Recent RTB Tribunal determination on termination notices at 4 years expiry of part-4

GGTrek

It was published only today (even though it was decided in May) and it confirms again the validity of section 34(b) notices: https://www.rtb.ie/docs/default-source/tribunal-reports/tr0417-002294-dr0217-32427-report.pdf?sfvrsn=0

The most important points are in the reasoning which can be used as a precedent for all landlords who decide to get out of landlording or of a bad tenant without too much aggravation.

"Finding 1:
The Notice of Termination as served on the Respondent Tenants on **** is valid
Reason:
Section 34 of the Residential Act, in relevant part, states that a part 4 tenancy may be terminated by the Landlord if...
(i) A Notice of Termination giving the required period of notice is served by the landlord in respect of the tenancy, and
(ii) That period of notice expires on or after the end of the period of 4 years mentioned in section 28 (2) (a) in relation to the tenancy. There is no dispute but that the notice of termination in the present case was served prior to the end of the part four tenancy in this case, and expired thereafter. The Landlord was clearly entitled to serve the notice in question, without having to provide a ground under the table to section 34 of the Act. While the notice was required to give a “reason” under section 62 of the Act, that is not the same as a ground under section 34. The notice in this case clearly specified a “reason”, being the right to terminate the tenancy under section 34(b). The notice in question also complied with all the other requirements of section 62 and it is accepted that it was served in accordance with section 6 of the Act. As such, the notice of termination is valid and the Landlord is entitled to enforcement of the notice.

Finding 2
A Statutory Declaration was not required to accompany the Notice of Termination under Section 34(sic) of the Residential Tenancies Act."

The finding 2 should have said under Section 34(b). So I am glad the RTB tribunal has finally created a clear precedent which can be used in the future.

BTW this is a sample of a Section 34(b) notice:
https://www.rtb.ie/docs/default-source/notice-of-terminations-landlord-pdf/sample-notice---terminating-before-a-further-part-4-commences-16-01-2017.pdf?sfvrsn=2
it is the last and only unfettered property right left to landlords in Ireland, no need to explain or justify anything to tenant, 4/6 years of part 4 have terminated, the tenant has to vacate if landlord does not wish the tenant to stay for whatever reason, no conditions attached, no bureaucracy attached. It was already under attack from the likes of AAA (changed their names), Sinn Fein, Threshold and the socialist/communists likes. My fear is that the govvie will try to abolish it right before next Christmas (every Christmas they give a present to Threshold, the far left ONGs and parties and the screaming media: in so doing it will damage irreparably the rental market) even though the law cannot be retroactive, so I do not know how they will frame it.

Michael D Not Higgins

A small victory for landlords from the RTB. At least there's some balance.

This is a clear interpretation of the legislation. The drafters of the legislation always intended to be able to terminate after a Part 4 cycle, otherwise what's the point of the Part 4 cycles.

subrosa

This has always been the case there's nothing particularly new in the tribunal decision. Section 34(b) can be used to prevent a further part four tenancy coming into being. That's the way it's always been.

GGTrek wrote: »

even though the law cannot be retroactive, so I do not know how they will frame it.

Removing this provision is as simple as deleting 34(b) from the act. The only issue with retroactive effect would be that notices already issued would not be subject to the repeal.

GGTrek

subrosa wrote: »

This has always been the case there's nothing particularly new in the tribunal decision. Section 34(b) can be used to prevent a further part four tenancy coming into being. That's the way it's always been.

GGTrek wrote: »

even though the law cannot be retroactive, so I do not know how they will frame it.

Removing this provision is as simple as deleting 34(b) from the act. The only issue with retroactive effect would be that notices already issued would not be subject to the repeal.

I disagree completely on "this has always been the case". Please point me to RTB Tribunals determinations on section 34(b) that are not the Dunivya case or the case I quoted: there is very little case law on section 34(b).

You line of thinking on section 34 (b) is the same as the Irish extreme left parties (socialists / communists): "I put a foot inside a property: the property becomes mine forever". There are plenty of socialist thinking solicitors and barristers in Ireland (or actually in many countries I lived), this does not mean that their political aims should become the law for the rest of us.

AAA and Sinn Feinn actually tried to remove section 34(b) in their infamous "Anti-eviction" bill in January this year and it was shot down by just one vote due to abstention from FF.

I have served to everyone but two of my tenants a section 34(b) notice just to prevent the possibility the govvie decides to pander to the socialists/communists again.

jamesthepeach

Michael D Not Higgins wrote: »

A small victory for landlords from the RTB. At least there's some balance.

This is a clear interpretation of the legislation. The drafters of the legislation always intended to be able to terminate after a Part 4 cycle, otherwise what's the point of the Part 4 cycles.

How long in advance of the end of a part 4 can a landlord give notice though.
Say the landlord has a tenant who comes to the end of a part 4 in June 2018 and is expecting a Christmas present (as ggtrek puts is so we'll) of a legislation change in December 2017. Can he give notice to quit to his tenant in December 2017 to take effect after June 2018?

The_Conductor

jamesthepeach wrote: »

How long in advance of the end of a part 4 can a landlord give notice though.
Say the landlord has a tenant who comes to the end of a part 4 in June 2018 and is expecting a Christmas present (as ggtrek puts is so we'll) of a legislation change in December 2017. Can he give notice to quit to his tenant in December 2017 to take effect after June 2018?

How long in advance- a minimum length in advance is specified- however there is no maximum. In theory- you could terminate the Part IV lease at the outset of the tenancy in writing- as its a new tenancy- you would be handing the tenant a defacto non-renewable 6 year lease.

Its not the intention of the clause- however- the stated intention was to give at least minimum notice (and it doesn't have to be a statutory declaration- just notice)- there is no maximum length specified- simply the notice has to expire immediately on the elapse of the Part IV tenancy?

GGTrek

There is no maximum notice period for a section 34(b) notice. However you have to be careful about technicalities: if there is a fixed term lease running you cannot serve it until the expiration of the fixed term (not written explicitly in the law, but this is the interpretation of RTB Tribunals). There is also another condition set by the overcomplicated RTA in section 65: "(4) If the duration of the tenancy concerned is less than 6 months, a period of notice of more than 70 days may not be given in respect of it." So there is a limit on maximum notice periods that can be given in the first 6 months and therefore you cannot provide a section 34(b) notice in the first 6 months of a tenancy.

jamesthepeach

GGTrek wrote: »

I disagree completely on "this has always been the case". Please point me to RTB Tribunals determinations on section 34(b) that are not the Dunivya case or the case I quoted: there is very little case law on section 34(b).

You line of thinking on section 34 (b) is the same as the Irish extreme left parties (socialists / communists): "I put a foot inside a property: the property becomes mine forever". There are plenty of socialist thinking solicitors and barristers in Ireland (or actually in many countries I lived), this does not mean that their political aims should become the law for the rest of us.

AAA and Sinn Feinn actually tried to remove section 34(b) in their infamous "Anti-eviction" bill in January this year and it was shot down by just one vote due to abstention from FF.

I have served to everyone but two of my tenants a section 34(b) notice just to prevent the possibility the govvie decides to pander to the socialists/communists again.

Yet again you turn out to be right GGTrek.
First part of the Christmas present is that now landlords have to inform the RTB that they are giving a tenant notice. I dont know if this is the case as of today or to happen for Christmas, but its a sign of more red tape for landlords to come.