Advertisement
If you have a new account but are having problems posting or verifying your account, please email us on hello@boards.ie for help. Thanks :)
Hello all! Please ensure that you are posting a new thread or question in the appropriate forum. The Feedback forum is overwhelmed with questions that are having to be moved elsewhere. If you need help to verify your account contact hello@boards.ie

Fixed Term Lease

Options
2»

Comments

  • Options
    #32
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    wonski wrote: »
    The opposite really. I can pick part 4 or fixed term whichever suits me.

    I'm fairly certain that's the whole point for residential lease break clauses mirroring the allowable reasons under Part 4.

    I'm still struggling to see how such clauses would be unenforceable. They don't take away the tenants part 4 rights.


  • Options
    #33
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    Graham wrote: »
    I'm fairly certain that's the whole point for residential lease break clauses mirroring the allowable reasons under Part 4.

    I'm still struggling to see how such clauses would be unenforceable. They don't take away the tenants part 4 rights.

    A fixed term is for a fixed term. The tenant's security of tenure is the greater of part 4 or his lease. Since the same effect could be achieved by having a month to month lease, why is there an end date in the lease?


  • Options
    #34
    wonski
    Registered Users Posts: 13,685 ✭✭✭✭wonski


    Graham wrote: »
    I'm fairly certain that's the whole point for residential lease break clauses mirroring the allowable reasons under Part 4.

    I'm still struggling to see how such clauses would be unenforceable. They don't take away the tenants part 4 rights.

    If we sign a one year lease today, I can stay for a one year minimum providing I pay rent and everything is fine.

    If at the end of the term you ask me to sign another lease again this will give me a right to stay.

    You cannot break fixed term lease because you moving in or putting house up for sale, unless the tenant agree.

    It is all in the link you provided earlier.


  • Options
    #35
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    wonski wrote: »
    If we sign a one year lease today, I can stay for a one year minimum providing I pay rent and everything is fine.

    Unless there's a break clause that doesn't attempt to remove any of your part 4 rights.
    A break clause may be provided for in a fixed term tenancy agreement.

    There would be little point in the RTB saying the above if your assertion they can't be enforced were correct.

    That also appears to be the interpretation from lawonline:
    Generally, the reasons under section 34 are not valid grounds for terminating a fixed term tenancy. They can only be used if they have been incorporated as conditions in the fixed term letting agreement.


  • Options
    #36
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    Graham wrote: »
    How does that align with a fixed term lease which provides specific break clauses?

    Break clauses in a fixed term lease, regardless of whether they mirror the RTA (obviously the Part IV provisions), or not- are wholly unenforceable- and have been found to be unenforceable in various RTB tribunals.

    If a landlord intends to make use of the break clauses in the RTA- they had better make sure they don't give the tenant a fixed term lease- regardless of what they put in the fixed term lease. The landlord is unintentionally rescinding his/her rights under the RTA- by simply giving the tenant a fixed term lease- wholly regardless of any break clauses or articles they may include in the lease.

    Its a case of damned if you do, and damned if you don't- you can't win.


  • Advertisement
  • Options
    #37
    wonski
    Registered Users Posts: 13,685 ✭✭✭✭wonski


    Graham wrote: »
    Unless there's a break clause that doesn't attempt to remove any of your part 4 rights.



    There would be little point in the RTB saying the above if your assertion they can't be enforced were correct.

    A fixed term lease is a legally binding contract between you and the tenant.

    You cannot evict the tenant before the end of lease even if you become homeless, unless the tenant stopped paying rent etc.

    The conditions of breaking the fixed term lease are different from ending part 4 tenancy.

    If you serve a notice the tenant will use his rights obtained under fixed term contract to remain in the dwelling until the end of this term.

    After 6 months the tenant will obtain further part 4 rights which will allow him to stay in the property for up to 6 years unless you serve a valid notice of termination of part 4 tenancy.

    Apologies, but I can't make it any clearer.

    I'm short if you sign 12 months lease the tenant have a right to stay for 12 months.


  • Options
    #38
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    Graham wrote: »
    Unless there's a break clause that doesn't attempt to remove any of your part 4 rights.

    There would be little point in the RTB saying the above if your assertion they can't be enforced were correct.

    That also appears to be the interpretation from lawonline:

    If a landlord were to try and invoke the terms of the lease- according to the RTB- it would become a civil matter between the parties- which may be enforceable by the RTB (however, in practice, they have chosen to ignore any terms, articles or covenants- in favour of a global understanding that it is a fixed term lease).

    If a landlord intends to invoke his/her rights to possession under the Act- he/she should ensure the tenancy migrates over to a pure Part IV tenancy- and that they do not give the tenant a formal fixed term lease (wholly regardless of any provisions they may include in it).

    A lease can only enhance the rights of a tenant- it can never detract from them- however, in the case of a fixed term lease- not only can it not detract from them- by virtue of the lease existing, period, it imparts additional significant rights to the tenant that he/she would not otherwise have.

    Its really not funny how socialist its gone.


  • Options
    #39
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    The_Conductor wrote: »
    Graham wrote: »
    How does that align with a fixed term lease which provides specific break clauses?

    Break clauses in a fixed term lease, regardless of whether they mirror the RTA (obviously the Part IV provisions), or not- are wholly unenforceable- and have been found to be unenforceable in various RTB tribunals.

    If a landlord intends to make use of the break clauses in the RTA- they had better make sure they don't give the tenant a fixed term lease- regardless of what they put in the fixed term lease. The landlord is unintentionally rescinding his/her rights under the RTA- by simply giving the tenant a fixed term lease- wholly regardless of any break clauses or articles they may include in the lease.

    Its a case of damned if you do, and damned if you don't- you can't win.

    Have you an example of where such break clauses have been unenforceable?

    Its simple enough you have a lease with an end date 12 months later unless the landlord wants to break for the reasons given. Perfectly valid assuming there are no conflicting terms.

    As the break clauses are those permitted by the act, there is no unlawful terms in the lease.


  • Options
    #40
    BrianHartigan
    Registered Users Posts: 5 ✭BrianHartigan


    The_Conductor wrote: »
    Break clauses in a fixed term lease, regardless of whether they mirror the RTA (obviously the Part IV provisions), or not- are wholly unenforceable- and have been found to be unenforceable in various RTB tribunals.

    If a landlord intends to make use of the break clauses in the RTA- they had better make sure they don't give the tenant a fixed term lease- regardless of what they put in the fixed term lease. The landlord is unintentionally rescinding his/her rights under the RTA- by simply giving the tenant a fixed term lease- wholly regardless of any break clauses or articles they may include in the lease.

    Its a case of damned if you do, and damned if you don't- you can't win.

    Are the break clauses unenforceable? They're in the lease and like other posters have said they don't contradict the Part 4 rights.
    wonski wrote: »
    I'm short if you sign 12 months lease the tenant have a right to stay for 12 months.

    This makes sense to me. Otherwise how can you ever feel at home in the first six months if you only have 28 days guaranteed in the apartment. But the lease does have a break clause so it does seem that I can be served notice at any time.


  • Options
    #41
    daithi7
    Registered Users Posts: 1,301 ✭✭✭daithi7


    So are fixed term contracts effectively things of the past now?

    I.e. Are all private lettings now effectively part 4 lettings, governed by the Rtb provisions??


  • Advertisement
  • Options
    #42
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    daithi7 wrote: »
    So are fixed term contracts effectively things of the past now?

    I.e. Are all private lettings now effectively part 4 lettings, governed by the Rtb provisions??

    All private lettings are effectively Part IV lettings- once they reach the 6 month period at which Part IV rights accrue- regardless of whether (or not) there is a lease or any other provisions in place. A lease or any other provisions- can only give a tenant rights additional to those they enjoy in the Residential Tenancies Act- they cannot detract from those rights in any manner. Once a tenant reaches 6 months- a part IV tenancy automatically vests. Up to the 6 month period- you can have whatever the hell you'd like in a lease- however, once you hit 6 months- a tenant as a very minimum has Part IV rights- and anything else in a lease that is beneficial to a tenant- accrues- anything that isn't- doesn't.

    A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.


  • Options
    #43
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    The_Conductor wrote: »

    A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

    A landlord certainly can give themselves rights in a lease they do not have in the act. A landlord can and most do refuse to allow animals as pets to be kept in the property. There is nothing in the act about pets. Other clauses can be added in. The landlord can't reduce a tenants security of tenure by way of contractual provisions but in other ways, landlords can insert clauses giving them various rights.


  • Options
    #44
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    The_Conductor wrote: »

    A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

    A landlord certainly can give themselves rights in a lease they do not have in the act. A landlord can and most do refuse to allow animals as pets to be kept in the property. There is nothing in the act about pets. Other clauses can be added in. The landlord can't reduce a tenants security of tenure by way of contractual provisions but in other ways, landlords can insert clauses giving them various rights.


  • Options
    #45
    daithi7
    Registered Users Posts: 1,301 ✭✭✭daithi7


    The_Conductor wrote: »
    All private lettings are effectively Part IV lettings- once they reach the 6 month period at which Part IV rights accrue- regardless of whether (or not) there is a lease or any other provisions in place. A lease or any other provisions- can only give a tenant rights additional to those they enjoy in the Residential Tenancies Act- they cannot detract from those rights in any manner. Once a tenant reaches 6 months- a part IV tenancy automatically vests. Up to the 6 month period- you can have whatever the hell you'd like in a lease- however, once you hit 6 months- a tenant as a very minimum has Part IV rights- and anything else in a lease that is beneficial to a tenant- accrues- anything that isn't- doesn't.

    A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

    Scary stuff. And this is why politicians, trying to appeal to a larger group of people (i.e. those who rent) disadvantage a smaller group of people, who provide the housing needs of others, and in doing so, mess the whole thing up for everybody, imho.

    E.g. Holiday lettings, airbnb, not letting at all options are now often more attractive to more landlords because of this penalising, one sided legislation. Stupid, imho.

    P s. I wonder did fine gael introduce such draconian, once sided legislation cos they'd see many small landlords as more likely to be supporters of Fianna Fail!?!


Advertisement