odds_on
    Closed Accounts Posts: 1,869 ✭✭✭odds_on


    Thargor wrote: »
    Stop freaking out and just answer the question please :P

    There are no leases, there is no mortgage, its just a tenant renting a room for cash which is declared to revenue. I know they have PTRB protection even though its not registered. I just want to know if a non-paying tenant can be stripped of this protection and removed if the owner moves back into the house?
    If there is one tenancy in place then the landlord CANNOT move back into the house as he has no right to enter the house without the express permission of the tenants.

    It would be a breach of the landlord's obligations in not permitting the tenants to enjoy peaceful and exclusive enjoyment of the property. A case brought to the PRTB for this breach would almost certainly award damages to the tenants in the 4 figure sum - to each tenant.


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    #25
    Bepolite
    Closed Accounts Posts: 2,737 ✭✭✭Bepolite


    Pawwed Rig wrote: »
    That is a dangerous bit of advice. There is no 10K credit. There is a 10K limit where a tenant is on the rent a room scheme that is not the case here. Once the 10K is exceeded the whole amount is taxable, not just the excess.

    Poor choice of words and not really advice if you look at the tenner of my post. To be fair I'm not an accountant, I would engage the services of one if and when I become a LL though. Thank you for the correction.


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