Notice to Leave Tenancy

pilly

Samuel T. Cogley wrote: »

But the LL can't do that as the tenant is on Part IV after six months. So again, and sorry to sound like a broken record here, why bother with a fixed term lease in the first place, especially as some of them don't seem to delimit the notice requirements.

The only reason seems to be so letting agents can collect a fee each year.

So under Part IV the tenant doesn't have to give any notice? How is that fair?

Samuel T. Cogley

pilly wrote: »

So under Part IV the tenant doesn't have to give any notice? How is that fair?

That's my very point. Additional documentation and rules were brought in to a situation where I'd be willing to bet real money the tenant never read the lease, let alone familiarised themselves with the legislation and came to a decision on which took precedence.

If the LL in this case had just gone with a standard rental agreement explaining Part IV I'd have come up with all sorts of creative names for the tenant that, athtrasna wouldn't have liked I assure you!

Edit: And if it's in the lease (in either case in this thread) it's not fair either, but the question is - is it provided for in the lease?

TheChizler

pilly wrote: »

So under Part IV the tenant doesn't have to give any notice? How is that fair?

Nothing to stop the landlord asking the tenant informally do they plan on staying on.

percy212

Nothing to stop the owner copping on and realizing that all investments do not pay for themselves. Consider it a cost of doing business.

Samuel T. Cogley

Samuel T. Cogley wrote: »

But the LL can't do that as the tenant is on Part IV after six months.

The tenant is on part 4 thus is bound by the notice requirements for a tenant to end their part 4 tenancy. Unless the lease specifically gives information about notice the fact its fixed term is irrelevant.

I'd be looking at keeping the deposit if I had a tenant move out without giving the required notice or at least giving a heads up and trying to discuss a mutually agreed shorter notice.

Michael D Not Higgins

Cason Old-fashioned Nunnery wrote: »

The tenant is on part 4 thus is bound by the notice requirements for a tenant to end their part 4 tenancy. Unless the lease specifically gives information about notice the fact its fixed term is irrelevant.

I'd be looking at keeping the deposit if I had a tenant move out without giving the required notice or at least giving a heads up and trying to discuss a mutually agreed shorter notice.

There is also an onus on the landlord to mitigate their loss. Any deduction from the deposit would be subject to that mitigation. You cannot just take the deposit if they move out without notice.

Samuel T. Cogley

Cason Old-fashioned Nunnery wrote: »

The tenant is on part 4 thus is bound by the notice requirements for a tenant to end their part 4 tenancy. Unless the lease specifically gives information about notice the fact its fixed term is irrelevant.

We simply don't know that for sure. We certainly don't know if a pro-tenant mediator won't come to a similar rationale than I did. The implications of the tenant being required to inform the landlord they wish to remain beyond the fixed term only strengthens the possible argument that the tenant may simply leave after the fixed term.

I've had no luck locating an RTB ruling on the matter I welcome a correction and solid answer on this. We're both simply advocating our respective positions at the moment without reference to anything concrete.

Cason Old-fashioned Nunnery wrote: »

I'd be looking at keeping the deposit if I had a tenant move out without giving the required notice or at least giving a heads up and trying to discuss a mutually agreed shorter notice.

That's your prerogative of course, but we do know where that will end up.

Samuel T. Cogley

I'm going to trawl through a few of these RTB reports unless someone is nice and points me to the legal basis for RTA notice being the default where a fixed term lease is silent on the matter.

However on deposits, which I've seen about 20 cases (just by perusing) of improperly held deposits as the claim or part of it, in almost every case damages have been awarded to the applicant tenant. So yet another reason not to withhold a deposit willy-nilly unless you've bloody good reason and proof of your loss.

pilly

Samuel T. Cogley wrote: »

I'm going to trawl through a few of these RTB reports unless someone is nice and points me to the legal basis for RTA notice being the default where a fixed term lease is silent on the matter.

However on deposits, which I've seen about 20 cases (just by perusing) of improperly held deposits as the claim or part of it, in almost every case damages have been awarded to the applicant tenant. So yet another reason not to withhold a deposit willy-nilly unless you've bloody good reason and proof of your loss.

It wasn't actually OP that said he was going to withhold the deposit. It was another poster.

Samuel T. Cogley

pilly wrote: »

It wasn't actually OP that said he was going to withhold the deposit. It was another poster.

Quite right, I'm just a bit concerned that advice is being given to the OP in respect of withhold the deposit.

This makes interesting reading:

http://www.rtb.ie/docs/default-source/tribunal-reports/tr1115-001452-report.pdf?sfvrsn=0

I'm sure there will be people here who will be able to distinguish the decision above from the OP's scenario but this is an example of a fixed term lease being silent on notice periods and what the RTB found.

As always I welcome correction and better examples.

BrokenArrows

Micmonoc wrote: »

Thanks for all your replies... I guess it's all very much a grey area. We started on a fixed term lease on the advice of our letting agent.

Just to clarify, I'm not trying to be an ass in the slightest. But we are flat broke and have to pay our own mortgage & rent so I'm just pretty annoyed we didn't get a bit more notice to get new tenants in. It shouldn't take long but we're still looking at a loss here that I'm not sure how we'll cover. I'll get the place put up on daft as soon as possible and hopefully we can get someone in the next few weeks...

Tell the tenant that they were required to give notice on the property.
If they wont serve out the notice period then advise them they you will deduct a certain amount from the deposit.

If you are reasonable on the amount you are going to deduct then the tenants might accept it and you will have reduced your loss a little. If you ask for too much the tenants will fight you and its just not worth the hassle.

However you kinda brought this on yourself. You should have been raising the issue of renewal a month or two before the end of the lease, not in the final few days.

Rental of a property is not a guaranteed income, you will have situations which result in weeks/months of lost rent. If you dont have any savings to cover periods of downtime then you need to look at your finances. Remortgage to reduce repayments to give you some breathing space.

pilly

Samuel T. Cogley wrote: »

Quite right, I'm just a bit concerned that advice is being given to the OP in respect of withhold the deposit.

This makes interesting reading:

http://www.rtb.ie/docs/default-source/tribunal-reports/tr1115-001452-report.pdf?sfvrsn=0

I'm sure there will be people here who will be able to distinguish the decision above from the OP's scenario but this is an example of a fixed term lease being silent on notice periods and what the RTB found.

As always I welcome correction and better examples.

Thanks for that. So it does seem to hinge on the fact that no requirement to give notice was in the lease.

So a lot depends here on what was in the original lease.

Michael D Not Higgins

Samuel T. Cogley wrote: »

I'm going to trawl through a few of these RTB reports unless someone is nice and points me to the legal basis for RTA notice being the default where a fixed term lease is silent on the matter.

However on deposits, which I've seen about 20 cases (just by perusing) of improperly held deposits as the claim or part of it, in almost every case damages have been awarded to the applicant tenant. So yet another reason not to withhold a deposit willy-nilly unless you've bloody good reason and proof of your loss.

69.—(1) Subject to subsection (2), the landlord or tenant may agree to a lesser period of notice being given than that required by a preceding provision of this Chapter and such lesser period of notice may be given accordingly.

(2) Such an agreement to a lesser period of notice being given may only be entered into at, or after, the time it is indicated to the tenant or landlord (as appropriate) by the other party that he or she intends to terminate the tenancy.

(3) For the avoidance of doubt, a term of a lease or tenancy agreement cannot constitute such an agreement.

Samuel T. Cogley

pilly wrote: »

Thanks for that. So it does seem to hinge on the fact that no requirement to give notice was in the lease.

So a lot depends here on what was in the original lease.

Absolutely - and I should have probably made that clearer from the outset. However the point I'm making is don't be so sure the logical conclusion is going to be reached by the RTB.

pilly

Samuel T. Cogley wrote: »

Absolutely - and I should have probably made that clearer from the outset. However the point I'm making is don't be so sure the logical conclusion is going to be reached by the RTB.

Oh I would never rely on the RTB to rule in favour of a LL, don't worry. I would assume the opposite as a default.

livedadream

the lease is up, contract has ended... 
let them go, its your fault for only contacting them 4 days before about renewal, if you wanted them to stay you should have contacted them earlier.

Samuel T. Cogley

Michael D Not Higgins wrote: »

69.—(1) Subject to subsection (2), the landlord or tenant may agree to a lesser period of notice being given than that required by a preceding provision of this Chapter and such lesser period of notice may be given accordingly.

(2) Such an agreement to a lesser period of notice being given may only be entered into at, or after, the time it is indicated to the tenant or landlord (as appropriate) by the other party that he or she intends to terminate the tenancy.

(3) For the avoidance of doubt, a term of a lease or tenancy agreement cannot constitute such an agreement.

That does indeed demolish my argument in reference to tenancy terms, but it does not ensure that Part IV notices would have to apply in the case of a fixed term tenancy which is silent on the notice requirement.

One can justify the RTBs decision above by reference to the LL being silent on the matter leaves the notice period undefined by intention and/or failure to provide for it should result in the tenant not being held to a notice period.

Michael D Not Higgins

pilly wrote: »

Thanks for that. So it does seem to hinge on the fact that no requirement to give notice was in the lease.

So a lot depends here on what was in the original lease.

Just on that case as well, the RTB ruled it wasn't a legal retention of the deposit as there was no loss. Tenants moved in straight after the old tenants moved out.

It could be different with a period of vacancy as this is a demonstrable loss, should it be shown that the loss was mitigated as far as reasonably practicable and only the amount covering that loss was retained from the deposit.

Samuel T. Cogley

Michael D Not Higgins wrote: »

Just on that case as well, the RTB ruled it wasn't a legal retention of the deposit as there was no loss. Tenants moved in straight after the old tenants moved out.

It could be different with a period of vacancy as this is a demonstrable loss, should it be shown that the loss was mitigated as far as reasonably practicable and only the amount covering that loss was retained from the deposit.

Another excellent point well made.

Michael D Not Higgins

Samuel T. Cogley wrote: »

That does indeed demolish my argument in reference to tenancy terms, but it does not ensure that Part IV notices would have to apply in the case of a fixed term tenancy which is silent on the notice requirement.

One can justify the RTBs decision above by reference to the LL being silent on the matter leaves the notice period undefined by intention and/or failure to provide for it should result in the tenant not being held to a notice period.

The issue in that case was there was no loss to cover. The Part 4 runs in parallel to a fixed term lease, and you can't contract out of the notice periods required (except to the benefit of increased certainty of tenure for the tenant).

Section 37 allows for no notice to be given by the tenant but this can lead to a loss being incurred by the landlord which can then be covered by the deposit as long as he's careful in documenting everything in line with the RTA.

CIARAN_BOYLE

Michael D Not Higgins wrote: »

pilly wrote: »

Thanks for that. So it does seem to hinge on the fact that no requirement to give notice was in the lease.

So a lot depends here on what was in the original lease.

Just on that case as well, the RTB ruled it wasn't a legal retention of the deposit as there was no loss. Tenants moved in straight after the old tenants moved out.

It could be different with a period of vacancy as this is a demonstrable loss, should it be shown that the loss was mitigated as far as reasonably practicable and only the amount covering that loss was retained from the deposit.

That's what I felt as well. To me sections 7 and 8 are the only ones important when establishing precedent.

Tennant claims new tenants moved in immediately, agents for landlord can't answer as to when the new tenants moved in. Landlord suffered no loss therefore landlord couldn't retain deposit.

Michael D Not Higgins

I'll correct what I said before. Section 37 only refers to deemed termination when in rent arrears. Section 36 requires a tenant to provide notice of termination.

Samuel T. Cogley

Points certainly taken and admittedly distinguish the case I linked.

I hope that these sorts of discussions are okay and I'm not straying too far into the legalities of the situation or dragging the topic off point. I personally find such discussions aid in understanding the underlying legislation but I'll obviously be guided by the mods.

Samuel T. Cogley

Michael D Not Higgins wrote: »

I'll correct what I said before. Section 37 only refers to deemed termination when in rent arrears. Section 36 requires a tenant to provide notice of termination.

I think that clarification is unnecessary as my reading of it is that it simply means that the LL can not begin to take action while within the period of paid rent. I'm not trying to split hairs here simply say that section 37 (1) doesn't require any period of arrears.

Edit: Ah no I get you now sorry. 37(1) requires notice too.

Weepsie

Weepsie wrote: »

Surely you should also be contacting them more than 2 weeks in advance of any possible renewal? It works both ways. You'll probably rent it out quick enough given the market, consider it a lesson and tighten up your lease wording and be more proactive with notifications.

Many LLs just allow it to roll on as a part 4 tenancy, if you hear nothing my assumption would be the person is staying and there is no need to contact them. There is no need to renew the lease.

pilly

Samuel T. Cogley wrote: »

Points certainly taken and admittedly distinguish the case I linked.

I hope that these sorts of discussions are okay and I'm not straying too far into the legalities of the situation or dragging the topic off point. I personally find such discussions aid in understanding the underlying legislation but I'll obviously be guided by the mods.

Not at all, I find your posts interesting. With the RTB judgements, I'll be honest I find them very hard to understand.

Samuel T. Cogley

pilly wrote: »

Not at all, I find your posts interesting. With the RTB judgements, I'll be honest I find them very hard to understand.

Me too it seems!!! :pac:

pilly

Samuel T. Cogley wrote: »

Me too it seems!!! :pac:

They don't make it easy.

Michael D Not Higgins

Samuel T. Cogley wrote: »

Points certainly taken and admittedly distinguish the case I linked.

I hope that these sorts of discussions are okay and I'm not straying too far into the legalities of the situation or dragging the topic off point. I personally find such discussions aid in understanding the underlying legislation but I'll obviously be guided by the mods.

Insofar as they relate to the OP, are suitably on topic and don't stray outside the bounds of advocating illegal behaviour, etc., we allow the RTA and the judgements of the RTB to be discussed.

bucketybuck

Micmonoc wrote: »

But as a landlord with a tenant who didn't give notice, I'm now in a situation having to cover my mortgage & rent for at least a month. So how is that fair?

What does your personal debts have to do with the situation?