Landlord in Receivership Deposit issue

kruka

My mum and her husband are in their 60's and 70's. They arrived home to find that the house they've been privately renting for 14 odd years has gone into the receivership. Their landlord was appointed a receiver in December. When they first paid a deposit for the house it was paid to an Estate Agent. The deposit was in Punts and would equate to approximately €1,400 in today's money. The landlord then ceased dealing with the estate agent a few years ago and took ownership and control of the rent himself. My mum and her husband then paid the rent directly into his bank account and then later his wife's account.

The issue now is that they have to vacate by the end of May. They haven't found a new place to live so they're at the prospect of being

A) without this deposit as the receiver and current Estate agent that the receiver has appointed are refusing to answer calls or emails regarding the deposit. They even threatened legal action/eviction when their accounts department couldn't locate a payment which was made to them days before. They only contact when they feel they have to and ignore all correspondence which we are sending

homeless as they have yet to find a new place to live in and have 30 days to find a deposit and a new place to live

They have never missed a payment and both suffer from different health issues mainly due to age and the stress of this whole thing
.
My mother has contacted Threshold but nobody is offering any solution to them. They just brushed them off

Is there any advise that people can give as to how they can recoup the deposit (which my mum still has the original receipt for? We're really desperate!

OldNotWIse

kruka wrote: »

My mum and her husband are in their 60's and 70's. They arrived home to find that the house they've been privately renting for 14 odd years has gone into the receivership. Their landlord was appointed a receiver in December. When they first paid a deposit for the house it was paid to an Estate Agent. The deposit was in Punts and would equate to approximately €1,400 in today's money. The landlord then ceased dealing with the estate agent a few years ago and took ownership and control of the rent himself. My mum and her husband then paid the rent directly into his bank account and then later his wife's account.

The issue now is that they have to vacate by the end of May. They haven't found a new place to live so they're at the prospect of being

A) without this deposit as the receiver and current Estate agent that the receiver has appointed are refusing to answer calls or emails regarding the deposit. They even threatened legal action/eviction when their accounts department couldn't locate a payment which was made to them days before. They only contact when they feel they have to and ignore all correspondence which we are sending

homeless as they have yet to find a new place to live in and have 30 days to find a deposit and a new place to live

They have never missed a payment and both suffer from different health issues mainly due to age and the stress of this whole thing
.
My mother has contacted Threshold but nobody is offering any solution to them. They just brushed them off

Is there any advise that people can give as to how they can recoup the deposit (which my mum still has the original receipt for? We're really desperate!

You say they have until the end of May to vacate? when were they served notice to quit? If they have been renting for 14 years they are entitled to a reasonable notice period, I am not sure exactly how long but I will check.

Edit: 112 days

LL employing typical bully boy tactics imo. It must be very stressful. Best thing you can do is draft up a letter stating your (at least, your mum's rights) and let them know you will not be bullied. Make sure to send by reg post - they sound like the type who might lose stuff.

kruka

Thanks OldNotWIse, they were served with the notice at the beginning of January. The thing is they've been dealing with the receivers and not the landlord and have been paying the receivers the rent. From the past threads in similar situations it sounds as if the receivers are just there to take money not give back (the deposit). I don't know legally if the first Estate Agent whom they paid the deposit to, is legally obliged to give it back or the landlord?

OldNotWIse

kruka wrote: »

Thanks OldNotWIse, they were served with the notice at the beginning of January. The thing is they've been dealing with the receivers and not the landlord and have been paying the receivers the rent. From the past threads in similar situations it sounds as if the receivers are just there to take money not give back (the deposit). I don't know legally if the first Estate Agent whom they paid the deposit to, is legally obliged to give it back or the landlord?

Have they been in touch with the estate agent? I'm surprised about Threshold, I've always found them very helpful. Could you try them again maybe?

toughapple

OldNotWIse wrote: »

Have they been in touch with the estate agent? I'm surprised about Threshold, I've always found them very helpful. Could you try them again maybe?

Threshold are no good for receivers. My friend has a cousin who is a barrister. He said that the receiver is getting the rent and is therefore the landlord as far as the residential tenancies act is concerned. Neither Threshold or the PRTB are willing tio offend the big receiver firms and push this however. The barrister says he is waiting for someone to send him a case so that he can bring it to the courts and have the Act interpreted so as to make receivers liable to return the deposits. So far, no one has.

OldNotWIse

toughapple wrote: »

Threshold are no good for receivers. My friend has a cousin who is a barrister. He said that the receiver is getting the rent and is therefore the landlord as far as the residential tenancies act is concerned. Neither Threshold or the PRTB are willing tio offend the big receiver firms and push this however. The barrister says he is waiting for someone to send him a case so that he can bring it to the courts and have the Act interpreted so as to make receivers liable to return the deposits. So far, no one has.

What a godawful mess Sorry I couldn't be of more help OP

kruka

toughapple wrote: »

Threshold are no good for receivers. My friend has a cousin who is a barrister. He said that the receiver is getting the rent and is therefore the landlord as far as the residential tenancies act is concerned. Neither Threshold or the PRTB are willing tio offend the big receiver firms and push this however. The barrister says he is waiting for someone to send him a case so that he can bring it to the courts and have the Act interpreted so as to make receivers liable to return the deposits. So far, no one has.

I could send him this instance as a case if he wants? I'm sure the courts would love to hear how the receivers are treating OAPS with bully boy tactics!

Webster29

Not to derail the thread, but this situation of receivers taking over tenancies needs to be litigated and properly resolved. I know the IBF have a leaflet essentially saying tenants have few rights other than pay up and/or get out, but I wouldn't be taking a leaflet from a partisan organisation as a proper statement of the law.

As I see it:

A lease is an estate in property. It is more than a contract in the sense that your mobile phone contract is a contract for services. It is a "superior" estate to the freehold in that it confers a right to possession, to the exclusion of all other parties, including the freeholder. When a receiver is appointed, he is appointed as agent of the landlord (check any mortgage document). He takes what the asset that landlord has. The landlord has divested himself of the leasehold interest and possession. The landlord is only entitled to do what the freeholder can, manage the asset (ie, become the landlord, collect rent, repay deposits etc) as if he were landlord. He may sell the landlord's asset - the freehold subject to the lease and without possession. He may also terminate the lease on the same grounds as the landlord could - breach in the case of a fixed term, or under the RTA for a Part 4. He can't just tell a tenant to move on because a reciver is appointed.

Then some will argue that the landlord got a residential mortgage and the bank never knew of the lease so they never consented. The receiver can only take what the landlord has - the freehold subject to the lease. If the landlord acted in breach of his mortgage and the bank makes a loss (by getting a lower price for sale without vacant possession) then the bank can sue the landlord. The tenant still has an estate in land which gives a right to possession. The receiver has no right to possession because the landlord divested himself of it before the receiver was appointed. The landlord may have agreed under the mortgage to confer possession upon appointment of receiver, but they are in breach of that contract as they do not have possession to give. This does not affect the tenant.

We could take it further and say that a mortgage is legally a transfer of title to the bank, subject to a right to redeem on repayment. So if the bank don't consent to the lease the landlord has no right to confer a leasehold interest on another and the lease is not valid. At this point, I would be raising three arguments against the above (i) in the case of registered land, "mortgages" are in fact charges. The charge is noted on the folio, but there is no transfer of title and the landlord remains registered owner OR (ii) if we were to take that argument strictly, the bank should be paying property tax, water charges etc since they own the legal interests OR (iii) if all else fails, the tenant is a bone fide purchaser (of the leasehold estate) for value without notice.

The above is how it would work for commercial property, so why not private tenancies?

Webster29

Not to derail the thread, but this situation of receivers taking over tenancies needs to be litigated and properly resolved. I know the IBF have a leaflet essentially saying tenants have few rights other than pay up and/or get out, but I wouldn't be taking a leaflet from a partisan organisation as a proper statement of the law.

As I see it:

A lease is an estate in property. It is more than a contract in the sense that your mobile phone contract is a contract for services. It is a "superior" estate to the freehold in that it confers a right to possession, to the exclusion of all other parties, including the freeholder. When a receiver is appointed, he is appointed as agent of the landlord (check any mortgage document). He takes what the asset that landlord has. The landlord has divested himself of the leasehold interest and possession. The landlord is only entitled to do what the freeholder can, manage the asset (ie, become the landlord, collect rent, repay deposits etc) as if he were landlord. He may sell the landlord's asset - the freehold subject to the lease and without possession. He may also terminate the lease on the same grounds as the landlord could - breach in the case of a fixed term, or under the RTA for a Part 4. He can't just tell a tenant to move on because a reciver is appointed.

Then some will argue that the landlord got a residential mortgage and the bank never knew of the lease so they never consented. The receiver can only take what the landlord has - the freehold subject to the lease. If the landlord acted in breach of his mortgage and the bank makes a loss (by getting a lower price for sale without vacant possession) then the bank can sue the landlord. The tenant still has an estate in land which gives a right to possession. The receiver has no right to possession because the landlord divested himself of it before the receiver was appointed. The landlord may have agreed under the mortgage to confer possession upon appointment of receiver, but they are in breach of that contract as they do not have possession to give. This does not affect the tenant.

We could take it further and say that a mortgage is legally a transfer of title to the bank, subject to a right to redeem on repayment. So if the bank don't consent to the lease the landlord has no right to confer a leasehold interest on another and the lease is not valid. At this point, I would be raising three arguments against the above (i) in the case of registered land, "mortgages" are in fact charges. The charge is noted on the folio, but there is no transfer of title and the landlord remains registered owner OR (ii) if we were to take that argument strictly, the bank should be paying property tax, water charges etc since they own the legal interests OR (iii) if all else fails, the tenant is a bone fide purchaser (of the leasehold estate) for value without notice.

The above is how it would work for commercial property, so why not private tenancies?

Edit - the above is not intended in any way to offer legal advice to the OP. I just think that this issue needs to be properly explored and discussed and am interested in what Boardies think on the points raised. Perhaps it might be better in its own thread of the Mods so agree.

chopper6

The landlord is liable.

Contact him directly and if he is unwilling to pay take him to court.

runawaybishop

chopper6 wrote: »

The landlord is liable.

Contact him directly and if he is unwilling to pay take him to court.

You cant get blood from a stone, or money from someone who is bankrupt.

Op: After having had valid notice served in January the tenants need to move out. The deposit is unlikely to be returned. FYI, commonly people advise not paying the last month or twos rent to recoup the deposit, but this could end in legal action against the tenants.

NewApproach

Don't waste your time or energy dealing with the Landlord anymore, he is essentially out of the picture. Speak worth the Receivers. They will not want to break the law in vacating the house as it all needs to be above board. State why you should get 112 days notice, then deal with the issue of the deposit. Often the receiver will be willing to forego the final rent payment in lieu of returning the deposit, which they have no obligation to.

toughapple

kruka wrote: »

I could send him this instance as a case if he wants? I'm sure the courts would love to hear how the receivers are treating OAPS with bully boy tactics!

I am sure this is the kind of case that he would take. Have the OAP's a solicitor?

runawaybishop

NewApproach wrote: »

Don't waste your time or energy dealing with the Landlord anymore, he is essentially out of the picture. Speak worth the Receivers. They will not want to break the law in vacating the house as it all needs to be above board. State why you should get 112 days notice, then deal with the issue of the deposit. Often the receiver will be willing to forego the final rent payment in lieu of returning the deposit, which they have no obligation to.

They got notice in the beginning of January.

Ray Palmer

Until the law is changed or there is a precedent set by some court case the tenants are on the list of creditors. All the talk about what somebody thinks or believes is moot.

As for the belief PRTB or Threshold are somehow afraid to do anything is just plain silly. They can't do anything as there is no law/legality to cover this. Their hands are tied.

The bank is not being a bully they have their job to do. The law is clear on their responsibilities which they do have to adhere to which they are doing. The original owner has your deposit not the bank nor the original estate agent.

I can gather the receiver said they are not responsible for the deposit and the people insisted on either a sob story about how they can't/won't move or how they should get their deposit back. The response was probably blunt and to the point that they have to move and aren't getting their deposit from them. Nothing bullying about it just the reality.

I get people get defensive about elderly relatives and their own children but reality doesn't change once you are emotionally connected nor does it mean you are right.

Claw Hammer

Ray Palmer wrote: »

Until the law is changed or there is a precedent set by some court case the tenants are on the list of creditors. All the talk about what somebody thinks or believes is moot.

As for the belief PRTB or Threshold are somehow afraid to do anything is just plain silly. They can't do anything as there is no law/legality to cover this. Their hands are tied.

The bank is not being a bully they have their job to do. The law is clear on their responsibilities which they do have to adhere to which they are doing. The original owner has your deposit not the bank nor the original estate agent.

I can gather the receiver said they are not responsible for the deposit and the people insisted on either a sob story about how they can't/won't move or how they should get their deposit back. The response was probably blunt and to the point that they have to move and aren't getting their deposit from them. Nothing bullying about it just the reality.

I get people get defensive about elderly relatives and their own children but reality doesn't change once you are emotionally connected nor does it mean you are right.

The PRTBs hands are not tied. They just pretend that they are. Nobody has taken a case under the existing law yet. The PRTB wrongly believed things before until the courts told them otherwise. Threshold are taking their cue from the PRTB. What is needed is someone with the gumption to let a case go to the courts.

Ray Palmer

Claw Hammer wrote: »

The PRTBs hands are not tied. They just pretend that they are. Nobody has taken a case under the existing law yet. The PRTB wrongly believed things before until the courts told them otherwise. Threshold are taking their cue from the PRTB. What is needed is someone with the gumption to let a case go to the courts.

Says you. PRTB remit is to follow the law as it stands. As it stands the deposit is the original owner's responsibility. PRTB are not designed to set legal president. I am not aware of any court case they have brought to clarify law.
Even if a case does go to court there is no guarantee it will change anything. The suggestion here is that they should and do bring such cases to court. That is news to me. So if you are saying they are afraid to do so can you point to where it says they have and do such things? Otherwise it is your word that this is what they are meant to do and I don't have any reason to believe that.

Claw Hammer

Ray Palmer wrote: »

Says you. PRTB remit is to follow the law as it stands. As it stands the deposit is the original owner's responsibility. PRTB are not designed to set legal president. I am not aware of any court case they have brought to clarify law.
Even if a case does go to court there is no guarantee it will change anything. The suggestion here is that they should and do bring such cases to court. That is news to me. So if you are saying they are afraid to do so can you point to where it says they have and do such things? Otherwise it is your word that this is what they are meant to do and I don't have any reason to believe that.

What about this case?
http://www.courts.ie/Judgments.nsf/0/36B3EBDF059A5BE1802578380040FDB5
The PRTB got it wrong and had to have the legislation changed. It is arguable that they are getting it wrong with regard to receivers as well. There are may things the PRTB does which are questionable and it is up to the people affected to challenge them.

Ray Palmer

Claw Hammer wrote: »

What about this case?
http://www.courts.ie/Judgments.nsf/0/36B3EBDF059A5BE1802578380040FDB5
The PRTB got it wrong and had to have the legislation changed. It is arguable that they are getting it wrong with regard to receivers as well. There are may things the PRTB does which are questionable and it is up to the people affected to challenge them.

They didn't bring the case, a judicial review happened. Which proves my point they don't bring cases. Can you find one where they brought a case?

Claw Hammer

Ray Palmer wrote: »

They didn't bring the case, a judicial review happened. Which proves my point they don't bring cases. Can you find one where they brought a case?

THe PRTB were the applicant for the Judicial Review! Judicial Reviews don't just happen. Someone has to seek them. In that case it was the PRTB and they got it WRONG.

kruka

Ray Palmer wrote: »

The bank is not being a bully they have their job to do. The law is clear on their responsibilities which they do have to adhere to which they are doing. The original owner has your deposit not the bank nor the original estate agent.

I can gather the receiver said they are not responsible for the deposit and the people insisted on either a sob story about how they can't/won't move or how they should get their deposit back. The response was probably blunt and to the point that they have to move and aren't getting their deposit from them. Nothing bullying about it just the reality.

I get people get defensive about elderly relatives and their own children but reality doesn't change once you are emotionally connected nor does it mean you are right.

Actually there was bully tactics used. We have asked numerous times about the deposit but none of the emails were answered with the exception of one which queried where the rent was and whether it was paid. Our response was clear and precise - "it's paid, it was lodged on X date in X bank at X time. Can you clarify when the deposit will be returned.." The response my Mam got was "We cannot locate your payment, you're being issued with a non payment of rent letter which may result in eviction. Please pay the outstanding arrears immediately or we will take further action.. It wasn't until the actual bank giro details were given did they realise that they were being very heavy handed and completely in the wrong. They found the payment and were very quick to dismiss their previous email as well as issue an apology yet they still refused to enter any discussion surrounding the deposit.

kruka

toughapple wrote: »

I am sure this is the kind of case that he would take. Have the OAP's a solicitor?

They would have access to one if needed yes

Thomas D

Don't pay your last month's rent. Simple. Better yet, stop paying rent altogether.

The_Morrigan

Thomas D wrote: »

Don't pay your last month's rent. Simple. Better yet, stop paying rent altogether.

A reminder to all that this type of advice is against the charter, any further encouragement of breaches to the RTA will result in infractions/bans being handed out.

miss no stars

kruka wrote: »

they still refused to enter any discussion surrounding the deposit.

They don't have it.


You've waited til the 11th hour to sort this out... Continually asking them about it doesn't count as doing anything about the situation. And repeating the same exercise when nothing's changed and expecting a different result is the very definition of madness (i.e. asking them repeatedly about the deposit and expecting them to engage despite them not engaging time and time again).

Lesson for the future is deal with it early. You've pretty much no time now to recoup any monies. You'll just have to find enough for a deposit somewhere else and move out when you're due to move out.

By all means, continue to bash your head against a brick wall trying to get the receiver to talk about the deposit, but they simply don't have it so won't be returning it and there's no precedent to make them find and return it.

It's a horrible situation to be in and, don't get me wrong, I feel desperately bad for your folks. Maybe talk to the CWO about an emergency deposit and the fact that they're now homeless? Or maybe loan them as much as you can towards a deposit?

Bigcheeze

The_Morrigan wrote: »

A reminder to all that this type of advice is against the charter, any further encouragement of breaches to the RTA will result in infractions/bans being handed out.

And giving legal advice is against the charter.

It has not been established if withholding rent where a receiver is incapable of returning a deposit is in breach of the RTA because the legislation does not contemplate this scenario.

People need to look after their interests in these scenarios and your advice can at best be described as naieve.

The_Morrigan

Bigcheeze wrote: »

And giving legal advice is against the charter.

It has not been established if withholding rent where a receiver is incapable of returning a deposit is in breach of the RTA because the legislation does not contemplate this scenario.

People need to look after their interests in these scenarios and your advice can at best be described as naieve.

It is also against the charter to argue a mod instruction on thread.