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84 days notice to leave apartment.

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  • 26-01-2018 12:13pm
    #1
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭


    A friend of mine wants to leave her apartment, she's found somebody to replace her, but the landlord requires 84 days notice because of the length she has stayed there. She has also rejected to having a new person move in.

    What does this mean? Does she have to pay rent for the next 84 days?

    Her housemate has also received this email. (Let's call my friend Mary)



    Dear Housemate

    Mary has requested permission to assign her tenancy in 1 Whatever Street, Dublin

    Such an assignment is strictly only permitted with the landlord’s permission. I have taken an instruction from the landlord, she is not willing to allow another assignment in respect of the apartment.

    Pursuant to the terms of the Residential Tenancies Act 2004 she is entitled to refuse permission.

    Mary can now terminate her tenancy due to the landlord’s refusal of permission for assignment.

    Mary's tenancy will therefore terminate on the 19th April, 2018.

    The landlord will not allow another person to move in, so her housemate now has to vacate the property. Is this normal? The housemate can however stay in the apartment as long as she pays the full rent by herself.

    Why can't her housemate get another housemate? She can't afford to pay for the place on her own so she'll have to move out.


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    #2
    ELM327
    Registered Users Posts: 21,990 ✭✭✭✭ELM327


    If it's in line with the terms of notice required, then yes.

    Unless the person replacing her can take over the rent - the LL cannot object to the lease being reassigned.


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    #3
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    No, she can propose the alternative tenant as part of an assignment, and the notice period can be shortened by agreement with the landlord when you discuss the assignment. The old tenant would only be liable for rent up to the point where the assignee takes over the tenancy.

    Things are different if the landlord is stubborn and refuses the assignment and won't agree on a shorter notice period. In that case, she may have to pay for the entire notice period. If she were to move out straight away, she would be liable for rent up to the point the landlord takes in a new tenant, with the landlord obliged to mitigate their loss, i.e. they have to let it as soon as they can.


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    #4
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    ELM327 wrote: »
    If it's in line with the terms of notice required, then yes.

    Unless the person replacing her can take over the rent - the LL cannot object to the lease being reassigned.

    The landlord has rejected to the lease being reassigned. I have edited my original post above with more info.

    This means her housemate is getting kicked out too. The landlord will not allow another person to take my friends' room.


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    #5
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    Michael D Not Higgins wrote: »
    No, she can propose the alternative tenant as part of an assignment, and the notice period can be shortened by agreement with the landlord when you discuss the assignment.

    The landlord has rejected the offer. See my edited post above for more info.
    Michael D Not Higgins wrote: »

    If she were to move out straight away, she would be liable for rent up to the point the landlord takes in a new tenant, with the landlord obliged to mitigate their loss, i.e. they have to let it as soon as they can.

    The rent is paid in full up until 18th Feb, so plenty of time for the new flatmate to move in without the landlord incurring any losses.


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    #6
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    JackieChang wrote: »
    The landlord has rejected the offer. See my edited post above for more info.



    The rent is paid in full up until 18th Feb, so plenty of time for the new flatmate to move in without the landlord incurring any losses.

    Has your friend spoken to the landlord about notice periods yet? That's the first step.

    Should the landlord still stick stubbornly to the notice periods, the only option is to move out and make an agreement on the rent owed based on the vacant period.


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    #7
    ELM327
    Registered Users Posts: 21,990 ✭✭✭✭ELM327


    My original reply was in response to a post with much less information which has since been edited.

    It was always my understanding that a LL could not refuse a reassignment and hold the existing tenant liable.

    It also sounds like this lease may not be a part4 tenancy.


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    #8
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    ELM327 wrote: »
    It was always my understanding that a LL could not refuse a reassignment and hold the existing tenant liable.

    Well the landlord has refused and will not allow anybody else in. The remaining tenant has to pay full whack.
    ELM327 wrote: »
    It also sounds like this lease may not be a part4 tenancy.

    What does this mean? Is that a good thing or a bad thing?


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    #9
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    ELM327 wrote: »
    My original reply was in response to a post with much less information which has since been edited.

    It was always my understanding that a LL could not refuse a reassignment and hold the existing tenant liable.

    It also sounds like this lease may not be a part4 tenancy.

    "(k) not assign or sub-let the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),"

    The landlord can deny any assignment but it has the effect of breaking any lease if the tenant requires (including fixed term lease). The landlord is entitled to notice as per the RTA 2004, but is also obliged to mitigate a loss if a tenant moves out early. The tenant is liable for rent during that notice period where the place has not been rented (taking into account the obligation to mitigate the loss).


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    #10
    ELM327
    Registered Users Posts: 21,990 ✭✭✭✭ELM327


    JackieChang wrote: »


    What does this mean? Is that a good thing or a bad thing?

    It means - if you're not a "tenant" and instead a "licensee" you are not bound by the PTRB/RTA requirements and are only required to give "adequate" notice which is not defined anywhere. Give 1 week and leave in that instance. (if it's a shared house and you are not a tenant but a licensee)
    Michael D Not Higgins wrote: »
    "(k) not assign or sub-let the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),"

    The landlord can deny any assignment but it has the effect of breaking any lease if the tenant requires (including fixed term lease). The landlord is entitled to notice as per the RTA 2004, but is also obliged to mitigate a loss if a tenant moves out early. The tenant is liable for rent during that notice period where the place has not been rented (taking into account the obligation to mitigate the loss).

    In laymans terms?


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    #11
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    ELM327 wrote: »
    It means - if you're not a "tenant" and instead a "licensee" you are not bound by the PTRB/RTA requirements and are only required to give "adequate" notice which is not defined anywhere. Give 1 week and leave in that instance. (if it's a shared house and you are not a tenant but a licensee)



    In laymans terms?

    There's nothing to suggest she is a licensee, this is a red herring.

    In layman's terms, they have to pay rent for the notice period where the property has not been occupied by the next tenant.


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    #12
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    Michael D Not Higgins wrote: »
    ....

    So it looks like this is the situation right now:

    1. My friend cannot facilitate a viewing and find a new housemate. The landlord has refused.

    2. Friend has to pay rent for the next 84 days even though she wants to move out.

    3. Her housemate has to leave or if she decides to stay, must live in the apartment by herself and pay full rent.
    Michael D Not Higgins wrote: »

    In layman's terms, they have to pay rent for the notice period where the property has not been occupied by the next tenant.

    But that's not fair. She has found the "next tenant" to replace her already, but the landlord has refused. The landlord can't lose out on money, rent isn't due for another three weeks.


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    #13
    ELM327
    Registered Users Posts: 21,990 ✭✭✭✭ELM327


    Michael D Not Higgins wrote: »
    There's nothing to suggest she is a licensee, this is a red herring.
    It's not a red herring, the use of the terms "housemate" imply a shared house to me... and these are not always subject to tenancy agreements and the responsibilities/protections of the RTA.
    Michael D Not Higgins wrote: »
    In layman's terms, they have to pay rent for the notice period where the property has not been occupied by the next tenant.

    Ok.


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    #14
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    ELM327 wrote: »
    It's not a red herring, the use of the terms "housemate" imply a shared house to me... and these are not always subject to tenancy agreements and the responsibilities/protections of the RTA.

    Housemate implies they live with someone, 99.9% of the time in a situation where the landlord does not live in the premises, it is a tenancy. I'm not jumping to licensee unless there's compelling evidence.

    Owing to the response from the agent in the OP, it looks like a tenancy.


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    #15
    Michael D Not Higgins
    Registered Users Posts: 7,223 ✭✭✭Michael D Not Higgins


    JackieChang wrote: »
    So it looks like this is the situation right now:

    1. My friend cannot facilitate a viewing and find a new housemate. The landlord has refused.

    2. Friend has to pay rent for the next 84 days even though she wants to move out.

    3. Her housemate has to leave or if she decides to stay, must live in the apartment by herself and pay full rent.



    But that's not fair. She has found the "next tenant" to replace her already, but the landlord has refused. The landlord can't lose out on money, rent isn't due for another three weeks.

    Unfortunately the landlord is not required to accept an assignment.


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    #16
    TheChizler
    Registered Users Posts: 9,455 ✭✭✭TheChizler


    Will the landlord accept the housemate subletting to someone? Probably not given they won't assign the tenancy, but you haven't ruled it out.

    If the landlord won't allow anyone else to move in with the housemate then unless she's happy to pay the full rent herself she'll have to give notice. She should figure this out sooner rather than later to minimise the time she'll be paying the entire thing by herself, which is at least a day at this stage.


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    #17
    dudara
    Registered Users Posts: 33,518 ✭✭✭✭dudara


    Does Mary and her housemate have a joint lease, or do they have separate individual leases?


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    #18
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    dudara wrote: »
    Does Mary and her housemate have a joint lease, or do they have separate individual leases?

    Not sure, I can check after work.

    What difference does it make? Could this end up working in her favour?


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    #19
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    JackieChang wrote: »
    Not sure, I can check after work.

    What difference does it make? Could this end up working in her favour?

    Joint means the remaining housemate is severally liable (liable for full rent), separate lease means housemate is only liable for the amount on her lease.


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    #20
    Fian
    Registered Users Posts: 2,192 ✭✭✭Fian


    dudara wrote: »
    Does Mary and her housemate have a joint lease, or do they have separate individual leases?

    This is the crucial question here.

    If it is a joint lease to both of them then they are entitled to remain until the part IV tenancy period ends, unless given a notice of termination for one of the permitted reasons.

    However if they (or unfortunately for your friend either of them) decide they do not want to remain in situ they are liable for the rent until the notice period expires. So in effect they are obliged to give notice of termination in a similar manner to the notice period required of landlords.

    But there is a pro tenant exception. A tenant can request permission to assign the tenancy to someone else. The landlord is not obliged to agree - basically the landlord remains entitled to decide who lives in their property. If the landlord does not consent the tenant can terminate immediately and escape the notice period. So basically if you are a tenant you can get out of the notice period either way.

    By refusing to agree to someone else moving into the house though, the other joint tenant is left with a dilemma. They have contractually agreed not to sublet or to assign without permission. They are entitled to continue with the tenancy if they wish, BUT they have not got a mechanism to have someone else help them fund the rent.

    A court and the RTB might look more favorably on the situation than the Landlord hopes. They might decide that there are two separate tenancies rather than a joint tenancy - but the facts may not permit them to arrive at that view.

    If this is a joint tenancy the joint tenant deciding not to continue with it may have placed the other joint tenant in a vulnerable position.

    If it is a separate tenacy/lease then your friend is only obliged to meet the rent under that tenancy - it is entirely for the landlord to worry about sourcing another tenant.

    As for the leaving tenant - they do not have to pay rent during the notice period - because the landlord refused permission to assign they are entitled to terminate immediately.


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    #21
    tretorn
    Closed Accounts Posts: 1,800 ✭✭✭tretorn


    I agreed to a situation like this. The tenant wanted to leave and had a pal signed up to move in. The Management Company we pay a fortune to recommended that we say yes, deposit was returned to the first tenant and his pal then absconded leaving us with no tenant.

    We got a new tenant fairly quickly, we probably paid the management company the full fees due for finding us someone.


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    #22
    dudara
    Registered Users Posts: 33,518 ✭✭✭✭dudara


    JackieChang wrote: »
    Not sure, I can check after work.

    What difference does it make? Could this end up working in her favour?
    davo10 wrote: »
    Joint means the remaining housemate is severally liable (liable for full rent), separate lease means housemate is only liable for the amount on her lease.

    As davo10 said, the answer will tell us what form of liability the housemate has. If there was a single leave, with joint & severable liability, then the housemate will have to pay the full whack. If there were separate leases, then the housemate is only liable for her share of the rent and no more.


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    #23
    muckwarrior
    Registered Users Posts: 4,072 ✭✭✭muckwarrior


    Obviously this is speculation, but could the landlord be trying to force both tenants to move out so that they can jack up the rent for a new let? Otherwise, I don't know what their motivation might be to block a new tenant.


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    #24
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    Fian wrote: »

    But there is a pro tenant exception. A tenant can request permission to assign the tenancy to someone else. If the landlord does not consent the tenant can terminate immediately and escape the notice period. So basically if you are a tenant you can get out of the notice period either way.

    Thanks for the detailed post.

    Just on the point above. The landlord refused reassignment, so the tenancy can be terminated immediately therefore avoiding the 84 day notice period.

    Why then does the email from the agency state:

    "Mary can now terminate her tenancy due to the landlord’s refusal of permission for assignment.

    Mary's tenancy will therefore terminate on the 19th April, 2018."

    That's not for another few months. Are you sure it can be terminated right now?

    The other housemate may be left in a bit of a pickle alright. I'll need to see if it's a joint or separate lease.


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    #25
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    muckwarrior wrote: »
    Obviously this is speculation, but could the landlord be trying to force both tenants to move out so that they can jack up the rent for a new let? Otherwise, I don't know what their motivation might be to block a new tenant.

    I'm 100% certain that's the case.

    The apartment is in a prime location, bang in the city centre, and a good bit cheaper than nearly all other flats in the area.

    The landlord could be making much more money out of the place if they started afresh with new tenants. Could probably add another 300 per month onto the rent and people would still snap it up.


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    #26
    Fian
    Registered Users Posts: 2,192 ✭✭✭Fian


    JackieChang wrote: »
    Thanks for the detailed post.



    "Mary can now terminate her tenancy due to the landlord’s refusal of permission for assignment.
    .


    Mary's tenancy will only terminate when she decides to terminate it, it doesn't automatically terminate on any particular date.

    One thing actually - if it is a joint tenancy then Mary is unlikely to be able to assign it unilaterally/without the permission of her joint tenant - so in fact she would remain liable to pay the rent during the notice period. She can't ask teh landlord for consent to do something she is not entitled to do.

    The situation sounds pretty complicated and if feasible your friends should probably seek professional legal advice.


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    #27
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    Just replace the tenant and inform the landlord rather than ask permission & let the landlord make their case. FLAC might be able to advise on this more, see the link below, there is a paragraph written on the subject.

    https://www.flac.ie/download/pdf/landlord_and_tenant2016.pdf


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    #28
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    davindub wrote: »
    Just replace the tenant and inform the landlord rather than ask permission & let the landlord make their case. FLAC might be able to advise on this more, see the link below, there is a paragraph written on the subject.

    https://www.flac.ie/download/pdf/lan...tenant2016.pdf

    Thanks, but your link doesn't work.


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    #29
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    JackieChang wrote: »
    Thanks, but your link doesn't work.

    fixed now.


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    #30
    JackieChang
    Registered Users Posts: 1,494 ✭✭✭JackieChang


    davindub wrote: »
    fixed now.

    This line from the PDF:
    (iv) the tenant offers to replace him/herself and the landlord refuses this offer.

    For iv) above, you will have to give in writing the appropriate notice terms as listed in the previous table specifying the reason for termination.

    Seems to contradict Fian's comment above:
    If the landlord does not consent the tenant can terminate immediately and escape the notice period. So basically if you are a tenant you can get out of the notice period either way.

    Is Fian's line only in the case of a separate tenancy agreement? The PDF doesn't mention anything about this.

    Sorry for giving everybody a headache with this.


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    #31
    Fian
    Registered Users Posts: 2,192 ✭✭✭Fian


    JackieChang wrote: »
    This line from the PDF:



    Seems to contradict Fian's comment above:



    Is Fian's line only in the case of a separate tenancy agreement? The PDF doesn't mention anything about this.

    Sorry for giving everybody a headache with this.

    No the section 66 periods apply according to that - but not the full duration of the lease or any notice requirements in the lease.

    I had understood it to be different (termination with no notice) but based on memory which may be mistaken, I guess the legislation will set it out if you check. I am sure I have seen previous threads on the issue in this forum if you want to check back and find them.

    In any case she needs to serve notice of termination before any of this starts.


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