Further Part 4 Tenancy probation period

Manzoor14

I have a query about the changes to terminating a Further Part 4 tenancy from 17th Jan 2017. Basically, previously a landlord could terminate a Further Part 4 tenancy within the first 6 months of the tenancy, without giving a reason. But since January, the landlord can now only terminate a Further Part 4 tenancy in these first 6 months under one of the Section 34 grounds. I think i've got this bit correct?

Just wondering does this change affect only Further Part 4 tenancies that have commenced since 24th December 2016 (or 17th Jan 2017?). Or does it cover tenancies that commenced before then?

So for example, a Further Part 4 tenancy begins in November 2016 and thus is still within the 6 months probationary period until the end of April. Is this tenancy covered under the amendment to the Act? And a termination can only take place using one fo the Section 34 grounds in the 2004 Act? Or can a termination still take place for no reason?

I had a look at Citizens Information and the rtb.ie website. From reading Citizens Information, I got the impression that the previous 6 month probationary period doesn't apply to the above example. But reading the rtb.ie website, I got the impression that the revised 6 month probationary period only applied to tenancies that have commenced since 24th December 2016. And I couldn't make out anything from reading the Act itself!

I've googled around and have a look at some other threads on boards, but I've done so much reading about it at this stage, i'm starting to confuse myself! So any clarification would be greatly appreciated.

Michael D Not Higgins

For further Part 4 tenancies that come into existence before the commencement of the new amendments, the old law still applies.

4ensic15

Michael D Not Higgins wrote: »

For further Part 4 tenancies that come into existence before the commencement of the new amendments, the old law still applies.

The new law did not apply where the notice was served before the coming into force of the act. Section 42 is now repealed and can't be used for the first time.

Michael D Not Higgins

4ensic15 wrote: »

The new law did not apply where the notice was served before the coming into force of the act. Section 42 is now repealed and can't be used for the first time.

Section 42 is only repealed for further Part 4 tenancies which come into being after the commencement of the amendment.

"Where a further Part 4 tenancy has commenced on or before the commencement of this section, then section 42 shall continue to apply to that tenancy as if subsections (1) and (4) had not been enacted."

76544567

I would give them a reason anyway, in case there is some as now unknown meaning that you have to give a reason.
The reason can be "I am exercising my right to end this part 4 tenancy at this time".

Michael D Not Higgins

76544567 wrote: »

I would give them a reason anyway, in case there is some as now unknown meaning that you have to give a reason.
The reason can be "I am exercising my right to end this part 4 tenancy at this time".

Certainly include a reason since the RTB have previously ruled that section 62. (e) applies and a reason must be given. (I have issue with this since a further Part 4 is defined in the Act as a new tenancy in section 41)

Manzoor14

Thanks all! Unfortunately in this case, i'm the tenant!

Its been 18 months since my last rent review (~20% increase) and they're proposing another 25% rent increase from May. Located in RPZ.

So as far as I can make out, my choice is either to take the rent increase or say no. If I say no, they'll surely invoke their Further Part 4 rights to terminate the tenancy and then just re-rent it out at a higher rate.

I don't think i've any other options, or am I missing something?

76544567

Manzoor14 wrote: »

Thanks all! Unfortunately in this case, i'm the tenant!

Its been 18 months since my last rent review (~20% increase) and they're proposing another 25% rent increase from May. Located in RPZ.

So as far as I can make out, my choice is either to take the rent increase or say no. If I say no, they'll surely invoke their Further Part 4 rights to terminate the tenancy and then just re-rent it out at a higher rate.

I don't think i've any other options, or am I missing something?

He can't increase the rent more than 4%. And even then only 2 years and 90 days after your last increase.
But here is the stupidity of the new rules.

If your landlord wants to bring the rent up nearer to market rates, even if you agreed to pay more and he wanted you to stay it is disadvantageous to him. So it's in his best interests to end the tenancy.
Then he has options for what he does with his property next. Should he let you stay after the end of the part 4 it severely limits his future earnings and options with that Property.

With the new rules the landlord would be an idiot to continue with the part 4. That's the mess that has been made of the rental business.

davindub

Manzoor14 wrote: »

Thanks all! Unfortunately in this case, i'm the tenant!

Its been 18 months since my last rent review (~20% increase) and they're proposing another 25% rent increase from May. Located in RPZ.

So as far as I can make out, my choice is either to take the rent increase or say no. If I say no, they'll surely invoke their Further Part 4 rights to terminate the tenancy and then just re-rent it out at a higher rate.

I don't think i've any other options, or am I missing something?

When does your tenancy term expires?

Manzoor14

76544567 wrote: »

So it's in his best interests to end the tenancy.
Then he has options for what he does with his property next. Should he let you stay after the end of the part 4 it severely limits his future earnings and options with that Property.

With the new rules the landlord would be an idiot to continue with the part 4. That's the mess that has been made of the rental business.

That pretty much sums up what I was thinking as well. Nothing formal yet, it was just mentioned briefly, so i'll see how it goes before official notification is given etc. Worst part is, I planned on moving out in September anyway so I don't fancy having to look for another place for a short term stay

davindub wrote: »

When does your tenancy term expires?

Moved in November 2012, Part 4 tenancy until November 2016. Further Part 4 tenancy began November 2016, so due to expire November 2020.

davindub

Manzoor14 wrote: »

That pretty much sums up what I was thinking as well. Nothing formal yet, it was just mentioned briefly, so i'll see how it goes before official notification is given etc. Worst part is, I planned on moving out in September anyway so I don't fancy having to look for another place for a short term stay



Moved in November 2012, Part 4 tenancy until November 2016. Further Part 4 tenancy began November 2016, so due to expire November 2020.

The new legislation does not apply to your further part 4 tenancy.

I hate to see LL's / Tenants who try to find grey areas. He/she probably thinks they have found a loophole to exploit you with. But unfortunately any term of a contract is rendered void if it contravenes legislation (RTB act)

Personally, I would agree to the rent increase and don't pay it. By then the probation period will just about have passed (assuming it ends on the day the rent is due, if not pay one month at the higher rate and deduct from the next month to cumulatively balance, this is not withholding rent either btw, you are balancing out an overpayment).

The LL cannot move to evict you for non performance of a void term (any term that contravenes legislation is void).

4ensic15

Michael D Not Higgins wrote: »

Section 42 is only repealed for further Part 4 tenancies which come into being after the commencement of the amendment.

"Where a further Part 4 tenancy has commenced on or before the commencement of this section, then section 42 shall continue to apply to that tenancy as if subsections (1) and (4) had not been enacted."

That is subsection 2. The relevant part is subsection 3!

"(3) Where, before the commencement of this section, a notice under section 42 of the Act of 2004 has been served on a tenant, then that section shall continue to apply to that notice as if subsections (1) and (4) had not been enacted."

That sub=section wouldn't mean anything if your proposition was correct. All yours means is that a further part 4 does is lasts 4 years rather than 6 years. To terminate under Section 42 notice had to have been served.

Michael D Not Higgins

You're incorrect. That amendment only relates to repealing section 42, not about the length of part 4 and further part 4 tenancies. The phrasing is unambiguous, although appears redundant for subsection 3. I don't know the reason for this but perhaps it's for clarity's sake.

4ensic15

Michael D Not Higgins wrote: »

You're incorrect. That amendment only relates to repealing section 42, not about the length of part 4 and further part 4 tenancies. The phrasing is unambiguous, although appears redundant for subsection 3. I don't know the reason for this but perhaps it's for clarity's sake.

What you are saying is that sub-section 3 needn't be there at all. There is a presumption of non-redundancy in statutes. The two must be read together. You can be sure any ambiguity will be resolved in favour of the tenant. It is as plain asa pikestaff that notice must have been issued before the section came into force.

Michael D Not Higgins

Explain why you would think one takes precedence over the other. If take it that both refer to the old law applying during the transition therefore the interpretation should be the old law applies.

The_Conductor

Simple rule of thumb- the legislation in force at the time of the commencement of the tenancy- is the legislation that applies- regardless of what the current law is. Aka- a pre-existing tenancy which commenced under the old legislation- continues to be governed by the old legislation- regardless of whether, or not, the old legislation is repealed or wholly replaced. It can give rise to situations where three identical apartments in a row- can have tenants with three different sets of entitlements- based purely on when they moved in.

This type situation is not unique to tenancy law- it applies in all legislative situations- it can be damn confusing, including for those tasked with explaining the legislation, and the civil servants involved in drafting the legislation..........

Claw Hammer

The_Conductor wrote: »

Simple rule of thumb- the legislation in force at the time of the commencement of the tenancy- is the legislation that applies- regardless of what the current law is. Aka- a pre-existing tenancy which commenced under the old legislation- continues to be governed by the old legislation- regardless of whether, or not, the old legislation is repealed or wholly replaced. It can give rise to situations where three identical apartments in a row- can have tenants with three different sets of entitlements- based purely on when they moved in.

This type situation is not unique to tenancy law- it applies in all legislative situations- it can be damn confusing, including for those tasked with explaining the legislation, and the civil servants involved in drafting the legislation..........

The law in place at the time applies unless the contrary intention appears. The Residential Tenancies Act made numerous changes to existing tenancy agreements when it was enacted. the right to assign for example.

There is also a presumption against redundancy. Superfluous words are never used.

There is also the maxim T expressio unis est exclusio alterius (“to express one thing is to exclude another”) which allows the courts to imply that where an Act applies a rule to a particular situation, the Oireachtas intended to confine the rule to that situation, and not to apply it in any wider context.



The maxim was applied in Kiely v Minister for Social Welfareand again in O'Connell v An t-Ard Chlaraitheoir.93 It was succinctly illustrated by Henchy J in Keily when he said:

“The fact that article 11 (5) allows a written statement to be received in evidence in the specified limited circumstances means that it cannot be received in other circumstances: expressio unius est exclusio alterius”.

The fact that existing notices are not affected means that future notices are.

athtrasna

Mod note

This discussion has crossed a line into legal discussion far beyond the remit of this forum. If you would like to continue that discussion please take it over to the appropriate forum, thanks.

Michael D Not Higgins

The amended law on RPZ and rent reviews applies to all tenancies where the rent review hasn't already commenced at the time of commencement. You're in a RPZ so your next rent review must be in line with the new amendments. This can't be until after 24 months have passed since the last review and can only be 4%.

They could terminate the tenancy under the old section 42 arrangements if you don't agree to the rent review but they are still bound by the review limits for new tenancies so you should just tell them they can only raise it by 4% when your 24 months are up with 90 days notice. If they threaten you with eviction, you can say they'd be bound to 4% for someone new as well.

I doubt they're savvy enough with the understanding of the amendments considering their actions to date so it's best to lay the cards on the table to prevent backing then into a corner. I'd suggest rejecting the new review and send them the RTB page on rent reviews and RPZs and take it from there.

Manzoor14

Long post warning!! There's been some updates since I posted last March, so i'll add them in to close out this scenario. To summarise the OP, basically my landlord wanted to increase the rent from May 1st, (from €1250 to €1600) despite my previous increase only being 18 months before. I said i'd be happy to discuss a rent review in a number of months time, and we could discuss what the market rates were then (and text him the same). So they said they'd wait a few months. As suggested by some posters above, they should have kicked me out there and then under the Further Part 4 tenancy rules. But they didn't and I got a stay of execution!

Only 5 or 6 weeks later (around the middle of June), they informed me that the rent would be increasing to 'market rate' from July 1st, and could I give them details of what the market rate was. I sent them links to the RTB RPZ calculator, a link to the sample notice of rent review letter and a link to the CSO quarterly stats. Few hours lately I got a phone call saying I had to provide them with the market rate value that I would pay, and that if I didn't give them a figure i'd be reneging on my deal that I had text him (I wasn't sure what deal he meant, and reading back my texts, there was nothing about a 'deal' besides saying i'd discuss a rent review in a number of months and we could discuss market rates then)!

Anyway, I asked him to give me a figure that he thought the market rate was, but he wouldn't. He just kept insisting it was up to me to provide a figure (despite him having mentioned a figure of €1600 to me back in March!), and that 'any old eejit could look up the going rates on Daft'. I asked why he couldn't do that, his reply 'I don't have time to be messing about with that, i've 6 properties to look after so can't be doing it for each place. What's the maximum you are happy to pay?'. I told him I was happy paying what I am currently paying.

At this stage I mentioned that under the new regulations, when the time came for a rent review, the maximum he could increase by was 4% anyway. His response was 'the new regulations don't apply to me, as I wasn't one of these landlords who increased the rent by €50 each year.'. I pointed out that if he had increased the rent to €1600 on May 1st (as he previously wanted to do) that our rent would have increased by €550 since we moved in in November 2012, and actual increase of over €100 per year on average. He didn't have much of a response to this bar to mention that in our current rent he wasn't charging us for two parking spaces (we don't have any private parking space :rolleyes:), for the property tax, management fees or water tax (which I paid!).

After a bit more back and forth, he suggested that he was looking to sell the apartment, or maybe move his daughter into it in September when she was going to college. But that'd he reconsider both these options if I gave him a market rate figure within 3 days, and he'd knock 10% off it for my hassle. :rolleyes:

I told him I wouldn't be giving him a figure, if he wanted to increase the rent, to provide us with either an official rent review notice (i'd already sent him a link to the RTB sample notice) or give us notice of eviction. Up until this point we were both very cordial, and there was no anger etc (although I was getting frustrated with the back and forth, but I think my politeness was starting to infuriate him a little!), but when I mentioned eviction he got a little angry and said that eviction was a very strong word, and he didn't like using it, but if it came to it, and I didn't give him a market rate figure in 3 days, that he'd hand deliver a notice of eviction himself. I said no problem, chat to you in a few days. As mentioned in the OP I plan on moving out around September time anyway, so with him required to give me 112 days notice, luckily it suits me ok anyway.

Anyway, a few weeks passed and I heard nothing, but he arrived at the door the other day with a notice of eviction. He took a picture of us holding the notice (presumably to show it was delivered) and then asked did I want to buy the apartment! :P Anyway, had a read of the eviction notice, turns out he got his calculations wrong and has only given us 104 days instead of the required 112 days notice.

I'm not sure what to do next, I feel like he just tried to bully me into a rent increase so i'm tempted to log the invalid notice of eviction with the RTB, just to give him some comeuppance. Then again I might just let it rest and move out as planned.

Anyway, apologies for the long post, and it strayed a little off topic at times, but just said i'd post it to give some closure to my OP. Thanks again to all who gave me advice a few months back as well.

Edit: Some of the figures given in my OP weren't 100% accurate, as I didn't want to give exact details in case he stumbled across this thread back in March and suspected it was me! This post contains correct figures and dates.

gizmo81

Manzoor14 wrote: »

Long post warning!!

Completely inappropriate behaviour. This guys needs taking to the RTB.

So cheap he wouldn't even send the notice by registered post.

Michael D Not Higgins

gizmo81 wrote: »

Completely inappropriate behaviour. This guys needs taking to the RTB.

So cheap he wouldn't even send the notice by registered post.

It's possible he lives nearby and it suits him to drop it off personally rather than go to the post office.

OP, you're fully in the right here. The landlord has no mechanism in the law to make you come up with the new rent level and it seems like he was still giving the wrong notice, since if it was 24 months in July, he'd still have to give 90 days notice of the rent coming in, so October time.

Since you're leaving anyway, I'd start looking at a move now. Don't bother with the RTB, that'll just waste everyone's time especially your own since you're not even trying to stay. It's not like he's going to be fined for a notice of termination with the date being a week early on it.

If you really want to get him back, do up a letter for the next tenant stating what your current rent is and work out the allowed rent for the next letting and post it to them after you've left. It's likely he's going to bump up the rent more than he's allowed and the new tenants could do with that information and deal with it as they like.

gizmo81

gizmo81 wrote: »

So cheap he wouldn't even send the notice by registered post.

I'd call it smart, I think hand delivering important documents and getting photographic evidence is a very wise move.

Registered post is far from guaranteed to cover you in the event of a tenant denying to have received something.

Also as above if he lives nearby why would he bother posting it?

gizmo81

Dilan Broad Flea wrote: »

I'd call it smart, I think hand delivering important documents and getting photographic evidence is a very wise move.

Registered post is far from guaranteed to cover you in the event of a tenant denying to have received something.

Also as above if he lives nearby why would he bother posting it?

Sorry, we agree to disagree but i find it invasive.

How can the tenant deny it when it's signed for?

Michael D Not Higgins

gizmo81 wrote: »

Sorry, we agree to disagree but i find it invasive.

How can the tenant deny it when it's signed for?

A tenant could refuse to sign for it. They'd then be obliged to deliver it personally.

gizmo81

Michael D Not Higgins wrote: »

A tenant could refuse to sign for it. They'd then be obliged to deliver it personally.

Fair enough, some mystic meg powers there to know what's in the registered post.

Also a tenant is fully in their rights not to be photographed.

Michael D Not Higgins

gizmo81 wrote: »

Fair enough, some mystic meg powers there to know what's in the registered post.

Also a tenant is fully in their rights not to be photographed.

That's true, the tenant is allowed a right to privacy at their home. Delivering it in person is enough according to the RTA but more difficult to defend in front of the Board.

Another allowed method is affixing the notice to the property. The removal of the notice within 3 months is an offense and it could be photographed without the tenant being in the photo.

gizmo81

gizmo81 wrote: »

Sorry, we agree to disagree but i find it invasive.

If you find that invasive you have little to worry about. We aren't taking about an inspection etc, there is no absolutely nothing to stop a LL ringing the door bell of his house and delivering something it would not violate any peaceful enjoyment rule.

How do you survive an encounter with a delivery man or the tv licence inspector?

gizmo81

Dilan Broad Flea wrote: »

gizmo81 wrote: »

Sorry, we agree to disagree but i find it invasive.

If you find that invasive you have little to worry about. We aren't taking about an inspection etc, there is no absolutely nothing to stop a LL ringing the door bell of his house and delivering something it would not violate any peaceful enjoyment rule.

How do you survive an encounter with a delivery man or the tv licence inspector?

There's no need to be rude.

Yes I find it invasive to get my photo taken by my landlord.

4ensic15

I saw two cases recently in the RTb where tenants denied getting notices. The notices were left under the door of the apartments by the landlords. It is a total pain trying to prove the tenants are liars.

Manzoor14

Thanks All. Just to clear up a few questions. He lives about 20 mins away, but I believe its on or close to his route to work. And in fairness, he mentioned he'd be hand delivering it on the phone a few weeks ago.
Also, his reason for eviction is that he's selling the place, so there's a possibility that there'll be no new tenant.
My biggest worry at the moment is about getting my deposit back. Based on all the above, I wouldn't be surprised if he tries to keep it, and he has no reason to really as the apartment is probably in better condition than when I moved in!