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Fixed Term Tenancies

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  • 15-05-2018 4:12pm
    #1
    savj2
    Registered Users Posts: 108 ✭✭


    Hi all

    I'm about to close on buying an apartment. I have a fixed term tenancy for 1 year at my current apartment I'm renting.

    I'll be honest, I didn't really read my lease agreement when I moved in last September but after handing in my written termination notice this afternoon, the landlord told me I'm in breach of my fixed term tenancy.

    Does this mean my landlord has the right to continue to seek rent payments up until September 2018?

    If so I could be in a bit of bother with mortgage repayments to be paid as well.

    Any experience of similar situations and advise welcome.

    Thanks


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    #2
    Samuel T. Cogley
    Registered Users Posts: 10,684 ✭✭✭✭Samuel T. Cogley


    No he has to mitigate his loss and get someone else in. You'll probably lose your deposit though.

    You may be able to assign and if the LL refuses then you may have an out but I'm not sure how the FTL and the RTA would interact there so I'll leave that one for people with more experience.


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    #3
    savj2
    Registered Users Posts: 108 ✭✭savj2


    Thanks


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    #4
    Claw Hammer
    Registered Users Posts: 6,238 ✭✭✭Claw Hammer


    If you ask the landlord to assign your tenancy and he refuses you can then terminate the tenancy. You have to find someone who is willing to take the lease and propose them to the landlord. If the landlord agrees all well and good and if not you can end the tenancy.


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    #5
    dennyk
    Registered Users Posts: 1,701 ✭✭✭dennyk


    Under a fixed term lease, you can offer to assign your tenancy to someone else (in which case they take over the tenancy as the tenant and your tenancy ends and you have no further obligations to the landlord) or to sublet (in which case the new tenant becomes your subtenant and pays their rent to you; you retain the original tenancy and are still obligated to pay your landlord the rent and keep up with your other obligations as a tenant). In either case, it would be your responsibility to do the legwork and find the new assignee or subletter yourself, and you'd need to get permission from the landlord to assign or sublet. If the landlord refuses to allow you to assign the tenancy or sublet, then you have the right to end your tenancy without penalty even if you are under a fixed term lease. You would still need to provide the statutory notice period to terminate, however (which would be five weeks in your case).

    In your case, you would be in breach if you simply end your tenancy now, and the landlord could pursue you for costs and keep charging you rent until they find a new tenant. You should apologize for the confusion and rescind your notice of termination, then serve your landlord with notice of your intent to assign or sublet instead. If they refuse permission, you can then serve them with a termination notice like this one (of course, replacing the notice period with the correct one for your length of tenancy and such). And of course if the landlord agrees to an assignment or sublet, then it's time to go hunting for a new tenant.


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    #6
    the_syco
    Registered Users Posts: 37,300 ✭✭✭✭the_syco


    savj2 wrote: »
    I'm about to close on buying an apartment.
    TBH, until you get the keys, you're not that close.


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    #7
    savj2
    Registered Users Posts: 108 ✭✭savj2


    Thanks for that advise folks.

    So here is where I am.

    I emailed landlord apologising for any confusion caused and offered to rescind incorrect part 4 tenancy temination notice.

    Today I handed in person a written request for permission to assign tenancy.

    Following that I followed up with an email to landlord, asking if they could confirm if I could sublet or not. The landlord replied saying that assignment is not allowed and they will terminate tenancy on date I put on original invalid notice but that I won't be getting deposit back due to associated costs being based on 12 months contract.

    I plan to follow process and hand in the notice of termination in writing for Sub-let/Assignment of fixed term tenancy tomorrow and set 35 days from Wednesday.

    Is there anything more I can do? It looks like I won't be getting deposit back but in fairness I only have myself to blame for not reading the lease properly in the first place.


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    #8
    Askthe EA
    Registered Users Posts: 724 ✭✭✭Askthe EA


    savj2 wrote: »
    Thanks for that advise folks.

    So here is where I am.

    I emailed landlord apologising for any confusion caused and offered to rescind incorrect part 4 tenancy temination notice.

    Today I handed in person a written request for permission to assign tenancy.

    Following that I followed up with an email to landlord, asking if they could confirm if I could sublet or not. The landlord replied saying that assignment is not allowed and they will terminate tenancy on date I put on original invalid notice but that I won't be getting deposit back due to associated costs being based on 12 months contract.

    I plan to follow process and hand in the notice of termination in writing for Sub-let/Assignment of fixed term tenancy tomorrow and set 35 days from Wednesday.

    Is there anything more I can do? It looks like I won't be getting deposit back but in fairness I only have myself to blame for not reading the lease properly in the first place.

    Yeah, no, they cant have it both ways. If they dont allow you to assign your tenancy then they cannot withhold your deposit. They can only withhold for any costs incurred. By offering to find your own replacement, and by them refusing this, then they have caused their own loss.

    They may be able to withhold the partial cost of the new RTB registration fee but thats about it.

    Up to you if you want to fight it.....


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    #9
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    Op, are you saying you actually terminated the tenancy, and then you decided your notice of termination was invalid and now want to rescind it?

    I'm not sure you are entitled to rescind your own notice of termination because you yourself deem it invalid, what are you basing this on?

    AsktheEA, once notice of early termination of a fixed term tenancy by the tenant is accepted, is the LL required to entertain any other requests for assignment etc after that? The op gave notice, it was accepted.


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    #10
    Browney7
    Registered Users Posts: 3,100 ✭✭✭Browney7


    savj2 wrote: »
    Thanks for that advise folks.

    So here is where I am.

    I emailed landlord apologising for any confusion caused and offered to rescind incorrect part 4 tenancy temination notice.

    Today I handed in person a written request for permission to assign tenancy.

    Following that I followed up with an email to landlord, asking if they could confirm if I could sublet or not. The landlord replied saying that assignment is not allowed and they will terminate tenancy on date I put on original invalid notice but that I won't be getting deposit back due to associated costs being based on 12 months contract.

    I plan to follow process and hand in the notice of termination in writing for Sub-let/Assignment of fixed term tenancy tomorrow and set 35 days from Wednesday.

    Is there anything more I can do? It looks like I won't be getting deposit back but in fairness I only have myself to blame for not reading the lease properly in the first place.

    Did you propose a person to assign to?

    Did you get a response to seeking to rescind your first email?


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    #11
    GGTrek
    Registered Users Posts: 834 ✭✭✭GGTrek


    davo10 wrote: »
    Op, are you saying you actually terminated the tenancy, and then you decided your notice of termination was invalid and now want to rescind it?

    I'm not sure you are entitled to rescind your own notice of termination because you yourself deem it invalid, what are you basing this on?

    AsktheEA, once notice of early termination of a fixed term tenancy by the tenant is accepted, is the LL required to entertain any other requests for assignment etc after that? The op gave notice, it was accepted.
    The withdrawal of termination notices for residential leases is not clear cut and post 2004 case law is missing (before it was all clear cut, like it is for commercial leases where no withdrawal is allowed). There was a discussion on the legal forum that I started on such issues a while ago:
    https://www.boards.ie/b/thread/2057783650
    The only way to get the final answer would be for the OP or his landlord to take the case to the RTB (possibly tribunal). I would be very careful with the suggestions of the other posters around here to request deposit back (and the only way to force the landlord to return the deposit would be to open a case at the RTB) since the case for the OP is not clear cut at all, having served a notice of termination and then "withdrawn it". The RTA in Section 28(4) only provides the withdrawal option to the lanndlord in the first 6 months of a tenancy, it is silent for all the other cases, so there is a real risk for the OP that case law on pre-2004 leases (which are the commercial leases of today) is applied and the termination notice cannot be withdrawn or in the best case damages for withdrawal will be granted.


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    #12
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    GGTrek wrote: »
    there is a real risk for the OP that case law on pre-2004 leases (which are the commercial leases of today) is applied and the termination notice cannot be withdrawn or in the best case damages for withdrawal will be granted.

    I assume damages would be limited to actual losses for the landlord. As such it's hard to see what the OP would have to lose by disputing retention of deposit.

    If there's an existing dispute that's counter to that opinion, I'd be interested in a link.


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    #13
    savj2
    Registered Users Posts: 108 ✭✭savj2


    davo10 wrote: »
    Op, are you saying you actually terminated the tenancy, and then you decided your notice of termination was invalid and now want to rescind it?

    I'm not sure you are entitled to rescind your own notice of termination because you yourself deem it invalid, what are you basing this on?

    AsktheEA, once notice of early termination of a fixed term tenancy by the tenant is accepted, is the LL required to entertain any other requests for assignment etc after that? The op gave notice, it was accepted.

    Hi

    Yes. I served a Part 4 Tenancy notice of termination even though the lease is a fixed term tenancy. Then I tried to rescind it but no response to that.

    After I sent in the " Permission to assign" letter today with the follow up email, the letting agent said initial notice was accepted but deposit will be kept to cover costs of 12 months.

    I just realised today that I addressed the Part 4 notice to the agent of the landlord ( as I do all dealings with her with regard the apartment) and not the landlord himself. Is that going to cause more compliations.

    Lesson learned big time to read contracts in full in future.


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    #14
    GGTrek
    Registered Users Posts: 834 ✭✭✭GGTrek


    Graham wrote: »
    GGTrek wrote: »
    there is a real risk for the OP that case law on pre-2004 leases (which are the commercial leases of today) is applied and the termination notice cannot be withdrawn or in the best case damages for withdrawal will be granted.

    I assume damages would be limited to actual losses for the landlord as they've already accepted the withdrawal of notice.  As such it's hard to see what the OP would have to lose by disputing retention of deposit.

    If there's an existing dispute that's counter to that opinion, I'd be interested in a link.
    Correct, damages will have to be as a minimum live expenses of the landlord (advertising, registration fees, agent letting fees) and rent until a new tenant is found (just have to show best effort). It is very likely these damages put together could be higher than a month of deposit. That is why the OP is running a real risk if he/she challenges for return of deposit.


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    #15
    Askthe EA
    Registered Users Posts: 724 ✭✭✭Askthe EA


    davo10 wrote: »

    AsktheEA, once notice of early termination of a fixed term tenancy by the tenant is accepted, is the LL required to entertain any other requests for assignment etc after that? The op gave notice, it was accepted.

    I dont know. The RTB is a fickle place at times.

    In my opinion I would assume that the RTB would break the whole situation down into its parts.

    The first part is as the request for early termination was made and accepted by both parties (this isnt in dispute, just the form it took) would they find that the lease was therefore terminated by agreement? Who knows for sure but I would be confident that they would. The substance of the termination notice would probably be deemed acceptable as it was accepted by the landlord.

    If the lease was therefore ended by agreement, I cant see how the landlord can then go on and look to recover costs, they agreed to terminate the lease early.

    If they found that the tenant was liable for costs incurred, and were told that the tenant had offered to replace themselves, again, we dont know but I would assume that they would say that the tenant was mitigating the landlords loss and would only find for a percentage of the €90 RTB fee and any lost days of rent after old tenant vacates and new tenant comes in. If the landlord refuses to allow the tenant mitigate their (the LL's) loss, I cant see how they would then be allowed retain the deposit.

    Any cleaning costs etc are a separate matter to be dealt with via the deposit held.

    But, as I said, the RTB is fickle and I am not a lawyer (Mind you, not sure a lawyer will be able to answer with 100% surety)


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