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5 month lease. Issued with notice of termination before I acquired legal rights

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    #62
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    4ensic15 wrote: »
    A notice of termination is not a simp,le doculent. It has to conform exactly to the requirements of the Act.
    I haven't seen the notice of termination but many of them contain errors which cause them to be invalidated. In an event if the o/p challenges it the letting continues until the issue is determined. That could be after an adjudication, a tribunal hearing and a High Court hearing. There is also an open question if the letting continues into a 7th month because of the challenge that Part 4 rights do accrue. There has been no court decision on this yet.

    Termination is a simple document. It states that the lease is terminated giving the required notice. A lease can be terminated without reason in the first 6 months. Op confirmed that it was signed and that she has recieved it, the term is ending and it is well before the 6 month time frame so, that's that. Are you for real on the High Court? It would cost the op thousands and she would be liable for costs of both parties in the event of it being unsuccessful, that is plain silly.


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    #63
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    The fact that the landlord is aware of the 6 month rule, only allowed a 5 month lease and gave the tenant adequate notice would suggest they've done their homework enough to be able to satisfy the legal requirements for the notice of termination.


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    #64
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Graham wrote: »
    The fact that the landlord is aware of the 6 month rule, only allowed a 5 month lease and gave the tenant adequate notice would suggest they've done their homework enough to be able to satisfy the legal requirements for the notice of termination.

    Who knows? Still plenty of opportunity for the tenant to string it out. It is also quite tricky to get it right. The notice can't be served until after the 5 month lease has expired. The Notice period of 28 days doesn't start until the day after it is received by the tenant and it must end before the 6 months is up thereby only leaving a 1 day window of opportunity.


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    #65
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    4ensic15 wrote: »
    Who knows? Still plenty of opportunity for the tenant to string it out.

    No there isn't, without overstaying and being evicted. Overstaying in this case does not impart part4 rights, it does ensure a messy eviction process and no reference. The op made a simple but plainly obvious mistake in signing a lease of less than 6 months duration.

    As Graham posted, the op should spend the time looking for a new property and ensure a good reference is recieved rather than accepting waffle about High Courts and Tribunals. The law on this is pretty simple and clear, before the 6 month mark the tenant does not have part 4 rights, the lease is up and timely notice has been served. End of.


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    #66
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    4ensic15 wrote: »
    The notice can't be served until after the 5 month lease has expired.

    Source?


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    #67
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    davo10 wrote: »
    Are you for real on the High Court? It would cost the op thousands and she would be liable for costs of both parties in the event of it being unsuccessful, that is plain silly.

    Presumably such a tenant has no assets. Apart from the super-rich, the only people in Ireland who can actually afford a High Court action are those with no assets.


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    #68
    athtrasna
    Closed Accounts Posts: 13,420 ✭✭✭✭athtrasna


    Mod note

    4ensic15 I'm not sure why you're determined to try to find a loophole in the notice of termination but enough is enough.

    Other posters, if you have an issue with a post please use the report post function, accusing a poster of trolling is not on.


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    #69
    [Deleted User]
    Posts: 24,714 ✭ [Deleted User]


    4ensic15 wrote: »
    Who knows? Still plenty of opportunity for the tenant to string it out. It is also quite tricky to get it right. The notice can't be served until after the 5 month lease has expired. The Notice period of 28 days doesn't start until the day after it is received by the tenant and it must end before the 6 months is up thereby only leaving a 1 day window of opportunity.

    I refuse to believe that too. If you give a lease for 5 months it means you want someone in your property for 5 months not 6 and if what your are saying is true you are forced to allow someone to stay longer than you want.

    It should definitely be possible to give notice so that the end of the lease is the move out day.


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    #70
    salamanca22
    Registered Users Posts: 1,179 ✭✭✭salamanca22


    The PRTB Adjudicators have been known the take a grim view on giving notice before a fixed term lease has ended. I cannot find it now but will keep searching but I read some literature in the past not so long ago that backed up this point. Not that this is any good to the OP's situation anyway as it seems the notice was given after the fixed term lease has ended.

    Another thing to note is that notice can be given up to the day before the sixth month starts and the tenant will not get any part 4 rights going into the sixth month so long as the tenancy is terminated at the end of the notice.


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    #71
    dori_dormer
    Registered Users Posts: 1,919 ✭✭✭dori_dormer


    Any lease I've seen ( now they were one year leases) state that the notice of intention to stay, or leave must be given 28 days before the en doc the lease. I think it's quite common. It gives the tenant and landlord time to find someplace new without too much of an empty property.

    It doesn't make any sense to have a lease of x length, but only be able to inform tenant of the lease not continuing ( for whatever reason) until the lease is up. You time it all so that notice and the lease ending are in sync.


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    #72
    salamanca22
    Registered Users Posts: 1,179 ✭✭✭salamanca22


    dori_dormer wrote: »
    Any lease I've seen ( now they were one year leases) state that the notice of intention to stay, or leave must be given 28 days before the en doc the lease. I think it's quite common. It gives the tenant and landlord time to find someplace new without too much of an empty property.

    It doesn't make any sense to have a lease of x length, but only be able to inform tenant of the lease not continuing ( for whatever reason) until the lease is up. You time it all so that notice and the lease ending are in sync.

    A tenant must give notice of intention to stay within 3 to 1 months of the end of the term, yes, but if they don't (So long as they are entitled to part 4 rights) they are not forced out of the dwelling, they will just have to reimburse the landlord for any costs they may have built up (Which is likely nothing). This can not be gotten around in a lease as a lease cannot remove rights from a tenant, only enhance them.

    A lot of things don't make sense in the prtb world, but that's the way the cookie crumbles as they say.


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    #73
    dori_dormer
    Registered Users Posts: 1,919 ✭✭✭dori_dormer


    salamanca22 wrote: »
    A tenant must give notice of intention to stay within 3 to 1 months of the end of the term, yes, but if they don't (So long as they are entitled to part 4 rights) they are not forced out of the dwelling, they will just have to reimburse the landlord for any costs they may have built up (Which is likely nothing). This can not be gotten around in a lease as a lease cannot remove rights from a tenant, only enhance them.

    A lot of things don't make sense in the prtb world, but that's the way the cookie crumbles as they say.

    Yes I agree , I was more replying to the post above about timings . Part 4 rights make things more complicated , but they don't apply in this case.

    I don't think even the prtb would consider over holding to be allowed apply towards part 4 rights


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    #74
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davo10 wrote: »
    Termination is a simple document. It states that the lease is terminated giving the required notice. A lease can be terminated without reason in the first 6 months. Op confirmed that it was signed and that she has recieved it, the term is ending and it is well before the 6 month time frame so, that's that. Are you for real on the High Court? It would cost the op thousands and she would be liable for costs of both parties in the event of it being unsuccessful, that is plain silly.

    If that was all the notice said it would be deemed invalid. the term is only ending at most a day or two before the 6 month limit. The op didn't say when she received it so we don't know if the full 28 days was given. Op is not a mark for costs.


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    #75
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Calliope Clean Grass wrote: »
    I refuse to believe that too. If you give a lease for 5 months it means you want someone in your property for 5 months not 6 and if what your are saying is true you are forced to allow someone to stay longer than you want.

    It should definitely be possible to give notice so that the end of the lease is the move out day.
    Maybe it should be possible, but if once someone is let into a property the landlord is very limited in controlling when they leave. Many landlords have spent months and years trying to get rid of a tenant long after the original lease expired.


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    #76
    salamanca22
    Registered Users Posts: 1,179 ✭✭✭salamanca22


    4ensic15 wrote: »
    If that was all the notice said it would be deemed invalid. the term is only ending at most a day or two before the 6 month limit. The op didn't say when she received it so we don't know if the full 28 days was given. Op is not a mark for costs.

    So long as notice is given before the 6 month anniversary of the tenancy then part 4 rights will never be given to the tenant. The landlord can give notice 1 day before this and even though the tenancy will not end until near 7 months they still will never be given part 4 rights. This is laid out in section 28 subsection 3 of the act.


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    #77
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    dori_dormer wrote: »
    Yes I agree , I was more replying to the post above about timings . Part 4 rights make things more complicated , but they don't apply in this case.

    I don't think even the prtb would consider over holding to be allowed apply towards part 4 rights

    Staying on after the end of a fixed term is not overholding. Overholding is staying on after the termination date of a valid termination notice.


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    #78
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    4ensic15 wrote: »
    If that was all the notice said it would be deemed invalid. the term is only ending at most a day or two before the 6 month limit. The op didn't say when she received it so we don't know if the full 28 days was given. Op is not a mark for costs.

    Count forward a five month lease from July and note that the notice was given a couple of days ago. (Ie less than 6 months)You said a notice of termination can only be given after a lease expires, you were asked for a source/link, do you have it? On the other hand you could check the citizens advice and/or Threshold sites and they both confirm that a tenancy can be ended within the first six months. Again, the op had a 5 month contract and notice of termination was served before the six months has elapsed.

    Can you give any shred of evidence/case law to back your opinion when all tenent info sites clearly state otherwise?


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    #79
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    4ensic15 wrote: »
    Staying on after the end of a fixed term is not overholding. Overholding is staying on after the termination date of a valid termination notice.

    Staying on after a valid termination notice is. Again, the op confirmed she received it before 6 months has elapsed, six months from July is January and the op has a 5 month contract signed in July which at the latest ends in the month of December.

    The op cannot claim breach of contract because the contract term has elapsed and cannot claim under the residential tenancies act because the 6 months necessary for part 4 rights has not been reached and by the op's own admission she is in receipt of a signed written notice of termination.


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    #80
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davo10 wrote: »
    Staying on after the determination date of a valid termination notice is. Again, the op confirmed she received it before 6 months has elapsed, six months from July is January and the op has a 5 month contract signed in July which at the latest ends in the month of December.

    The op cannot claim breach of contract because the contract term has elapsed and cannot claim under the residential tenancies act because the 6 months necessary for part 4 rights has not been reached and by the op's own admission she is in receipt of a signed written notice of termination.

    Fixed it for you.


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    #81
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    4ensic15 wrote: »
    Fixed it for you.

    Ok, just to be pedantic, five months forward from July 1st is December 1st and the last time I checked, that date falls before January 1st of the following year which makes the notice received by the op valid as it was received before the 6 months anniversary of first signing necessary to impart Part 4 rights. You are just being silly now. Go read the citizens advice/Threshold pages relating to termination of tenancies.


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    #82
    athtrasna
    Closed Accounts Posts: 13,420 ✭✭✭✭athtrasna


    Moderator notes are not there to be ignored. This thread will be closed if the bickering continues.


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    #83
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davo10 wrote: »
    Ok, just to be pedantic, five months forward from July 1st is December 1st and the last time I checked, that date falls before January 1st of the following year which makes the notice received by the op valid as it was received before the 6 months anniversary of first signing necessary to impart Part 4 rights. You are just being silly now. Go read the citizens advice/Threshold pages relating to termination of tenancies.

    Go read the Residential Tenancies Act 2004 as amended. Citizens Advice/Threshold are not to be taken literally and are not a substitute for legal advice. A person does not have to leave when a notice is received. the notice must specify a termination date. The termination date must be at lease 28 days after the notice is received. A 5 month lease from July 1st expires on 3oth November (last time I checked). The 6 months expires on 31st December. The notice cant beseerved until 1st december at earliest. The notice period starts from the day after it is received. Since it must be on or before 31st December the notice must be received on either the 1st or 2nd of december to avoid a 6 month tenancy.


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    #84
    salamanca22
    Registered Users Posts: 1,179 ✭✭✭salamanca22


    4ensic15 wrote: »
    Go read the Residential Tenancies Act 2004 as amended. Citizens Advice/Threshold are not to be taken literally and are not a substitute for legal advice. A person does not have to leave when a notice is received. the notice must specify a termination date. The termination date must be at lease 28 days after the notice is received. A 5 month lease from July 1st expires on 3oth November (last time I checked). The 6 months expires on 31st December. The notice cant beseerved until 1st december at earliest. The notice period starts from the day after it is received. Since it must be on or before 31st December the notice must be received on either the 1st or 2nd of december to avoid a 6 month tenancy.

    I suggest you read it yourself.

    As per subsection 3 of section 28, part 4 right will not apply to a tenant if notice to terminate tenancy is furnished anytime before the six month anniversary of the tenancy. If the six months equals 180 days then notice can be given on the 179th day and the tenant will not gain part 4 rights even though the tenancy will officially last longer than 6 months.

    Here is the section for your perusal. Important parts are bolded.
    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.


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