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Possible rental issue

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  • 05-04-2016 1:53pm
    #1
    MooShop
    Registered Users Posts: 972 ✭✭✭


    Just looking for some input/advice on this, will try to keep it short.

    So basically my GF is living in a two bed apartment with another girl. Long story short they had a bit of a falling out last week, no big deal usually but this girl happens to be the daughter of the landlord. The other girl is now making things a bit difficult for my GF and she's worried that she may be forced out if this girl throws a bit of a strop.

    Our concern really is if she'd get her deposit back if such an event occurred. So, I've been looking into her tenancy agreement etc. So it turns out she didn't actually sign a lease but a "rental agreement". It's quite a short document that just covers payment dates and that although the term is outlined to be one year that either party can terminate the agreement with one months notice.

    There's one sentence at the end of this "agreement" that I find a bit troubling:
    "While the terms landlord and tenant are used throughout this agreement, this is not a tenancy agreement and is therefore not subject to legislation pertaining to landlord and tenant law."

    I must say I was quite shocked when I read this. Surely this can't be legal, I mean like can you get someone to sign a document like this that essentially waives their rights to the law??

    I was a bit concerned when I read this so looked a bit deeper and it turns out that the tenancy isn't registered with the PRTB. Again this worries me.

    I've read up on the Residential Tenancies Act 2004 on the citizens information website to try to find out about the validity of the agreement mentioned above. I came across this sentence:
    However, the Act does not cover tenants who rent a room in their landlord's home.

    Now the landlord is the father and he doesn't live in the property but the daughter does, so could they somehow claim the above to be true, to skirt around the tenancy act?

    I guess I'm just looking for a bit of advice on what recourse my GF could take if they withheld her deposit. I'd like to know exactly where she'd stand legally in such a situation?

    Thanks in advance.


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    #2
    ED E
    Registered Users Posts: 36,167 ✭✭✭✭ED E


    Rents the apartment = tenant, strong rights
    Rents the room = licensee, few rights

    Which did she rent? I suspect tthe latter as the daughter probably didn't sign a shared lease.


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    #3
    MooShop
    Registered Users Posts: 972 ✭✭✭MooShop


    ED E wrote: »
    Rents the apartment = tenant, strong rights
    Rents the room = licensee, few rights

    Which did she rent? I suspect tthe latter as the daughter probably didn't sign a shared lease.

    The daughter was already living there when my GF moved in so it's not a shared "agreement".

    So going by what you say it sounds like she's just a licensee?

    From citizens information:
    If you are renting a self-contained flat or apartment in your landlord’s home, your tenancy is covered by the residential tenancies legislation and your landlord must register it with the Private Residential Tenancies Board. However, if you are renting a room that is part of your landlord's home, your tenancy is not covered by this legislation.

    Would her agreement fall under this? Though would the landlord not have to be residing there for it to be considered his home??


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    #4
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    You can't waive your rights by signing such an agreement. It's unenforceable and the Court will look at the realities of the sitution. That said, the realality of this situation is that your GF seems to be subletting from the owners daughter who is acting as LL or agent of the LL. In this case it's entirely appropriate to be upfront about it and include it in the agreement.


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    #5
    MooShop
    Registered Users Posts: 972 ✭✭✭MooShop


    MarkAnthony wrote: »
    You can't waive your rights by signing such an agreement. It's unenforceable and the Court will look at the realities of the sitution.

    Thanks, that's what I thought!
    MarkAnthony wrote: »
    That said, the realality of this situation is that your GF seems to be subletting from the owners daughter who is acting as LL or agent of the LL. In this case it's entirely appropriate to be upfront about it and include it in the agreement.

    This could be true though it's not stated in the agreement.

    Again, nothing has happened yet but I just want to be prepared in case they try to shaft her. She wouldn't be able to afford to move again without getting the deposit back so that's why i'm keen to understand where she stands.


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    #6
    K_P
    Registered Users Posts: 577 ✭✭✭K_P


    As the landlord is not resident in the house, my feeling would be that she is a tenant, not a licencee. If I own a house and want to avail of the tax free rent-a-room scheme, I have to be living in the house to do so. The fact that the daughter is living in the house doesn't necessarily make her the agent of the landlord. Who does your gf pay her rent to?

    The fact that the agreement says the notice period is one month would further indicate that she is a tenant rather than a licencee.

    As other posters have said, a madey-uppy "rental agreement" (a meaningless term btw) stating that landlord tenant law doesn't apply will not stand up in court or with the PRTB. You can't just opt out of legislation as and when you wish.

    There's a line in a judgment in quite a famous case on landlord tenant law in the UK which I like and seems quite relevant here: “The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade”


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    #7
    [Deleted User]
    Posts: 24,714 ✭ [Deleted User]


    K_P wrote: »
    As the landlord is not resident in the house, my feeling would be that she is a tenant, not a licencee. If I own a house and want to avail of the tax free rent-a-room scheme, I have to be living in the house to do so. The fact that the daughter is living in the house doesn't necessarily make her the agent of the landlord. Who does your gf pay her rent to?

    The op's gf is definitely a licensee either of the LL or of the LLs daughter.

    If you are living with the LL spouse, child or parent its the equivalent of living with the LL themselves as outlined on citizens information.

    from citizens information "The position is the same if you are living with a spouse, child or parent of a landlord and you do not have a tenancy agreement or written lease"

    Aside from this if the person she is living with was not the daughter of the LL she would still be a licensee as the room is being sublet to her.

    This is not to be confused with rent a room relief in which case the LL has to be living in the house but you can be a licensee if the LL or anyone in his family never lived in the house even. If a LL rents rooms separately and retains access to the common areas (particularly if the LL keeps a room, even if they never use it) then the people living there are licensees not tenants.


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    #8
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    MooShop wrote: »
    This could be true though it's not stated in the agreement.

    It's very much implied by the statement at the end of the agreement. These statements are often misused but in this case it seems appropriate. While people seem to think Licenecee's have no rights, they do have to be given reasonable notice. That's short but there is an argument for the time it takes to get the seposit back being equally as short.


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    #9
    MooShop
    Registered Users Posts: 972 ✭✭✭MooShop


    Raymond Gray Storybook wrote: »

    from citizens information "The position is the same if you are living with a spouse, child or parent of a landlord and you do not have a tenancy agreement or written lease"

    Thanks, I didn't notice this when I was looking through the website.
    MarkAnthony wrote: »
    It's very much implied by the statement at the end of the agreement. These statements are often misused but in this case it seems appropriate. While people seem to think Licenecee's have no rights, they do have to be given reasonable notice. That's short but there is an argument for the time it takes to get the seposit back being equally as short.

    Yeah, I wasn't aware of it being a licensee situation as it's not mentioned anywhere in the document she was given. The document is short and vague and could be more clear about this.

    Thanks for your help guys!


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    #10
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    MooShop wrote: »
    Yeah, I wasn't aware of it being a licensee situation as it's not mentioned anywhere in the document she was given. The document is short and vague and could be more clear about this.

    Thanks for your help guys!

    Even more suggestion of a Licencee agreement I'm afraid. My licencee's agreement is completely verbal, whereas my tenants have a lease thats a good thickness!


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    #11
    K_P
    Registered Users Posts: 577 ✭✭✭K_P


    Raymond Gray Storybook wrote: »

    from citizens information "The position is the same if you are living with a spouse, child or parent of a landlord and you do not have a tenancy agreement or written lease"

    Fair enough, I missed that bit. :o

    I do think it's potentially ambiguous though depending on what else is stated in the "rental agreement" and would be worth contacting Threshold for some more formal advice.


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    #12
    MooShop
    Registered Users Posts: 972 ✭✭✭MooShop


    MarkAnthony wrote: »
    Even more suggestion of a Licencee agreement I'm afraid. My licencee's agreement is completely verbal, whereas my tenants have a lease thats a good thickness!

    Well that's good to know for future reference!


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    #13
    Mrs OBumble
    Registered Users Posts: 25,966 ✭✭✭✭Mrs OBumble


    Who does she pay the rent to, the owner or the daughter?


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    #14
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Mrs OBumble wrote: »
    Who does she pay the rent to, the owner or the daughter?

    It doesn't matter. the Residential Tenancies Act does not apply in case case of a dwelling in which the landlord or a member of the landlords family also resides!


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    #15
    mylittlepony
    Registered Users Posts: 530 ✭✭✭mylittlepony


    Could the daughter and father be co-owners of the apartment which would mean the renter is a licensee?


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    #16
    Victor
    Registered Users Posts: 78,423 ✭✭✭✭Victor


    Who signed this agreement?


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    #17
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    4ensic15 wrote: »
    It doesn't matter. the Residential Tenancies Act does not apply in case case of a dwelling in which the landlord or a member of the landlords family also resides!

    Even if it was just someone unconnected to the landlord, they could have the sole tenancy with permission from the landlord to sublet. That would make them a tenant and the other person a licensee who lives with their landlord (i.e. the tenant).


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