Lease Verses Licence

Activewearuser

I recently attended a PRTB adjudication hearing. I am very interested to hear what other peoples experiences have been if they have gone to adjudication or tribunal hearing with the PRTB.

Baby01032012

Well what were your own views??
Ive attended a couple of them. My experiences were very positive...i found the adjudicator to very fair. I think once you have your paperwork in order and can calmly put your case across and show you have followed the regulations you should be confident of the outcome...independent witnesses can be important too...all depends on the specific circumstances though.

Activewearuser

Just a note of caution to anyone looking to rent a property, I recently rented and signed a licence agreement. I was unaware TBH of what was signed (stupidly) until there was an issue and did not (still struggling to determine) the difference between a licence and lease.

A licence allows the landlord to opt out of the landlord tenant arrangement and you will not be covered under disputes brought to the RTB. I have rented for over 12 years in various properties & never encountered this before.

Activewearuser

I had a number of issues with the landlord and had to vacate the property. On the advise of Threshold and PRTB we took a case. However it transpired that we had been given a licence agreement, not lease. We did not know the difference and presumed (stupidly or wrongly) that we were signing a lease. The property was advertised as a tenancy.

I found the tribunal to be a horrible experience. The adjudicator seemed to be very much in favour of the landlord.

Baby01032012

Was the landlord living in the accomodation also?

Activewearuser

No he was not. He lived in the house beside us. 6 houses on the property, all with their own front & back doors. Shared common grounds and parking

Paulw

This might be a useful resource too -
https://www.rtb.ie/media-research/publications/leases-and-licences

?Cee?view

Paulw wrote: »

This might be a useful resource too -
https://www.rtb.ie/media-research/publications/leases-and-licences

From that link:

Parties cannot contract out of a tenant’s entitlement to a Part IV tenancy (Section 54 of the Residential Tenancies Act 2004). Any agreement between two parties, which purports to be a licence for the purposes of avoiding the application of the Part IV of the Residential Tenancies Act 2004, will not operate to deny an individual’s right to a Part IV tenancy.

Name of Contract
Please remember:
Simply entitling a letting agreement a Licence does not automatically mean it will be considered a Licence and not a Lease. Neither the RTB nor the Courts will just accept the title of a document but will look at the actual terms and substance of the agreement when assessing whether it has jurisdiction to deal with it.
A tenant should always examine the terms of a tenancy agreement prior to signing it and know exactly what type of agreement is involved and whether it is a lease or a licence. Remember, the RTB can only deal with “tenancies” and therefore does not have any jurisdiction to regulate genuine licence agreements.
The legislative definition of “tenancy” is quite broad however and if you are in any doubt as to the significance of any terms contained in your tenancy agreement, please consult your legal advisors.

Activewearuser

Thanks Paul I think in our situation renting a separate dwelling we should have been given a lease. Otherwise any landlord who lives on the grounds of a complex could opt to provide a licence agreement. I did query with the PRTB at an adjudication hearing if the landlord was right to provide a licence and not lease.

?Cee?view

Activewearuser wrote: »

Thanks Paul I think in our situation renting a separate dwelling we should have been given a lease. Otherwise any landlord who lives on the grounds of a complex could opt to provide a licence agreement. I did query with the PRTB at an adjudication hearing if the landlord was right to provide a licence and not lease.

Read the piece I posted from the RTB website. It's a settled rule of law long before the RTB was established that you can't avoid a lease just by calling it a licence. You however seem to have accepted that what you signed was a licence which may not be the case.

Activewearuser

?Cee?view wrote: »

Read the piece I posted from the RTB website. It's a settled rule of law long before the RTB was established that you can't avoid a lease just by calling it a licence. You however seem to have accepted that what you signed was a licence which may not be the case.

I did not accept so much as was told by the PRTB at recent adjudication hearing that we should have examined what we signed. I asked if the landlord was allowed to simply "otp out" of being a landlord and the adjudicator abruptly told me that he asks the questions, not me. :eek:

Baby01032012

Activewearuser wrote: »

No he was not. He lived in the house beside us. 6 houses on the property, all with their own front & back doors. Shared common grounds and parking

Did he retain access to your accomodation from his accomodation...ie was there an adjoining or communal door that he could freely enter your house..without going out of his main or back door and going in your main or back door?
If the answer is yes then its a licensee situation, if the answer is no then it was a tenancy..and you could invoke your RTA or part iv rights assuming you were there more than 6 months...its not necessary to have a tenancy agreement in place once it was a tenancy in all but name.

Baby01032012

Just read your reply...very strange behaviour by the adjudicator and strange decision...i would appeal.

?Cee?view

Baby01032012 wrote: »

Just read your reply...very strange behaviour by the adjudicator and strange decision...i would appeal.

Agreed.

https://www.rtb.ie/dispute-resolution/tribunals

Baby01032012

You have opened 2 threads on the same issue...which is not allowed here.
See my response on other thread. Id suggest appealing the decision.

Activewearuser

The hearing was last week so I will let you know the decision. I could write a book on the bad experience over the last few months, but I will just take away from this - know what you sign. I can guarantee most joe soaps applying for a tenancy as advertised would take it at face value that it is a lease. We were so happy to get the property & signed the agreement the day we collected the keys. I have never heard of any residential property being let via licence, more common for a car space. It is just a warning to all, to be careful.

?Cee?view

Baby01032012 wrote: »

Did he retain access to your accomodation from his accomodation...ie was there an adjoining or communal door that he could freely enter your house..without going out of his main or back door and going in your main or back door?
If the answer is yes then its a licensee situation, if the answer is no then it was a tenancy..and you could invoke your RTA or part iv rights assuming you were there more than 6 months...its not necessary to have a tenancy agreement in place once it was a tenancy in all but name.

The "if the answer is no" bit mightn't be so straightforward. It could still be a licence even if there's no retained access from the landlord's tenancy to the tenants. What's important is, had the tenant exclusive possession. If the landlord retained the right to enter at any time, whether through a shared entrance or not, then it may be a licence, as exclusive possession is an essential element of a tenancy.

Graham

?Cee?view wrote: »

The "if the answer is no" bit mightn't be so straightforward. It could still be a licence even if there's no retained access from the landlord's tenancy to the tenants. What's important is, had the tenant exclusive possession. If the landlord retained the right to enter at any time, whether through a shared entrance or not, then it may be a licence, as exclusive possession is an essential element of a tenancy.

In previous determinations the RTB have found a tenancy exists even where a landlord has kept a room for 'storage' with the right to access at any time.

On the surface this does appear to be a very odd decision by the RTB. I can only think there's either something unusual about the accommodation in question, or the RTB are now basing decisions on a Magic-8 ball.

Activewearuser

PRTB decision is pending, but the adjudicator pretty much said we were stupid for not knowing what we signed and pointed to the document & our signature. I was not really getting into the ins & outs of the tenancy on this post as it would bore you to tears. But just to warn people to be aware of the difference as the agent did not point out this was anything other than a normal tenancy arrangement and we were not provided with a copy of the "licence" until we requested a copy coming up to the RTB hearing.

Samuel T. Cogley

Activewearuser wrote: »

Just a note of caution to anyone looking to rent a property, I recently rented and signed a licence agreement. I was unaware TBH of what was signed (stupidly) until there was an issue and did not (still struggling to determine) the difference between a licence and lease.

A licence allows the landlord to opt out of the landlord tenant arrangement and you will not be covered under disputes brought to the PRTB. I have rented for over 12 years in various properties & never encountered this before.

License - is permission to be there. You enter into licensee agreements every day. If you pop around your friends for a cup of tea, there is a license agreement, walk into a shop to by a Mars Bar, licensee agreement and highly regulated contracts of sale of said Mars Bar, the law is like God: omnipresent, moves in mysterious ways and almost never of any use when you need it.

Lease - an agreement over a full dwelling, with exclusive use of at least a bedroom (IIRC). It's also a plethora of documents that various lanalord will ask you to agree to.

Tenancy rights - rights you have whether written into the lease or not, but they should be present in the lease.

PRTB - A now defunct organisation known as the RTB who in many cases would not know their arse from their elbow. Speak to FLAC (flac.ie) if you need some assistance dealing with the RTB process.

Whether a contract (because that's essentially what they are) is a lease or a licensee agreement is a matter of function not form. So I can write licencee agreement on it as much as I like. It doesn't make it so.

Samuel T. Cogley

?Cee?view wrote: »

exclusive possession is an essential element of a tenancy.

As much bar stood lawyering as been done on this, the same has happened on the flip side - 4ensic15 had linked some decisions which illustrated the point nicely but suffice it to say each case is going to turn on it's own individual circumstances at the moment.

haro124

Landlord (well receiver) backed down immediately when we put through an application with he RTB, so never got the full experience but it obviously scares some people!

Activewearuser

Sorry edited the RTB - bad habit! I will be interested to see how the RTB rule regarding this landlords right to decide a house with its own access and no right for the landlord to enter or retained right can be provided for via a licence. As I said there are a number of other properties on the land which the landlord rents, I did not want to engage with the other tenants but I wonder if they have licences or leases. None are registered with the RTB. My gut feeling is there is more going on here.

Samuel T. Cogley

Everyone calls it the PRTB, not to worry.

There are all sorts of 'dodges' to try and get around the RTA, each one of them generally shot down but that's not going to stop Paddy from Cavan who drives a van for a living thinking he knows more than a lawyer that's worked in the area for 30+ years.

One can only hope the resulting fine focuses the mind. I don't agree with the current legislation but if you want to play the game you play it by the rules.

?Cee?view

Samuel T. Cogley wrote: »

As much bar stood lawyering as been done on this, the same has happened on the flip side - 4ensic15 had linked some decisions which illustrated the point nicely but suffice it to say each case is going to turn on it's own individual circumstances at the moment.

What? Where's the bar stool lawyering? Exclusive Possession is an essential element of a tenancy. That's settled law with limited exceptions such as a right of inspection or an easement.

Samuel T. Cogley

?Cee?view wrote: »

What? Where's the bar stool lawyering? Exclusive Possession is an essential element of a tenancy. That's settled law with limited exceptions such as a right of inspection or an easement.

The bar stool lawyering refers to to the storage room, the sleeping there one night a week when I'm up on business malarkey attempting to cynically avoid the EP requirement. Have a read of the relevant threads on the subject, I don't want to turn this one in to yet another one of those threads.

4ensic15 was very generous in looking up a very good case on point, and without wanting to paraphrase incorrectly, in certain circumstances exclusive possession been met by the exclusive use of a bedroom.

Suffice it to say, for every possible scenario a barrack-room lawyer will come up with, you can guarantee someone has thought it through more completely. There's going to be an exception one of these days, but no one's been able to point a half decent one out yet in the relevant threads.

Samuel T. Cogley

Samuel T. Cogley wrote: »

The bar stool lawyering refers to to the storage room, the sleeping there one night a week when I'm up on business malarkey attempting to cynically avoid the EP requirement. Have a read of the relevant threads on the subject, I don't want to turn this one in to yet another one of those threads.

4ensic15 was very generous in looking up a very good case on point, and without wanting to paraphrase incorrectly, in certain circumstances exclusive possession been met by the exclusive use of a bedroom.

Suffice it to say, for every possible scenario a barrack-room lawyer will come up with, you can guarantee someone has thought it through more completely. There's going to be an exception one of these days, but no one's been able to point a half decent one out yet in the relevant threads.

Well student accomidation is a pretty big exception with 1000's living as licensees without a LL in sight.

Also why do the RTB state in their own definition of a licence that that its either person who "lives with their LL" or "who doesn't live with their LL but the LL retains right of entry and the right to move tenants around"

I have argued for a long time that people in houseshares renting room seperately are licensees, some agree and some here totally disagree despite the fact the RTB state the above and people renting rooms separately satisfy hardly any of the requirements to have a tenancy.

The fact is retaining a room for storage and thus giving continual access should mean anyone else renting there is a licensee, the fact the RTB may be finding otherwise points at them being wrong and in need of an overhaul.

Graham

Ephraim Acidic Sunshine wrote: »

Also why do the RTB state in their own definition of a licence that that its either person who "lives with their LL" or "who doesn't live with their LL but the LL retains right of entry and the right to move tenants around"

OP didn't mention he was subject to being moved around.

Graham

Graham wrote: »

OP didn't mention he was subject to being moved around.

Not necessarily talking about the op in that instance but replying to the other poster.

Samuel T. Cogley

Ephraim Acidic Sunshine wrote: »

Well student accomidation is a pretty big exception with 1000's living as licensees without a LL in sight.

Also why do the RTB state in their own definition of a licence that that its either person who "lives with their LL" or "who doesn't live with their LL but the LL retains right of entry and the right to move tenants around"

I have argued for a long time that people in houseshares renting room seperately are licensees, some agree and some here totally disagree despite the fact the RTB state the above and people renting rooms separately satisfy hardly any of the requirements to have a tenancy.

The fact is retaining a room for storage and thus giving continual access should mean anyone else renting there is a licensee, the fact the RTB may be finding otherwise points at them being wrong and in need of an overhaul.

But as it's been pointed out to you Nox about thousand times with linked precedences, decisions and cases it doesn't mean it's a license. Any 'overhaul' in the law will simply will state the law as it's currently being applied by the RTB - and rightly so.

The legal history of this is people don't like chancers.

Activewearuser

I received the adjudicators report, they rules that the agreement was a lease in everything but words. Basically the landlord trying to pull a fast as a rent a room scheme.

Which meant the tenancy should have been registered, but no reference to fining the landlord for not registering.