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Landlord won't let me end tenancy?

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    #32
    Peregrinus
    Registered Users Posts: 26,391 ✭✭✭✭Peregrinus


    Michael D Not Higgins wrote: »
    RTB dispute. The landlord finding the replacement is not an assignment. They have refused an assignment and must allow the tenancy to be ended without penalty subject to correct notice.
    If the landlord succeeds in finding a replacement then there certainly can be an assignment. "Assignment" is simply the transfer of the tenant's rights and obligations under the lease from Tenant A to Tenant B. It's an assignment, regardless of who found Tenant B, or how.

    The landlord is at liberty to reject the proposed tenant offered by Tenant A, and instead to require tenant A to assign the tenancy to someone nominated by the landlord. As long as an assignment to someone happens, Tenant A gets out of the lease and there is no penalty. Job done.

    You have a problem where Tenant A proposes an assignee, the landlord refuses to accept the assignee, doesn't find another, and then seeks to penalise Tenant A for breaking the lease without assigning it. That goes to the RTB.


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    #33
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    The RTA specifically mentions assignment by the tenant. That precludes the landlord assigning a tenancy in my reading.


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    #34
    Peregrinus
    Registered Users Posts: 26,391 ✭✭✭✭Peregrinus


    Michael D Not Higgins wrote: »
    The RTA specifically mentions assignment by the tenant. That precludes the landlord assigning a tenancy in my reading.
    The landlord can't assign a tenancy, right enough. He can't assign what he hasn't got, and it's the tenant who has the tenancy, not the landlord.

    But that's not to say that the landlord can't find an assignee and suggest to the tenant that the tenancy be assigned to him. As long as the tenancy is assigned to someone the original tenant is off the hook, and a tenant refusing to assign to someone suggested by the landlord would be cutting off his own nose to spite his face. You can't refuse to assign the tenancy when asked by the landlord and then complain that the landlord wouldn't let you assign it. The RTB will point out that, far from refusing consent to assignment, the landlord asked the tenant to assign; the refusal was the tenant's, not the landlord's.

    In general, finding an assignee is the tenant's problem. But if the landlord is willing to find one, and does in fact find one, why would the tenant refuse to assign to him? And, if he does refuse, why would he imagine that he could later complain that consent to assignment was refused by the landlord?


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    #35
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    Peregrinus wrote: »
    The landlord can't assign a tenancy, right enough. He can't assign what he hasn't got, and it's the tenant who has the tenancy, not the landlord.

    But that's not to say that the landlord can't find an assignee and suggest to the tenant that the tenancy be assigned to him. As long as the tenancy is assigned to someone the original tenant is off the hook, and a tenant refusing to assign to someone suggested by the landlord would be cutting off his own nose to spite his face. You can't refuse to assign the tenancy when asked by the landlord and then complain that the landlord wouldn't let you assign it. The RTB will point out that, far from refusing consent to assignment, the landlord asked the tenant to assign; the refusal was the tenant's, not the landlord's.

    In general, finding an assignee is the tenant's problem. But if the landlord is willing to find one, and does in fact find one, why would the tenant refuse to assign to him? And, if he does refuse, why would he imagine that he could later complain that consent to assignment was refused by the landlord?

    I don't envisage a problem finding a potential assignee. What I do see happening is the landlord saying they couldn't find someone soon enough then pocketing the deposit.

    The way an assignment works according to the Act is the tenant proposes an assignee and the landlord can agree or disagree. Either way, the tenant should get their deposit back after following the process correctly. Sure the tenant can accept an alternative assignee proposed by the landlord but what's proposed by the landlord puts the deposit at risk.

    The original question was what if the landlord wouldn't allow them to assign and wanted to find their own tenant. The tenant should not accept that and should request an assignment themselves with their own assignee. If that assignment is denied then the landlord would have to return the deposit following correct notice or argue to the RTB why that denial was reasonable.


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    #36
    Peregrinus
    Registered Users Posts: 26,391 ✭✭✭✭Peregrinus


    As long as the landlord received rent seamlessly - the new assignee, whoever he is, takes over paying rent from the day the old tenant stops - he's not at any loss, and I don't see any basis on which he could keep the deposit (unless there's a separate issue, e.g. damage to the premises).

    The tenant's interest in the tenancy belongs to him, and if he wants to assign it to, say, Joe, he can, provided the landlord consents. The landlord can't withhold his consent unreasonably. It would be reasonable for the landlord to withhold consent if, say, Joe is an undischarged bankrupt with a record of trashing the flats he takes. But it would not be reasonable of the landlord to withhold consent to an assignment to Joe because he wants the tenant to assign to his friend Mary instead. As long as Joe is a reasonable tenant, the fact that Mary would be a more desirable tenant (in the landlord's mind, for whatever reason) is irrelevant; that wouldn't make it reasonable to refuse to consent to an assignment to Joe.

    Nor, I agree, would it be reasonable to refuse to consent to the assignment to Joe because the landlord hopes to find a better assignee, but hasn't found one yet.


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    #37
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Peregrinus wrote: »
    As long as the landlord received rent seamlessly - the new assignee, whoever he is, takes over paying rent from the day the old tenant stops - he's not at any loss, and I don't see any basis on which he could keep the deposit (unless there's a separate issue, e.g. damage to the premises).

    The tenant's interest in the tenancy belongs to him, and if he wants to assign it to, say, Joe, he can, provided the landlord consents. The landlord can't withhold his consent unreasonably. It would be reasonable for the landlord to withhold consent if, say, Joe is an undischarged bankrupt with a record of trashing the flats he takes. But it would not be reasonable of the landlord to withhold consent to an assignment to Joe because he wants the tenant to assign to his friend Mary instead. As long as Joe is a reasonable tenant, the fact that Mary would be a more desirable tenant (in the landlord's mind, for whatever reason) is irrelevant; that wouldn't make it reasonable to refuse to consent to an assignment to Joe.

    Nor, I agree, would it be reasonable to refuse to consent to the assignment to Joe because the landlord hopes to find a better assignee, but hasn't found one yet.

    Reasonable consent does not apply in the case of assignments under the Residential Tenancies Act. The tenant can propose Joe Knacker as assignee. If the landlord refuses the tenant can serve a notice of termination. The landlord can't withhold the deposit other than for damage or rent arrears.


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    #38
    ec18
    Registered Users Posts: 2,709 ✭✭✭ec18


    Hi Again,

    Sorry to bring up an old thread but the landlord has agreed to an assignment and is telling me that I will be charged for re registering the tenancy with the RTB.

    I was under the impression that the RTB costs were all the landlords? Can they charge me/ with hold the cost from the deposit?


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    #39
    Ms Doubtfire1
    Registered Users Posts: 1,422 ✭✭✭Ms Doubtfire1


    nope.


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    #40
    Pkiernan
    Registered Users Posts: 4,310 ✭✭✭Pkiernan


    He can charge you this. You have broken the lease and left the landlord out of pocket to the tune of the cost of the new registration fee for the new tenancy.
    It's not his fault you are breaking your lease agreement.


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    #41
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    Pkiernan wrote: »
    He can charge you this. You have broken the lease and left the landlord out of pocket to the tune of the cost of the new registration fee for the new tenancy.
    It's not his fault you are breaking your lease agreement.

    I believe it's from contract law (could be wrong, I'm not a lawyer) that the landlord is entitled to not be at any financial loss due to breaking of the contract. This includes some caveats of mitigation of the losses incurred.

    There are disputes in favour of the landlord with the RTB where the registration fee has been awarded as an allowable deduction from the deposit when a fixed term lease has been broken, although usually as a proportional amount dependent on the length of the tenancy. For example, one case had a tenant move out within a month and the entire €90 was allowed to be deducted. Another moved out after 9 months of a 24 month lease and €56.25 was allowable.

    ec18, I would propose a compromise with the landlord and a proportional amount of the registration fee to be deducted.


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    #42
    Ms Doubtfire1
    Registered Users Posts: 1,422 ✭✭✭Ms Doubtfire1


    Michael D Not Higgins wrote: »
    I believe it's from contract law (could be wrong, I'm not a lawyer) that the landlord is entitled to not be at any financial loss due to breaking of the contract. This includes some caveats of mitigation of the losses incurred.

    There are disputes in favour of the landlord with the RTB where the registration fee has been awarded as an allowable deduction from the deposit when a fixed term lease has been broken, although usually as a proportional amount dependent on the length of the tenancy. For example, one case had a tenant move out within a month and the entire €90 was allowed to be deducted. Another moved out after 9 months of a 24 month lease and €56.25 was allowable.

    ec18, I would propose a compromise with the landlord and a proportional amount of the registration fee to be deducted.

    whilst that could be true, in this case the LL has agreed to an assignment and is not out of pocket for rent.As such, there is no breach of lease and the re-registration is for the Ll as it would be if you would have staid for the duration of the tenancy.


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    #43
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    Ms Doubtfire1 wrote: »
    whilst that could be true, in this case the LL has agreed to an assignment and is not out of pocket for rent.As such, there is no breach of lease and the re-registration is for the Ll as it would be if you would have staid for the duration of the tenancy.

    He's not out of pocket for rent but he is for the registration fee.


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    #44
    runawaybishop
    Registered Users Posts: 9,504 ✭✭✭runawaybishop


    Ms Doubtfire1 wrote: »
    whilst that could be true

    It is true. Tenant is liable for any expenses.


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    #45
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,211 Mod ✭✭✭✭godtabh


    Ms Doubtfire1 wrote: »
    whilst that could be true, in this case the LL has agreed to an assignment and is not out of pocket for rent.As such, there is no breach of lease and the re-registration is for the Ll as it would be if you would have staid for the duration of the tenancy.

    He is still out of pocket if he has to register.


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    #46
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    There was no breach of contract, you used a term in the RTB act to terminate your lease. The same effect as if the lease contained the term.

    Also the LL has no damages, he didn't have to pay the RTB fee when you remained in the tenancy after the original lease was up, nor on commencement of the 3rd year.


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    #47
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    Ms Doubtfire1 wrote: »
    nope.

    Yes actually- as the tenant is assigning their lease to a third party.
    The original RTB tenancy registration fee- is the landlord's- a subsequent fee relating to the same tenancy- is not. Similarly- if/when the landlord registers the new tenant with the RTB in their own right (after the elapse of the assignment)- that is then their (the landlord's) fee.

    A landlord cannot use a lease assignment as a reason for refusing to accept the termination of a tenancy from a tenant- they are perfectly entitled to bill the tenant for any reasonable costs associated with either the lease assignment- or a reletting, within a reasonable timeframe. If the tenant disagrees- they are free to dispute the stated costs with the RTB- and it will be up to the landlord to justify them. Normally, unless all hell breaks loose, the RTB fee will be a small and reasonable component. That said- if it gets complicated- and investigation fees get tagged on etc (and I have a bill here from the RTB from January of this year myself featuring this- in my own name)- it can mount up. My Jan bill comes to 696 Euro. This is exceptional- and I'm currently disputing it (however my own claim for damage is languishing on a shelf somewhere- as the tenants have vanished and are incommunicado).


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    #48
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    Ms Doubtfire1 wrote: »
    whilst that could be true, in this case the LL has agreed to an assignment and is not out of pocket for rent.As such, there is no breach of lease and the re-registration is for the Ll as it would be if you would have staid for the duration of the tenancy.

    They are not out of pocket- if there is a seamless continuation of occupation.
    5 working days- in the context of Dublin, Cork or Galway- could well be 500-600 Euro.

    Joe and Mary may agree to take over Olivia and John's lease- but may feck around about moving dates etc- meanwhile Olivia and John may have moved to a different county (for work or whatever). Honestly- this happens every day of the week.

    The landlord is entitled to not be out of pocket relating to the assignment of the lease- this includes RTB fees, any cross-over delays- and indeed any damage over and above normal wear and tear associated with tenant no. 1.


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    #49
    Peregrinus
    Registered Users Posts: 26,391 ✭✭✭✭Peregrinus


    davindub wrote: »
    There was no breach of contract, you used a term in the RTB act to terminate your lease . . .
    He's not terminating the lease; he's assigning it.

    Nevertheless, since the assignment is something he has chosen to do for his own benefit, it's reasonable that he should bear any costs resulting from the assignment. Unless the lease says otherwise, which would be surprising, or someone can point to a provision in the legislation which says the landlord must bear the cost, it's reasonable for the landlord to make his consent to the assignment conditional on the payment of any associated costs, such as fees payable to the RTB that wouldn't have to be paid if the assignment hadn't happened.


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    #50
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Peregrinus wrote: »
    He's not terminating the lease; he's assigning it.

    Nevertheless, since the assignment is something he has chosen to do for his own benefit, it's reasonable that he should bear any costs resulting from the assignment. Unless the lease says otherwise, which would be surprising, or someone can point to a provision in the legislation which says the landlord must bear the cost, it's reasonable for the landlord to make his consent to the assignment conditional on the payment of any associated costs, such as fees payable to the RTB that wouldn't have to be paid if the assignment hadn't happened.

    The legislation says that if the landlord does not consent to the assignment, the tenant may terminate the tenancy. The landlord either accepts or rejects. If he rejects the assignment, the tenant can give notice. It is clearly of benefit to the tenant to assign as he will not have to wait out the full notice period. The landlord would have to make the consent to the assignment conditional on the reasonable expenses being paid before he gives consent.
    The tenant should have the choice of waiting out the notice period or paying the charge.


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    #51
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    4ensic15 wrote: »
    The legislation says that if the landlord does not consent to the assignment, the tenant may terminate the tenancy. The landlord either accepts or rejects. If he rejects the assignment, the tenant can give notice. It is clearly of benefit to the tenant to assign as he will not have to wait out the full notice period. The landlord would have to make the consent to the assignment conditional on the reasonable expenses being paid before he gives consent.
    The tenant should have the choice of waiting out the notice period or paying the charge.

    Correct.
    The tenant is still liable for any costs incurred between the current tenant leaving and a new tenant taking up tenancy- to include any advertising and/or agency costs.

    There is a good reason for a fixed term tenancy- however, it doesn't abdicate a tenant of all responsibility- and if a tenant knows they don't intend to stay for the duration- they really shouldn't sign one for a time frame they do not intend to keep.

    Edit: Providing of course the landlord doesn't make an undue delay in trying to retenant the property.


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    #52
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    Peregrinus wrote: »
    davindub wrote: »
    There was no breach of contract, you used a term in the RTB act to terminate your lease . . .
    He's not terminating the lease; he's assigning it.

    Nevertheless, since the assignment is something he has chosen to do for his own benefit, it's reasonable that he should bear any costs resulting from the assignment. Unless the lease says otherwise, which would be surprising, or someone can point to a provision in the legislation which says the landlord must bear the cost, it's reasonable for the landlord to make his consent to the assignment conditional on the payment of any associated costs, such as fees payable to the RTB that wouldn't have to be paid if the assignment hadn't happened.

    You are describing damages which cannot arise as a result of the other party complying with legislation. This is an established contract law principle.

    More to the point the LL has not actually suffered loss, he saved on the fee in year 2 and 3.

    Also if the LL refuses consent, all charges relating to readvertising cannot be charged to the tenant.

    On a side note. Reassignment is mentioned in he actually as regards tenancies rather than lease. Ithe is very unlikely it is necessary to reassign a fixed term lease that was entered into whilst part 4 rights were granted.


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    #53
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davindub wrote: »
    You are describing damages which cannot arise as a result of the other party complying with legislation. This is an established contract law principle.

    More to the point the LL has not actually suffered loss, he saved on the fee in year 2 and 3.

    Also if the LL refuses consent, all charges relating to readvertising cannot be charged to the tenant.

    On a side note. Reassignment is mentioned in he actually as regards tenancies rather than lease. Ithe is very unlikely it is necessary to reassign a fixed term lease that was entered into whilst part 4 rights were granted.

    There is no fee in year 2 and year 3 unless the tenant leaves and there is a new tenant each year. The landlord has had, at the very least had his fee brought forward.


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    #54
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    4ensic15 wrote: »
    There is no fee in year 2 and year 3 unless the tenant leaves and there is a new tenant each year. The landlord has had, at the very least had his fee brought forward.

    Exactly he has gained rather than suffered loss. The LL could have had to pay 3 fees instead of 1 for the period the tenant spent there. That does not equate to damages even if a breach of contract existed (any residential lease assumes the relevant provisions of the RTB act) but as I mentioned earlier you cannot recover damages for breach of contract if the other party was relying on a term in legislation.

    Leaving aside what is recoverable, I cannot even see the LL's logic to justify the charge. He has had a tenant remain there for 2.5 years, no suggestion of rent not being paid, damages done to the property, saved on the fee in Year 2, has not yet had to pay a fee until now. Not to mention the value of the fee is a taxable deduction to the LL.


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    #55
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davindub wrote: »
    Exactly he has gained rather than suffered loss. The LL could have had to pay 3 fees instead of 1 for the period the tenant spent there. That does not equate to damages even if a breach of contract existed (any residential lease assumes the relevant provisions of the RTB act) but as I mentioned earlier you cannot recover damages for breach of contract if the other party was relying on a term in legislation.

    Leaving aside what is recoverable, I cannot even see the LL's logic to justify the charge. He has had a tenant remain there for 2.5 years, no suggestion of rent not being paid, damages done to the property, saved on the fee in Year 2, has not yet had to pay a fee until now. Not to mention the value of the fee is a taxable deduction to the LL.

    The fee is only payable very 4 years (soon to be 6)? unless the tenant changes.
    An early change means an extra fee!


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    #56
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    4ensic15 wrote: »
    The fee is only payable very 4 years (soon to be 6)? unless the tenant changes.
    An early change means an extra fee!

    Yes 1 fee in 4 years, unless the tenant changes which could happen 4 times under the LL's own lease terms with no claims against anyone.


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    #57
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    davindub wrote: »
    Yes 1 fee in 4 years, unless the tenant changes which could happen 4 times under the LL's own lease terms with no claims against anyone.

    Why are you labouring this point?
    Its one small cost on what can be a long list.
    It does have to be paid to register a new tenant- possibly up to several years early. However, its only one cost.


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    #58
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davindub wrote: »
    Yes 1 fee in 4 years, unless the tenant changes which could happen 4 times under the LL's own lease terms with no claims against anyone.

    Yes., If this messing, dropping out of leases after a few months went on, could be a multiple of that. There could be 16 fees if tenants changed every 3 months. The absolute maximum the LL should have to pay is 4.


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