Licensee renting troubles

I've searched through the thread and cannot find your reference to threshold siding with a LL in a tenncy dispute about a tenant taking in a licensee. You might repost the link / reference.

As @DFB-D posted, the legal advice they received was that such a restriction would be unenforcable.

Thanks. I was looking in your posts.

The OP stated that John had not told the landlord that he (the OP) had moved in. In failing to notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling, John is in breach of his obligations under section 16 of the RTA and, as advised by Threshold, the landlord would be entitled to issue John with a notice to remedy the matter, and if not remedied, with a notice of termination.

The simplest way for John to remedy the situation is for John to notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling. John is then in compliance with his legal obligations.

The landlord has no right to approve or disapprove whether John invites someone into his home, only the right to be notified. The 'excuse' of overcrowding would not hold up with only three people in a three bedroom house.

Once John notifies the landlord in writing that the OP, for the time being, resides ordinarily in the dwelling the landlord will have to accept it

This perhaps ...

As explained, notifying the LL in writing is all John is obliged to do. The LL seeking the right to approve or disapprove is an modification, variation or restriction of the tenants duty to notify the LL in writing of anyone ordinarily resident, which would fall foul of section 18(1) of the RTA. The tenant cannot contract out of any of their rights.

@DFB-D 's legal advice was that such a restriction in a lease would be unenforceable.

Worst case, John informs the LL in writing that the OP, for the time being, is ordinarily resident. The LL still isn't happy and issues a warning notice. John disputes the validity of the warning notice and opens a dispute with the RTB. The LL can do nothing until the RTB makes a determination on the dispute. If I were the LL I wouldn' be betting my shirt on the outcome.

If I were the OP I wouldn't be going anywhere in a hurry. If it comes to it, let it wait until the RTB issues it's determintion, and I don't think he will have to go anywhere then.

How would additional occupants in the dwelling affect the landlords insurance? Do they specify the number of people living there?

I always thought a licensee was a paying guest, eg, hotel, b&b, digs etc. which seems to agree with Nos 1-3 on the RTB website. I thought No 4 was included by the RTB to cover guests & visitors eg family or friends in a rented property but not paying guests.

If the RTB wanted to include paying licensees sharing with a tenant in rented accomodation why did they not say "sharing with the owner or the tenant" at No 2 in their list?

From the RTB:

Examples of a licence are a person staying in hotel, hostel or guesthouse or a person sharing a house with the owner.

A licensee is a person who occupies accommodation under license.

Licensees can arise in all sorts of accommodation but most commonly in the following four areas;

1. persons staying in hotels, guesthouses, hostels, etc.,
2. persons sharing a house/apartment with its owner e.g. under the ‘rent a room’ scheme or ‘in digs’,
3. persons occupying accommodation in which the owner is not resident under a formal license arrangement with the owner where the occupants are not entitled to its exclusive use and the owner has continuing access to the accommodation and/or can move around or change the occupants,
4. persons staying in rented accommodation at the invitation of the tenant.

What is the difference between a two day airbnb paying guest and a year long paying guest, ie a licensee/lodger, except the duration of the occupancy. Why would one be allowed but not the other?

Does the RTA allow a tenant to run an airbnb/b&b in a rented property? Would that be a business activity? Does the landlord insurance allow that?

The questions about licensees and sub-lets keep coming up so maybe others are as confused as me. I think I get it and then a new thread starts that throws new questions into the mix. Renters and owners need to know how things work but sometimes it's not clear from the information available online and boards posts can be very helpful.

I asked someone who works in this area about sub-lets, licenses and assignments and this is my understanding of how she explained it. She said a typical sub-let situation is where the council lease a property from an owner for 10-25 years, pay the owner even if the property is empty and sub-lets to a council tenant. Another situation is when tenants want to leave a fixed term lease early, they move out and sub-let with owners permission. If the owner refuses, they just give the correct notice for their time in occupation. Another is a part4 tenant who wants to sub-let the entire place for a few months while travelling or working abroad. She mentioned this section that I wasn't aware of and hadn't seen discussed on boards; it says sub-letting part of a dwelling is prohibited:

Further special case (sub-letting of Part 4 tenancy).

32.—(1) F1[Schedule 1] to this Act has effect for the purpose of affording protection in relation to a sub-tenancy created out of a Part4 tenancy or a further Part4 tenancy.

(2) The creation of a sub-tenancy in respect of part only of the dwelling, the subject of a Part 4 tenancy or a further Part 4 tenancy, is prohibited.

(3) Any such sub-tenancy purported to be created is void.

An assignment is when a tenant transfers their interest to another person who takes on the original lease with the same T&Cs. This happens when some tenant in a joint lease wants to leave but some don't. With owner permission, the tenant leaving assigns their interest and the replacement can be added as a tenant immediately or have a trial period as a licensee of the original tenants. If the licensee requests to be a tenant, the owner can't refuse as they already agreed to the replacement. The licensee gains part4 rights after 6 months occupation after they're added as a tenant. They don't have to become a tenant and the original tenants left on the lease are liable for the full rent. She said it is usually one in/one out in line with the lease agreement.

She said a licensee who is airbnb or a lodger only arises when it is with an owner. Also, a licensee of a tenant is usually a visitor or guest and arrangements to move in additional occupants would be very unusual and she never heard of a tenant taking in additional renters without the owners permission. Also, residental leases should be stamped with Revenue and the fee is E12.50 - wasn't aware of that.

Posters who know a lot about the RTA are probably fully aware of all the above items. Would welcome clarification about anything that is correct / incorrect, thanks.

Edit: delete duplicate words

this should help...

https://www.irishtimes.com/property/residential/2022/10/05/can-my-landlord-increase-the-rent-if-my-partner-moves-in/

I think this argument has been done to death now at this stage with no consensus.

No point in making statements that the landlord can or can't refuse an additional person living there under licence unless you have something to back it up.

I think the summary of the argument is this:

1. The landlord can prevent licences in the lease - no cases or legislation to back this up, based on the effectiveness of the lease terms.

2. The landlord cannot prevent licences as it impacts on exclusive occupation / peaceful enjoyment - no cases but assumed from terms in the RTA.

I’m still waiting for you or anyone else to post a link which allows the tenant to over ride the lease in relation to a limit on the number of occupants.

A lease is a binding contract, there is case law on the enforceability of written tenancy agreements, for example fixed terms and evictions, but you have not shown the legislation which makes a lease non binding in relation to occupancy numbers.

So look, if you know what the relevant legislation is, post it here, but sections 12 and 16 are not it.

And likewise no evidence has been given by you or others to say a landlord can restrict.

Its not enough for me to say a lease is a binding contract, there is a lot of terms which would not be upheld so unless you see it at the RTB.

And that is the problem, there's not much point in discussing it further as no-one has anything but their own experience or opinion. I got legal advice, but that's relevant to me only and I guess not very influencial for anyone else.

BTW, it was not my argument I summarised, it was the arguments I read on this tread. Personally I just think that a solicitor can do the interpretation and I'll apply what they recommend.

There is no evidence that the legislation over rides the tenancy agreement, if there was, you would have posted the legislation. In the absence of that legislation, a binding contract like a tenancy agreement would apply.

Im not posting about my own experience, I’m asking you, and others to show me the law that backs up your opinion, mine is supported by contract law. If a tenancy is a legally binding agreement, and nothing in the RTA precludes a limit on tenant numbers being agreed between LL and tenant when the contract is signed, you show me what legislation over rides that term of a legally binding contract.

I’ve done my part, now you do yours.

The legislation says nothing about the landlord having to be reasonabl in allowing another person reside in the property. The boilerplate lease clause is "not to assign sublet, share or otherwise part with possession without the express written consent of the landlord. There is no case of the RTB finding such a clause void. It is a perfectly reasonable clause for a landlord to insert. The legislation supports the landlord in Section 16(h) of the act. I was in a case where the RTB gave an order agaisnt a tenant who had moved in a flatmate without permission. No mention was made of the tenant having a right to do so or the landlord having to be reasonable.

The Irish times article was written by Marcus O’Connor who is a chartered valuation surveyor and member of the Society of Chartered Surveyors Ireland, not a lawyer.

He quotes no legislation in his article and it is wrong insofar as he says "Problems arise when tenants move individuals into a property without notifying the landlord as this would be a breach of the tenancy-and-lease agreement in place. In such a situation the landlord would be entitled to end the tenancy due to the breach but only after a 28-day warning letter to rectify the breach had been ignored.".

If a new person was moved in without permission, the landlord would have to give notice that there was a breach of the conditions and give a reasonable time for compliance. Only if there is a failure to comply can the landlord terminate.

The RTB can only force you to accept a tenant after the person has lived in the property for 6 months with your consent.

I don’t require “a high level of proof”, any proof that the legislation trumps the lease in relation to agreed occupancy numbers will do.

A lease is a binding contract, there is no disputing that. I also do not dispute that a clause in a contract which contradicts the RTA will not be binding, but there is no clause in the RTA that prevents a lease stating the number of occupants who may reside there, ergo there is no legislation which over rides a binding contract on the number of occupants.