Tenant or Licensee?

Mark2229

Hey guys,

Just wondering if you could help with an issue I'm having and am slightly stressing about

Myself and my girlfriend have been renting an apartment for just under a year. Our arrangement with the landlord means that he is in the apartment for one day a week but for the other 6 days we are there on our own. When he is around he stays in his room and does not come into the common areas. All utilities are also under our name. As far as I am aware we are referenced as tenants on the contract but in the eyes of the law are we tenants or licensees?

Our landlord has also mentioned upping our rent when he no longer needs to be there once a week. Does he need to give us a certain amount of notice in order to do this?

One last thing: from reading up on tenant rights I believe we are under part 4 tenancy rights. We have signed a contract which expires in October. Hypothetically once this contract has expired can we be kicked out without notice? I'm only asking as our landlord is quite vague on the future of our tenancy and I just want to know where we stand.

We are also not registered with the RTB and am not sure if this affects anything.

Thanks,

Mark

.......

It sounds like you are tenants as living somewhere one day a week does not constitute it being your PPR (principle private residence), however he may be claiming it IS his PPR. Does his post go there?

That the utility bills are in your name would indicate also that you are tenants.

He needs to abide by certain rules for a rent increase:
http://www.citizensinformation.ie/en/housing/renting_a_home/rent_increases.html

If you are tenants then 6 months into the tenancy you gained part 4 rights and can only be given notice to vacate under certain conditions (outside of anti social behaviour, not paying rent etc...). He can ask you to leave if he wants to sell, move in or move a family member in. (There may be other valid reasons) But he still has to give the correct notice etc.. And if he offers it for rent again because it doesnt sell etc he has to give you first refusal.

Him being registered with PRTB or not does not affect your tenancy rights.

Mark2229

....... wrote: »

It sounds like you are tenants as living somewhere one day a week does not constitute it being your PPR (principle private residence), however he may be claiming it IS his PPR. Does his post go there?

That the utility bills are in your name would indicate also that you are tenants.

He needs to abide by certain rules for a rent increase:
http://www.citizensinformation.ie/en/housing/renting_a_home/rent_increases.html

If you are tenants then 6 months into the tenancy you gained part 4 rights and can only be given notice to vacate under certain conditions (outside of anti social behaviour, not paying rent etc...). He can ask you to leave if he wants to sell, move in or move a family member in. (There may be other valid reasons) But he still has to give the correct notice etc.. And if he offers it for rent again because it doesnt sell etc he has to give you first refusal.

Him being registered with PRTB or not does not affect your tenancy rights.

Thanks for the detailed reply. His post does not come here and instead gets mailed to his primary residence in another county. Some of his brothers mail gets sent here but he has not been in the apartment since we have moved in and from speaking to the landlord it sounds like he has not been there in years.

So if he does decide to increase rent he must adhere to a 4% price increase as we are in a RPZ regardless of if he has been there one day a week?

davo10

It doesn't seem like you have exclusive use of the apartment, but equally, as another poster has pointed out, the LL may find it difficult to prove a licensee arrangement.

You may be wise to wait and see if the rent hike is reasonable and in line with what similar properties are renting for in the area even if it is above 4%. If you dispute this, then the argument over licensee/tenant status will have to be settled by the RTB, but as sure as god made small apples the LL will either decide to sell or his brother will suddenly want to move back in. And you will be out.

.......

Mark2229 wrote: »

So if he does decide to increase rent he must adhere to a 4% price increase as we are in a RPZ regardless of if he has been there one day a week?

If you are in an RPZ then he cannot increase the rent until you have been there for 1 year.

And when he does it can only be 4%.

He also needs to give you 3 months written notice and examples of rents in the area etc....

Im not sure how much of the above landlords are actually adhering to at the moment.

But as another poster has pointed out, if you dont play ball he will no doubt claim himself or his brother is moving back in.

Mrs OBumble

You are licensees.

The ll needs it to be his PPR in order to claim rent a room for tax. But he does not need to do that for you to be living with the Ll for tenancy law purposes. Don't try to mix the two.

.......

Mrs OBumble wrote: »

You are licensees.

The ll needs it to be his PPR in order to claim rent a room for tax. But he does not need to do that for you to be living with the Ll for tenancy law purposes. Don't try to mix the two.

They dont live with the LL.

He stays over once a week.

Wabbit Ears

Its pretty clear, you do not live in Self-contained flat or apartment but rent a room in the landlords home (the fact that its not his PPR is irrelevent here, *neither is the fact that its one day a week as he has his own room for his exclusive use)

http://www.citizensinformation.ie/en/housing/renting_a_home/sharing_accommodation_with_your_landlord.html


edited*

.......

Wabbit Ears wrote: »

Its pretty clear, you do not live in Self-contained flat or apartment but rent a room in the landlords home (the fact that its not his PPR is irrelevent here, *neither is the fact that its one day a week as he has his own room for his exclusive use)

http://www.citizensinformation.ie/en/housing/renting_a_home/sharing_accommodation_with_your_landlord.html


edited*

How can it be the LLs home? He doesnt live there.

Mark2229

Wabbit Ears wrote: »

Its pretty clear, you do not live in Self-contained flat or apartment but rent a room in the landlords home (the fact that its not his PPR is irrelevent here, *neither is the fact that its one day a week as he has his own room for his exclusive use)

http://www.citizensinformation.ie/en/housing/renting_a_home/sharing_accommodation_with_your_landlord.html


edited*

This is where I have confusion with and why I posted the initial question.

We are referred to as tenants on the contract we have signed and have access to the entire property, except for one bedroom which he sleeps in when he is over which is usually once a week but can not be used for weeks on end. This room is locked when he is not around.

The LL is usually over for a maximum time of 12 hours a week and he never ventures into the common areas from his room except for when using the bathroom. He has also mentioned that when he decides he no longer needs to use the one room, rent will go up as we will be renting a two bedroom apartment, which is substantially more than what we are currently paying.

I essentially want to know if I have any grounds legally in regards to rent being increased and how much notice is needed as I know tenants have different rights to licensees. I think it would be a pretty miserable situation if he decided that he no longer needs the room, ups our rent with extremely short notice and there is nothing we can do.

.......

Ring Threshold or PRTB and ask them.

And report back here what they tell you.

davo10

Mark2229 wrote: »

This is where I have confusion with and why I posted the initial question.

We are referred to as tenants on the contract we have signed and have access to the entire property, except for one bedroom which he sleeps in when he is over which is usually once a week but can not be used for weeks on end. This room is locked when he is not around.

The LL is usually over for a maximum time of 12 hours a week and he never ventures into the common areas from his room except for when using the bathroom. He has also mentioned that when he decides he no longer needs to use the one room, rent will go up as we will be renting a two bedroom apartment, which is substantially more than what we are currently paying.

I essentially want to know if I have any grounds legally in regards to rent being increased and how much notice is needed as I know tenants have different rights to licensees. I think it would be a pretty miserable situation if he decided that he no longer needs the room, ups our rent with extremely short notice and there is nothing we can do.

If you do not pay the increase for the extra room, I can't see anything to prevent him renting the room to someone else and giving them a seperate tenancy lease, would you be ok with this?

The_Conductor

Mrs OBumble wrote: »

You are licensees.

The ll needs it to be his PPR in order to claim rent a room for tax. But he does not need to do that for you to be living with the Ll for tenancy law purposes. Don't try to mix the two.

+1
Mrs O'Bumble is correct.
Providing the owner is not trying to claim the rent-a-room relief- he can legitimately operate as he is doing- and claim that you are a licensee. It doesn't have to be his PPR- the fact that you don't have exclusive use of the property- and he does regularly use the property himself- and you are specifically taking one of the two bedrooms- is what I imagine is key here.

If it were a stranger in the other bedroom- it would be a lot harder to suggest you're a licensee- but the fact that its the owner- is key to this. It doesn't even matter how many hours a week he is there- he is there on a regular basis, the end.

Threshold will tell you something different- they always do- don't take their advice as gospel.

.......

....... wrote: »

Wabbit Ears wrote: »

Its pretty clear, you do not live in Self-contained flat or apartment but rent a room in the landlords home (the fact that its not his PPR is irrelevent here, *neither is the fact that its one day a week as he has his own room for his exclusive use)

http://www.citizensinformation.ie/en/housing/renting_a_home/sharing_accommodation_with_your_landlord.html


edited*

How can it be the LLs home? He doesnt live there.

It doesn't have to be is main home, the fact he has a room there which he uses regularly and maintain access to the property means that the op is a licensee.

Just look at it from the other side and it's even clearer. One of the central rights a tenant has is to peaceful enjoyment of the property and a LL must give notice when calling over and it must all be oked by the tenant. The owner of the op's property can come and go as he pleases thus the op has no right to exclusive use and therefore cannot be a tenant.

GGTrek

The OP does not have exclusive use of the whole apartment. I know quite a bit of case law on the argument and it is very likely that the RTB on first instance will find in his/her favour as tenant. Big problem however will be the room that is of the exclusive use of the landlord who can jus move back in and after a month or a bit longer the OP will become a licensee (any kind of defence will fall in such case) and especially if putting the landlord through the RTB he/she will be quickly evicted (tenants in this forum just do not understand that opening an RTB dispute amounts to a declaration of war for a landlord!). The OP should use common sense instead and consider what level of rent he/she is paying and if it is below market discuss the matter directly with his/her landlord instead of trying to find a smart way out using the dysfunctional RTA system.

davindub

Op

This case will give you an idea of how the RTB looks at exclusive occupation.

https://onestopshop.rtb.ie/search-results/archive-listing/eyJyZXN1bHRfcGFnZSI6InNlYXJjaC1yZXN1bHRzXC9hcmNoaXZlLWxpc3RpbmciLCJrZXl3b3JkcyI6IlpoYW5nIiwiY29sbGVjdGlvbiI6ImFyY2hpdmVfYWRqdWRpY2F0aW9uX29yZGVyc3xhcmNoaXZlX3RyaWJ1bmFsX29yZGVycyJ9

Look at the last case on the list (holohan)

Exclusive use wont be an issue, its whether the LL is deemed to reside there determines whether your occupation comes under the RTB act. I can see both arguments arising from your situation, but little in the way of relevant caselaw to establish an answer as to what test the rtb would use.

Threshold & Flac may be able to tell you what line the rtb takes in mediation, it would be more likely it is that stage where the claim is made and they state it is or isnt excluded.

The_Conductor

I'm not so sure about Holohan- with Holohan- the tenant occasionally shared the property with an agreed third party- who had a lease with the owner (Holohan)- and not with Holohan himself.........

If it were not the owner who stayed there on a weekly or more frequent basis- Holohan would certainly apply- however, it is the owner who overnights there at least one night a week- and not a third party.........

The Holohan case fell- on the basis that the applicant was accepted to have a joint tenancy with exclusive occupation with another (unnamed) tenant- which included a 3 year period where there was no other tenant.

It really is a stretch to try and suggest it should apply in this case (and indeed- the RTB themselves tied themselves up in knots over Holohan- this case is a lot more cut and dry than Holohan was).

davindub

The_Conductor wrote: »

I'm not so sure about Holohan- with Holohan- the tenant occasionally shared the property with an agreed third party- who had a lease with the owner (Holohan)- and not with Holohan himself.........

If it were not the owner who stayed there on a weekly or more frequent basis- Holohan would certainly apply- however, it is the owner who overnights there at least one night a week- and not a third party.........

The Holohan case fell- on the basis that the applicant was accepted to have a joint tenancy with exclusive occupation with another (unnamed) tenant- which included a 3 year period where there was no other tenant.

It really is a stretch to try and suggest it should apply in this case (and indeed- the RTB themselves tied themselves up in knots over Holohan- this case is a lot more cut and dry than Holohan was).

Point being from holohan/ HC exclusive use of the whole apartment is not required for a tenancy, even if the LL is the other tenant or has retained access. It is the exemption for properties where the LL resides which prevents a tenancy from arising in licence situations.

The above has been discussed at HC level.

I dont see anything other than personal opinion of what resides means to the Rtb, certainly arguments can be presented that the LL resides there/ doesnt reside, but the OP is not looking for debate on the matter hence the suggestion to try and find out.

The_Conductor

OP- honestly- if you were to take a case to the RTB- to determine your status in the property- it could go either way.
My own thoughts are that it would fail- others disagree- however, one way or the other- it is subjective, and is not specifically addressed in the Act.

4ensic15

The_Conductor wrote: »

OP- honestly- if you were to take a case to the RTB- to determine your status in the property- it could go either way.
My own thoughts are that it would fail- others disagree- however, one way or the other- it is subjective, and is not specifically addressed in the Act.

It is addressed in two ways. The RTA does not apply to a dwelling where the landlord also resides. It is a question of fact as to whether the landlord also resides. The Zhang case was against a landlord staying a few times in a vacant room. The other point is whether the o/p rents a dwelling. The |RTB have given conflicting decisions as to whether a part of a dwelling is a dwelling. I would think that the landlord cannot claim to reside on the basis of a once weekly visit. I would also think that it will be found that the o/p is sharing a dwelling. In that case it would come down to a question of whether the o/p is a licensee. It is not as clear cut as some of the student residence cases and I would think the fact that the landlord can and does come in and out goes against the o/p but the fact all utilities are in his name goes in favour of a tenancy and also none of the restrictions on visitors etc apply to the o/p. Purely on the basis the RTB is biased and pro-tenant I would expect the o/p to shade it in a properly argued case.

4ensic15

4ensic15 wrote: »

The_Conductor wrote: »

OP- honestly- if you were to take a case to the RTB- to determine your status in the property- it could go either way.
My own thoughts are that it would fail- others disagree- however, one way or the other- it is subjective, and is not specifically addressed in the Act.

It is addressed in two ways. The RTA does not apply to a dwelling where the landlord also resides. It is a question of fact as to whether the landlord also resides. The Zhang case was against a landlord staying a few times in a vacant room. The other point is whether the o/p rents a dwelling. The |RTB have given conflicting decisions as to whether a part of a dwelling is a dwelling. I would think that the landlord cannot claim to reside on the basis of a once weekly visit. I would also think that it will be found that the o/p is sharing a dwelling. In that case it would come down to a question of whether the o/p is a licensee. It is not as clear cut as some of the student residence cases and I would think the fact that the landlord can and does come in and out goes against the o/p but the fact all utilities are in his name goes in favour of a tenancy and also none of the restrictions on visitors etc apply to the o/p. Purely on the basis the RTB is biased and pro-tenant I would expect the o/p to shade it in a properly argued case.

There is no case at all imo, the op is a licensee without doubt. The owner lives there very regularly, has full access to the house, can come and go as he pleases, could move in someone else without the ops consent, could decide tomorrow to live there full time and again there is nothing the op could do.

Its simply and totally incompatable with being called a tenancy. As pro tenant as the RTB are I’d be surprised if they even allowed the case to be heard as it’s a very straight forward licensee situation imo.

4ensic15

Braylee Howling Packaging wrote: »

There is no case at all imo, the op is a licensee without doubt. The owner lives there very regularly, has full access to the house, can come and go as he pleases, could move in someone else without the ops consent, could decide tomorrow to live there full time and again there is nothing the op could do.

Its simply and totally incompatable with being called a tenancy. As pro tenant as the RTB are I’d be surprised if they even allowed the case to be heard as it’s a very straight forward licensee situation imo.

If a dispute is referred the RTB have to hear it. They have no choice. They have to at least decide if they have jurisdiction. This case is on the margin.

The_Conductor

4ensic15 wrote: »

If a dispute is referred the RTB have to hear it. They have no choice. They have to at least decide if they have jurisdiction. This case is on the margin.

Its far further on the margins than the Holohan case was- and in that case- the landlord did not regularly overnight (as in weekly in this instance) in the property.

I'm not even sure why you're suggesting the OP has a chance of things going his way- its a hell of a lot more black and white than the sole case that has been pulled up in this thread to 'support' the contention you're advocating.

In my opinion- it would be a complete and utter waste of taxpayers money- to spend time and effort chasing this unicorn. If it was a person other than the landlord who used the property consistently alongside the OP on a weekly basis- there might be some basis on which to make an argument- but that simply doesn't exist here..........

If the OP chooses to go down the road that they're going down- it would be interesting to see how it goes for them- however, its a long shot.

Now- no more case studies etc please- if people want to discuss case law- I'm sorry- you're going to have to take it to Legal Discussion (and abide by the rules governing posting in their forum)- it is not appropriate to try and argue case law in this forum.

OP- I am closing this thread for now. If/when you'd like to post an update- please PM me personally and I will temporarily reopen the thread for you.

Thankyou folks.