Terminating Tenancy before Starting

itgirl268

Hi all im desperate if advise. Yesterday in a panic I viewed a room in a shared house and handed over a months rent and months deposit. Im now regretting it the neighbourhood is rough and im nervous about it. No lease was signed as he had to write it up. However when i rang him there to say i changed my mind and want my money back he says he wont give back my deposit as I have wasted his time? Is this legal even though theres nothing on paper except a reciept that he took the money?
I havnt moved in yet either...
Desperatly in need of advise.

Samuel T. Cogley

You'd have to go the small claims route, however he will be allowed a small amount of 'damages' as you did waste his time. That said we're talking less than a week here. It's not going to be hard to find someone to occupy the room.

davindub

There is no basis for keeping the deposit.

athtrasna

Who is "he", the agent or the landlord? Does the landlord live in the property?

itgirl268

It was within just over 24hours. I dont even have a key yet! Im not due to move in until Sunday!!! He is the Landlord, its privately owned. What are my rights though in this situation?

davo10

itgirl268 wrote: »

It was within just over 24hours. I dont even have a key yet! Im not due to move in until Sunday!!! He is the Landlord, its privately owned. What are my rights though in this situation?

You actually don't need to have signed a contract, the paper contract just formalises the agreed terms, handing over the deposit/rent legitimises the tenancy.

Does the landlord live in the property?

jamesthepeach

I assume the landlord spent time advertising, filtering applicants to invite to viewing, inviting them, making time to be at the viewing, reviewing applicants and picking out yourself and then dealing with yourself. Probably then banking the deposit and changing over bills, removing the advert etc. And now no rent during the downtime to sit the mess out.

All wasted time and money.

So at the moment I think he is probably just annoyed and over reacting and will calm down. But he is entitled to something for all of that.

How much do you think all of that time is worth?
Speak to him and make him an offer based on that and I'm sure you can come to an arrangement that makes up for wasted time.

The_Conductor

itgirl268 wrote: »

It was within just over 24hours. I dont even have a key yet! Im not due to move in until Sunday!!! He is the Landlord, its privately owned. What are my rights though in this situation?

Nil.
If you go to the Gardai they will tell you its a civil matter between you and the individual concerned.
He/she has no right to keep your deposit- other than in lieu of any costs they incur in reletting the room.

If you're moving in somewhere else- if the landlord lives there- you are not a tenant- you are living there 'under license' and are not entitled to the protections of the Residential Tenancies Act.

In this instance- I would appeal to the better nature of the individual concerned- as regardless of what you've given them, it'll probably cost a hell of a lot more to chase it. Perhaps you can come to a common ground with them- it might not be a 100% refund for you- but it might be something you can live with.

It is a fairly crap thing for the owner to do- they do not have the moral high ground here- however, morals appear to be in short supply these days........

davindub

The LL is not entitled to keep the deposit or make deductions especially as financial damages are non existent.

Unless the deposit and rent was specifically forfeit in your oral agreement you are entitled to it back in full.

Just use the small claims procedure and don't waste time.

itgirl268

No the Landlord does not live there. He is just being difficult

RossieMan

Try asking him if he keeps 100 can you get the rest back. An expensive lesson for you, but better than nothing.

The_Conductor

itgirl268 wrote: »

No the Landlord does not live there. He is just being difficult

If he does not live there- and you have not signed a lease- advise him that while you'd rather deal with him directly, for both your sakes, that if he does not return your rent and deposit promptly, that you will unfortunately, be obliged to lodge a formal complaint with the Residential Tenancies Board.

He is entitled to deduct reasonable additional costs for advertising the property- however, as you hadn't moved in- I'd imagine this would be minimal.

The landlord not living in the property is key to this- i.e. it is a formal tenancy- and not a license agreement (or not- as you haven't signed anything thus far).

Hes being a dick- one chance- warn him return the rent and deposit- or have a case lodged against him.........

Samuel T. Cogley

davindub wrote: »

The LL is not entitled to keep the deposit or make deductions especially as financial damages are non existent.

Unless the deposit and rent was specifically forfeit in your oral agreement you are entitled to it back in full.

Just use the small claims procedure and don't waste time.

It's with the RTB so the LL's hand will be forced but in either scenario: RAR or a letting there is outlay involved in finding the tenant, people your refuse etc. If the property was to be let on the 1st and it then takes until the 7th to let it because of the OP the LL is fully entitled to 'damages' for that week.

davo10

Samuel T. Cogley wrote: »

It's with the RTB so the LL's hand will be forced but in either scenario: RAR or a letting there is outlay involved in finding the tenant, people your refuse etc. If the property was to be let on the 1st and it then takes until the 7th to let it because of the OP the LL is fully entitled to 'damages' for that week.

LLs are required to register tenancies with RTB, this one hasn't commenced, op confirmed that in thread title. How would RTB force the LLs hand?

Samuel T. Cogley

davo10 wrote: »

LLs are required to register tenancies with RTB, this one hasn't commenced, op confirmed that in thread title. How would RTB force the LLs hand?

Simply the possibility of the hassle would be enough for me - not that I'd get myself in this situation to start with. However you could be right, perhaps the RTB will not become involved in this sort of case, I simply don't know. Hopefully one of the guys with encyclopedic knowledge of RTB cases might settle this point.

Regardless of the dispute resolution mechanism, the LL is entitled to something here. Although as I say to avoid hassle I'd simply give the money back and move on - but then what's the point in taking the deposit on that day I suppose. As for a lease people need to get it out of their heads that verbal contracts are somehow less than written ones (not that you suggested that but it's a constant feature in this sort of OP).

itgirl268

What is the process with the Small Claims once i lodge the complaint? Is court involved? Sorry I'am new to all this

Samuel T. Cogley

itgirl268 wrote: »

What is the process with the Small Claims once i lodge the complaint? Is court involved? Sorry I'am new to all this

You can find it online here's some info from the citizens advice which will link you further. I'd ring the RTB first though as they may have jurisdiction and if they do the Small Claims Procedure will be precluded from assisting you.

It's technically the District Court but the initial stages are very informal, and usually it does not progress to a full hearing. The issue is that what usually happens is people ignore it, then you have to go down the route of enforcement and that can be very difficult against an individual. None of this is expensive, the court fee is €25 and the sheriff is pretty cheap also, just not always effective.

The RTB are generally better if you can use them - but check.

I can't stress enough that it would be much better to sort it out amicably with the LL. Depending on the area another option is sucking it and seeing for a month or two. If you've no written lease you would be entitled to leave within the first six months and then the RTB would have been available for sure. That horse sounds like it may have bolted.

itgirl268

Ya i think so too.. I rang to negotiate but hes not budging. Even mentioned the Small Claims Court, he is just so rude. I cant believe there are people like this to be honest!!!! He never told me the money was non-refundable and he just banged on and on about how everyone should know that it's not?

davo10

itgirl268 wrote: »

Ya i think so too.. I rang to negotiate but hes not budging. Even mentioned the Small Claims Court, he is just so rude. I cant believe there are people like this to be honest!!!! He never told me the money was non-refundable and he just banged on and on about how everyone should know that it's not?

To be fair op, there would seem to be fault on both sides. He could have taken a deposit from another interested tenant, as things stand he has to advertise and interview again, so you are not blameless here. Like other posters, I think you should get most of your money back, but I also think you should pay something for the inconvenience caused, you entered an agreement and you are now reneging on it.

itgirl268

davo10 wrote: »

To be fair op, there would seem to be fault on both sides. He could have taken a deposit from another interested tenant, as things stand he has to advertise and interview again, so you are not blameless here. Like other posters, I think you should get most of your money back, but I also think you should pay something for the inconvenience caused, you entered an agreement and you are now reneging on it.

i have offered to pay a weeks rent even two weeks rent (half the deposit) for ''wasting his time'' as he puts it, but he just wont listen to me and demands hes taking the full €300 even though i notified him within 24hours and I didnt even get a key to the place!!!!!

Samuel T. Cogley

Fair enough a week in completely reasonable. Ring the RTB and see if they should be the ones taking it on. If not then you can ring the local district court and ask them if you can go through them. If you're in central Dublin it might be worth going in yourself.

davo10

itgirl268 wrote: »

i have offered to pay a weeks rent even two weeks rent (half the deposit) for ''wasting his time'' as he puts it, but he just wont listen to me and demands hes taking the full €300 even though i notified him within 24hours and I didnt even get a key to the place!!!!!

You generally get the key the day the tenancy commences, not before. I understand how you feel wronged, but I also understand the LLs annoyance, particularly if he informed other people that the room was no longer available.

Mr. Incognito

Hi there.

The Smalls claims court is not appropriate. It does not have jurisdiction.

http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/81374D665C6EF0708025810D0038B970?opendocument&l=en

The following types of claim are excluded from the procedure:-

revenue, customs or administrative matters.
matters relating to the liability of the State for acts or omissions in the exercise of State authority.
the status or legal capacity of natural persons.
rights in property arising out of a matrimonial relationship, maintenance obligations, wills and succession.
bankruptcy proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings.
social security.
arbitration.
employment law.
tenancies of immovable property, with the exception of action on monetary claims.
violations of privacy.
defamation.

The appropriate contact here is the PRTB. https://www.rtb.ie/

You do not have to have a Tenancy registered with them

The Landlord is entitled to keep a portion of the Deposit if you move out without proper notice in the form of readvertising. Here he is not entitled to retain as he had to advertise the property anyway. You paid a deposit but you are allowed a reasonable cooling off period.
In circumstances where you asked for it back within 24 Hours his loss in minimal and to the extent it is continuing it is caused by his actions- his refusal to give over the money.

If you bring a claim to the PRTB you may be awarded damages for this unlawful withholding of monies.

Best of luck with it.

Samuel T. Cogley

I don't wish to debate you as you're no doubt correct but if you'll indulge me in a further explanation what may also benefit the OP?

Is this not a monetary claim?

Furthermore, and I'm on thin ice here on the debating front :pac:, is this a tenancy as the rent has been returned, is this not simply a security deposit and therefore simple contract?

Please be gentle...

wordofwarning

Samuel T. Cogley wrote: »

I don't wish to debate you as you're no doubt correct but if you'll indulge me in a further explanation what may also benefit the OP?

Is this not a monetary claim?

Furthermore, and I'm on thin ice here on the debating front :pac:, is this a tenancy as the rent has been returned, is this not simply a security deposit and therefore simple contract?

Please be gentle...

My understanding was when the RTB was set up, all tenancy related issues were to go through the RTB. It would make the courts more efficient, as they would no longer be dealing with tenancy disputes. Sure the RTB were going to literally change the world as we know it when it was set up! A lien, efficient organisation just dealing with tenancy issues

It is weird what falls under the small claims court. Like they refuse to take on private clamping cases. Yet they will take on a home owner versus license case.

http://www.irishtimes.com/life-and-style/motors/drivers-can-bring-clamping-firms-to-court-without-costs-1.927066

It seems the small claims court has discretion on what them deem as falling under them

davo10

Mr. Incognito wrote: »

Hi there.

The Smalls claims court is not appropriate. It does not have jurisdiction.

http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/81374D665C6EF0708025810D0038B970?opendocument&l=en


The appropriate contact here is the PRTB. https://www.rtb.ie/

You do not have to have a Tenancy registered with them

The Landlord is entitled to keep a portion of the Deposit if you move out without proper notice in the form of readvertising. Here he is not entitled to retain as he had to advertise the property anyway. You paid a deposit but you are allowed a reasonable cooling off period.
In circumstances where you asked for it back within 24 Hours his loss in minimal and to the extent it is continuing it is caused by his actions- his refusal to give over the money.

If you bring a claim to the PRTB you may be awarded damages for this unlawful withholding of monies.

Best of luck with it.

That's interesting. I knew the tenancy did not have to be registered in order for the RTB to give an adjudication, but I would have assumed that the tenancy would actually have had to commence before the RTB could rule on problems with the tenancy. The ops tenancy hadn't actually begun, there was an agreement for one, but it hadn't actually occurred yet. How do you rule on a tenancy which hasn't commenced?

Would this (and I too ask you to spare the whip because I could be completely wrong) not be a case of issues with a contract rather than a tenancy?

Browney7

Op, if he's not refunding the deposit you have to move in for the month then, no point losing a wedge of dosh.

mrslancaster

Browney7 wrote: »

Op, if he's not refunding the deposit you have to move in for the month then, no point losing a wedge of dosh.

sounds like the best option if OP moves in as suggested and gives LL 28 days notice on day one then LL would have no reason to withold any of the deposit

davindub

Samuel T. Cogley wrote: »

I don't wish to debate you as you're no doubt correct but if you'll indulge me in a further explanation what may also benefit the OP?

Is this not a monetary claim?

Furthermore, and I'm on thin ice here on the debating front :pac:, is this a tenancy as the rent has been returned, is this not simply a security deposit and therefore simple contract?

Please be gentle...

Well now that it is clear the LL does not live in the property, the RTB is the correct process.

Technically, it is a simple possession of a sum of money issue rather than a contract. Residential leases require a written contract under the RTB act so an oral contract would not be binding on the tenant. I would be 90% certain that the deposit and rent was paid in anticipation of the contract being entered into and this would be the case in any circumstance where an contract was to follow. Otherwise the LL could stick any term in the contract and the tenant would be obliged to accept or face penalty.

This is the same principle where there is sale agreed on a property but contracts not formalised.

As such you could reasonably present an argument to hear the case outside of the RTB, but you might have to go to the HC to establish that and the decision would probably be that the act intended to handle all residential cases except for the listed exceptions even if an contract had not yet been entered into.

jamesthepeach

If a tenancy exists then the tenant has to give his notice whether he lives there of not. He will owe rent for that notice period. And he will have to give notice.
As far as the landlord is concerned he would have a tenant and the tenant just hasn't collected the keys etc.

All the tennant can do in that case is act like a tenant.

Get the keys and pay the bills for the months whether he lives there or not.

Better off if no tenancy exists. just talking it out with the landlord and both coming to an agreement.
No tenancy no RTB.

Mr. Incognito

Just general comments.

1. Was there a tenancy. Yes. The Landlord accepted money. The contract was made.

2. Is the landlord entitled to keep the money. Technically yes. But only to the extent he has a loss. In circumstances where he had to advertise anyway (and the withdrawl of the tenant did not make him have to readvertise) the loss is negligable.

3. Can the Landlord seek specific performance- i.e force the tenant to comply with his obligations. No. The Tenant and Landlord can terminate without cause for the first six months each. A security deposit is to protect against losses. Here there are no losses.

4. Is this not a monetary claim only such that it comes within the jurisdiction of the small claims court? No. It is a security deposit which relates to a tenancy and is not a pure monetary claim.

Hopefully that helps.