Landlord / Tenant Question

pleba

Hi,

Wondering if someone can help me out with the following.
My friend has a group of 6 tenants who has been living in a house belonging to him for over 10 years. Throughout this period 1 of the tenants has been the main point of contact for my friend and the other 5 have changed over the years.

A few months ago, my friend served the main tenant with written notice to quit (approximately 90 days notice) as the house was due to be sold. 1 week before they were due to leave, this particular tenant told my friend that because the notice was not given for 112 days (as per the residential tenancies act), my friend must issue them with another notice period of 112 days. Does anyone know if this is true and is the tenant allowed to wait until 1 week before they are due to leave, to mention this to the landlord?
Because this Act only came into existance on September 1st 2004, is the occupancy period not classed as being between 6 to 12 months, thus meaning a notice period of only 35 days is required?

To make matters worse, they have not paid the last months rent.
Also, there is no lease currently in place (2 months expired) due to the fact that they were supposed to be leaving.

Any help would be greatly appreciated.

This may help

You must give them 14 days to pay the overdue rent and if they dont pay you can give them 28days notice to quit.

I would suggest getting legal advice if the cost of that is going to be less than the cost of delaying the sale.

MorningStar

From reading that It sounds like the tennats have a point. The regulation coming in later doesn't matter it gave the rights to all tennants.
Why did the tennats change their mind about moving? After being there ten years you can see he might be a little reluctant to leave. Is it all the tennants or just some? Is it a shared accomadation or seperate.?
What do the current purchasers want the house for? They might take it with tennants.
Anyway sometimes tennats can see a quick buck. Offering a cash incentive to get them out might not be a bad idea in the scheme of things. It might stick in the throat but the sale could be lost. The tennants know the situation and will most likely use it to their advantage.
Get all the documentation ready for sale so that all is required is signatures. Kick the peope out and sign in one day very hard for any legal recourse after the fact. This is a last resort and you might want legal advise. I would talk to the lawyer and the purcahser now.

Victor

pleba wrote:

A few months ago, my friend served the main tenant with written notice to quit (approximately 90 days notice) as the house was due to be sold. 1 week before they were due to leave, this particular tenant told my friend that because the notice was not given for 112 days (as per the residential tenancies act), my friend must issue them with another notice period of 112 days. Does anyone know if this is true and is the tenant allowed to wait until 1 week before they are due to leave, to mention this to the landlord?

Your friend didn't comply with the act. That he did so inadvertantly is irrelevant, he needed to give the 112 days. I don't know if the tenant can insist on another 112 days or that it would merely be 112 days from notice being given. In Equity (a branch of law), the complainant must come with clean hands, I don't think either of them has clean hands (landlord for getting it wrong and tenant for waiting so long to tell him of his error).

pleba wrote:

Because this Act only came into existance on September 1st 2004, is the occupancy period not classed as being between 6 to 12 months, thus meaning a notice period of only 35 days is required?

I can't see anything about existing leases on www.threshold.ie or www.prtb.ie so I can only assume this is in fact a 10 year residency.

pleba wrote:

To make matters worse, they have not paid the last months rent.

Then he should make this point in writing to them (each) and explain his rights.

pleba wrote:

Also, there is no lease currently in place (2 months expired) due to the fact that they were supposed to be leaving.

I'm not sure if this matters, the previous lease would stand.

All I can suggest is that he contacts the PRTB himself (he is registered, isn't he?) and get their advice or ultimately talk to a solicitor.

pleba

yep. he is registered with the PRTB and in fact rang them to explain. Their answer was that only 35 days notice is required. The person from the PRTB had to check with a colleague who also said that only 35 days notice was required.

he has since checked with a solicitor who said that this was not the case (ie: 112 days was required). If the PRTB don't know and then give out incorrect information, then there really is no hope!

MorningStar wrote:

Why did the tennats change their mind about moving? After being there ten years you can see he might be a little reluctant to leave. Is it all the tennants or just some? Is it a shared accomadation or seperate.?
What do the current purchasers want the house for? They might take it with tennants.

I suspect it wasn't a change of mind, moreso bitterness at having to move.
The fact that he waited until the last week to insist on another 112 days would indicate that this was the plan all along.

There are 6 people on the lease but there has only ever been one point of contact. Everything is coming from this person. Don't know whether or not he is speaking on behalf of the others though.

The house has not been sold yet. The tenants need to move out so that the place can be prepared for sale.

MorningStar

pleba wrote:

I suspect it wasn't a change of mind, moreso bitterness at having to move.
The fact that he waited until the last week to insist on another 112 days would indicate that this was the plan all along.

I would guess it is either bitterness or an extortion type excercise. It's only human nature really and to be expected. Many Landlords do the stay out your deposit idea but it is flawed. The deposit should always considered for it's intended purpose (learnt that from experience)

pleba wrote:

There are 6 people on the lease but there has only ever been one point of contact. Everything is coming from this person. Don't know whether or not he is speaking on behalf of the others though.

Another thing that I have learnt is never allow one person be the point of contact. There are a good few stories of people pretending to be the landlord. I know of people who were making money off renting property they didn't own unaware to the landlord. The other people may not even know anything and he could have collected the rent from them and/or deposits.

pleba wrote:

The house has not been sold yet. The tenants need to move out so that the place can be prepared for sale.

In a real bind now. Better to wait till next summer now when house prices are at their highest. BY the time he does get them out and do the work he will be selling in the worst season IMHO. If he is to follow the correct proceedures that is. It's a shame that a 10 year relationship ends baddly but landlords aren't exactly seen very highly in this country and most tennant resent their landlord to a degree.

Thomond Pk

Did your freind have a lease in place during the tenancy?

If so read the sub-letting &/part sub let clauses/provisions which would stipulate that the tenant(s) must apply in writing. If this hasn't been done simply send them a notice to quit under the forfeiture provisions of the lease for non-compliance.

The landlord may terminate with 28 days notice where the tenant is in default.

pleba

Thomond Pk wrote:

Did your freind have a lease in place during the tenancy?

If so read the sub-letting &/part sub let clauses/provisions which would stipulate that the tenant(s) must apply in writing. If this hasn't been done simply send them a notice to quit under the forfeiture provisions of the lease for non-compliance.

Thanks for all the responses. However he is not subnetting. At least not to the knowledge of the landlord. There are 6 people on the lease and as far as the landlord is concerned these are the 6 people living there. No way of proving otherwise.

Thomond Pk

Ask your freind how many signatories there are to the lease, if there is one then this route is exhausted but if there are more than one person who signed and if any of those people have been replaced by others there should be a provision in the lease requiring that the tenant seek consent, which may not be reasonably withheld. If consent is required and was not sought then the tenants have broken the terms of the lease and are in default. I would not advise you of this except that it appears that they have been sticklers for the rules when it suited them and this time of the year is better than any to find residential property.

Victor

Thomond Pk wrote:

The landlord may terminate with 28 days notice where the tenant is in default.

This is outdated. The residential Tenancies Act allows periods of up to 112 days.

Thomond Pk

If you read the the Act the notice terms you have described relate to compliant tenants where tenancies have arisen in the absence of formal lease renewal or at lease expiry with the tenant getting the benefit of whichever is the greater once they have complied with all the lease conditions and covenants. If a tenant is in breach of one or more clauses then the passing notice period applies as it was not altered from 28 days, rightly so I believe, a good tenant is a great asset a bad one can be a significant liability.

Victor

MorningStar wrote:

Another thing that I have learnt is never allow one person be the point of contact. There are a good few stories of people pretending to be the landlord. I know of people who were making money off renting property they didn't own unaware to the landlord. The other people may not even know anything and he could have collected the rent from them and/or deposits.

It called sub-letting. Its legal. You can however prohibit it in the lease.

Better to wait till next summer now when house prices are at their highest.

Whatever about sales being better in Spring and Autumn, you have no magic ball to predict that house prioce will be at their highest next summer.

Thomond Pk

Victor wrote:

It called sub-letting. Its legal. You can however prohibit it in the lease.

The standard Law Society 'short-form lease' and derivates do deal with sub-letting a typical wording would be 'No sub-letting is permitted without the express written consent of the landlord, consent may not be unreasonably withheld'

MorningStar

Victor wrote:

It called sub-letting. Its legal. You can however prohibit it in the lease.

I know it is but you do need to have permission and a standard residential lease does not have it as permitted. It is never advisable to have one point of contact in a largish property because you don't know what else is going on.

Victor wrote:

Whatever about sales being better in Spring and Autumn, you have no magic ball to predict that house prioce will be at their highest next summer.

No magic ball but the time it could take to get them out if they decide to be difficult makes it easier to reschedule. THere is no way of saying they are at the highest now either but selling in the winter is so much more difficult a wait might be a good idea if that's how long it takes to get them out.

Hornet

It seems to me that this issue was badly handled from all sides. Now the relationship, which seemed to have been a positive one (or at least not a bad one) considering that it lasted for 10 years is damaged and suddenly all sides turn to the solicitors etc. Pity as it only confirms the opinion of most people about relationships between tenants and landlords. The previous 10 years are forgotten.

Correct me if I am wrong, but this is how I see the situation:

pleba wrote:

My friend has a group of 6 tenants who has been living in a house belonging to him for over 10 years. Throughout this period 1 of the tenants has been the main point of contact for my friend and the other 5 have changed over the years.

My interpretation of Section 50 of the Residential Tenancies Act 2004 is that the different tenancy durations for the 6 people do in this case NOT affect the notice period differently. Instead all multiple tenants have the same right as the longest tenant there. That means that the 112 days applies to all of them, even to a tenant who only lived in the house for maybe 1 year.

pleba wrote:

A few months ago, my friend served the main tenant with written notice to quit (approximately 90 days notice) as the house was due to be sold. 1 week before they were due to leave, this particular tenant told my friend that because the notice was not given for 112 days (as per the residential tenancies act), my friend must issue them with another notice period of 112 days.

Obviously (- and to be honest- understandably) the tenant(s) where not too happy about being told to leave. This is something that the landlord should have anticipated (after 10 years of loyalty to each other) and as a consequence it had been advisable to have a chat with the tenants before a written notice is served. There is no legal requirement, but I would call it decency or politeness. It certainly helps anticipating problems and it could have been an offer to find a suitable solution. Most of us would get quite upset to find after 10 years a cold letter in the letterbox telling you to pack your bags.

On the formal side: The notice was without a doubt NOT a valid notice. Even if most of the requirements for a valid notice might have been adhered to, it seems that at least the correct notice period and the requirement (Section 62 (g) in the Residential Tenancy Act) of stating that "any issue as to the validity of the notice or the right of the landlord or tenant, as appropriate, to serve it must be referred to the Board under Part 6 within 28 days from the date of receipt of it."

It seems your friend unfortunately didn't inform himself sufficiently about the legal requirements, otherwise the requirement of a 112 day notice period would at least have come up as a "potential" issue/requirement.

The fact that the tenancy started before the Act became law, doesn't mean that the tenancy duration would start from scratch. The fact that there might have been a lease contract in place when the act became law has no influence either IF the contract contradicted the act. All clauses contradicting the act would be made void by the act.

(By the way: Many standard lease contracts out there today and even issued - and signed - since September 2004 (when the act came into operation) contain clauses that contradcit the act!)

Importantly, however, the tenants didn't inform themselves either about their legal obligations! While the notice letter would have to state it explicitly, it is still a legal requirement according to the act to object to the notice within 28 days of receipt. Clearly the tenants didn't do that, but instead I guess they decided to cause max trouble to the landlord by waiting until 1 week before the end and only then objected. It seems however, that the objection should go to the Residential Tenancies Board, not just back to the landlord!

So both sides really messed it up!

pleba wrote:

Does anyone know if this is true and is the tenant allowed to wait until 1 week before they are due to leave, to mention this to the landlord?

No, they can't just wait until 1 week before as I explained above, but they could claim that they never got a VALID notice letter and therefore didn't feel obliged to adhere to the 28 days as no VALID notice was served.

pleba wrote:

Because this Act only came into existance on September 1st 2004, is the occupancy period not classed as being between 6 to 12 months, thus meaning a notice period of only 35 days is required?

No, definitely not! This would have been a severe interference with acquired rights for long term tenants when the act came into operation. Starting ALL tenancies in the country from Day 0 is not something that could have been done.

pleba wrote:

To make matters worse, they have not paid the last months rent.
Also, there is no lease currently in place (2 months expired) due to the fact that they were supposed to be leaving.

Not having paid last months rent is probably their way to get the deposit back and is something totally unacceptable, but an approach that seems to be seen as the norm by many tenants.

By not paying the rent, they clearly broke the law and the act says that where the tenancy is being terminated by the landlord by reason of the failure of the tenant to comply with any obligations of the tenancy, the notice period is 28 days for failure to pay an amount of rent due if the following condition is satisfied: The tenant has been notified in writing by the landlord that an amount of rent due has not been paid and 14 days elapse from the receipt of that notice without the amount concerned having been paid to the landlord. (Section 67)

If they pay within 14 days, the tenancy can NOT be terminated within 28 days.

Thomond Pk is right that if a tenant (or multiple tenants) does not comply with any of the obligations of the tenancy (with the exception of the rent payment issue) the notice period is 28 days. However, the obligations are specified in the act as well. (Un-authorised sub-letting is one of the possible non-compliances listed, but according to pleba, this is not the case here.)

A last point: The fact that there is no lease agreement doesn't mean anything. As most lease agreements contradict the Act, all contradicting clauses in the agreement are void anyway, so most lease agreements look more like swiss cheese (from a legal point of view :-) ) than like a contract.

The Act explicitly says in Section 54: No provision of any lease, tenancy agreement, contract or other agreement (whether entered into before, on or after the relevant date [i.e. the date the Act came into operation] may operate to vary, modify or restirct in any way a provision of this Part [i.e. Part 4 of the act, which is about the Security of Tenure].

To end this long mail, my advise: I think the only way is to either find an agreement with the tenants OR to get the Residential Tenancies Board involved. However, both parties have egg on their face and a compromise might be the only solution.

--Hornet

pleba

Hornet wrote:

Obviously (- and to be honest- understandably) the tenant(s) where not too happy about being told to leave. This is something that the landlord should have anticipated (after 10 years of loyalty to each other) and as a consequence it had been advisable to have a chat with the tenants before a written notice is served. There is no legal requirement, but I would call it decency or politeness. It certainly helps anticipating problems and it could have been an offer to find a suitable solution. Most of us would get quite upset to find after 10 years a cold letter in the letterbox telling you to pack your bags.

Thanks for the detailed reply and all the other replies.
My friend did make a phone call explaining his decision a number of weeks before the formal notice was sent. Whilst there was obvious upset, it was accepted. The fact that they didnt object within 28 days is being dealt with now by the solicitor along with the non payment of rent.

My friend isn't a property investor, serial landlord or anything like that. Its just a family property passed down to him years ago. Whilst it's not the done thing to claim ignorance of the law, the Residential Tenancies Act makes it very difficult for someone like him (ie: someone who up to now had no hassle whatsoever with the tenants). It would seem that in order to interpret it totally accurately and to do everything completely by the book a solicitor is required. To be honest before the hassle started he didn't realise the extent of the formality and legality that was required. This is not something that is widely publicised and as a landlord myself this whole episode has opened my eyes to a number of things. It's actually put me off renting out my property. But that's a whole other story!

It's a total shame because now due to this whole episode this particular tenant, whilst getting his way, will also end up being sued on a couple of fronts due to incidents that have occured to the property since notice was served.

Andrew Duffy

The spokesperson from the PRTB is correct. The residential tenancies act came into effect on 1 September 2004 (nice summary here), and a tenant with a lease expiring six months or more after that date is obliged to write to their landlord informing them of their intention to convert to a part 4 tenancy. I doubt this would be easily enforceable.

The act is here:

http://www.oireachtas.ie/documents/bills28/acts/2004/a2704.pdf

The fact that "Periods of occupancy before relevant date to be disregarded." is quite clearly written in the margin of section 27 would lead me to doubt the efficacy of your solictor. Section 195 is about the tenant's obligation to inform his landlord of his intention to convert to a part 4 tenancy.

Edit - "Periods of occupancy before relevant date to be disregarded." is the title of section 27; all sections have the title included in the margin for clarity.

Hornet

Andrew,

Section 28 states that the statutory protection of a Part 4 tenancy applies after 6 months of occupation as long as no notice of termination has been served before the expiry of the 6 months. Section 195 does require the tenant to inform the landlord (only if he has a fixed term contract) if he plans to stay longer. Interesting question might be: What if the fixed term contract is for 12 months? After 6 months the tenancy has turned into a Part 4 tenancy as per Section 28.

(Nothing in 28 says that the contract has to be an open ended lease contract for a tenancy to become a Pat 4 tenancy! And nothing in Section 195 says if the tenant for example in Month 10 of a 1 year lease informs the landlord, the lease has NOT become a Part 4 tenancy and the landlord can terminate it! It only says that the landlord COULD get damages IF he suffered loss or damage out of the fact that the tenant didn't inform him.)

The summary you provide a link to says:

A Tenant in continuous occupation of a dwelling for 6 months or more (periods of occupation prior to the 1st September 2004 shall be ignored for this purpose) is automatically entitled to a tenancy of a further three years and six months. This 4 year tenancy is defined by the Act as a Part 4 tenancy and applies to all tenancies from 1st September 2004. A Part 4 tenancy shall not arise if the Landlord serves a notice of termination within the first six months of the tenancy giving the Tenant 28 days notice in the prescribed form.

By the way the sentence "periods of occupation prior to the 1st September 2004 shall be ignored for this purpose" or a smilar reference at the side of Section 27 in teh act only refers to the check point for Part 4 Tenancy. The Explanatory Memorandum says:

"Section 27 provides that occupation before this Part is commenced is to be diregarded so that the 4-year tenancy cycle starts from the commencement date of this Part for all tenancies in existence when the Act comes into force." This means that if the tenant has lived there already 2 years, you can't now assume that 2 years of his 4 year Part 4 tenancy have been "used up".

However, this sentence "periods of occupancy before relevant date to be disregarded" does NOT imply that for the purpose of calculating the notice period the occupation prior to that date shall or can be ignored!! Section 61 (2) makes it clear that the "duration of tenancy", which is used to categorise the notice periods is a "period beginning on the day on which the tenancy came into existence or the relevant date, if later".

So without a doubt the duration of tenancy has been longer than 6 months to 1 year and - in my opinion - the tenancy has been a Part 4 tenancy in this case. Therefore a notice period of 112 days NOT of 35 days is required and ti seems very much that the person at the PRTB office was NOT correct. It is not the efficacy of the solicitor that is in doubt here, but it seems that PRTB people could do with looking at ALL aspects of the Act.

--Hornet

Andrew Duffy

Well spotted, but I still believe the PRTB is correct:

Section 61
A reference in this Part to the duration of a tenancy is a reference to the period beginning on the day on which the tenancy came into existence or the relevant date, if later, and ending on the date
of service of the notice of termination concerned.

Section 5
"relevant date" means the date on which Part 4 is commenced

Hornet wrote:

What if the fixed term contract is for 12 months? After 6 months the tenancy has turned into a Part 4 tenancy as per Section 28.

Nothing:

Section 26
Nothing in this Part operates to derogate from any rights the tenant enjoys for the time being (by reason of the tenancy concerned) that are more beneficial for the tenant than those created by this Part.

Victor

Hornet wrote:

Interesting question might be: What if the fixed term contract is for 12 months? After 6 months the tenancy has turned into a Part 4 tenancy as per Section 28.

In some random 12 month lease, then the landlord (or tenant) would need to give 35 days notice.

Hornet

Victor wrote:

In some random 12 month lease, then the landlord (or tenant) would need to give 35 days notice.

Yes, you are right and there is not much of a question about the notice period, but is Section 195 not superfluous?

In Section 195 it says that the tenant needs to inform the landlord max 3 months and min 1 months before the end of the tenancy if he wants to stay longer than the fixed term. Assuming the fixed term was 12 months and in month 10 the tenant duly informs the landlord that he wants to stay longer. What purpose does that have? To some extent Section 195 sounds as if the intention was to allow the landlord to AVOID the commencement of a Part 4 tenancy (by giving notice before the end of the fixed term). However the tenant has already entered a Part 4 tenancy at the end of Month 6, so the landlord can't stop the tenant from staying for the full 4 years (unless the specific reasons for termination are fulfilled).

Strangely the Explanatory Memorandum says: Section 195 requires a tenant of a fixed term tenancy for a term of 6 months or more who intends to avail of the protection afforded by Part 4 and to remain in occupation when the fixed term expires, to notify the landlord of that intention between 1 and 3 months before the expiry of the term.

This COULD be interpreted like this: If the tenant doesn't notify the landlord explicitly, then he could be stopped from "availing of the protection afforded by Part4", but that is - in my opinion - not the case, because the Part 4 tenancy is not suspended as long as a fixed term tenancy is in operation. Instead the Part 4 tenancy (and all its protection) started after Month 6.

So what the heck is the purpose of Section 195????

Andrew Duffy

So what the heck is the purpose of Section 195????

I think its there to avoid imposing new restrictions on landlords of existing tenants - along with the constant mentions of "the relevant date". The one case "the relevant date" doesn't cover is that of a tenant with a lease expiring on or after 1 March 2005, who would thus become protected without the landlord having any option to evict apart from the usual reasons of selling, breach of terms, etc.
However, section 195 doesn't acheive this - there is no way for the landlord to refuse the request to convert to a part 4 tenancy. The expectation seems to be that tenants will fail to seek legal advice and thus get evicted at the end of their lease, but this is very poor - a judge is likely to rule for the tenant in this case. I wonder how much it cost to draft a bill that a couple of lay people on an Internet messageboard can pick a pretty big hole in?

Incidentally, I was one of those tenants, and I did write to my landlord between three months and one month of my lease expiring. I wonder how much company I'm in?

Andrew Duffy

Victor wrote:

In some random 12 month lease, then the landlord (or tenant) would need to give 35 days notice.

Certainly not - the act does not reduce any protections already in place. Under an existing lease, neither the landlord nor the tenant can give notice. Prior to the new act, it was up to the tenant to negotiate a new lease or leave by the end of the expired one. Now the tenant can negotiate a new lease if he desires, but any reason I can think of to do so is now gone.

Also, remember that the tenant's notice periods are different to the landlord's once the Part 4 tenancy is over two years old.