One tenant is leaving and landlord refuses assignment

Do you mean that tenants can move in any number of licensees who can request to become tenants and the landlord must agree? Where does it say that a landlord is obliged to accept replacements and/or or additional tenants?

Afaics, these clauses mean that sub-letting and assignments of only part of a tenancy are not allowed :

S32. (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

Also:

S38. (4) The assignment of a Part 4 tenancy with respect to only part of the dwelling, the subject of the tenancy, is prohibited.

(5) Any such assignment purported to be made is void.

It seems from S38 than an assignment must be for the entire lease, so if one member of a group of tenants decides to leave, they can't assign their part of the lease to another individual.

The decision to accept a replacement tenant is down to the landlord. It seems reasonable that a landlord would expect any potential replacement tenant to provide the same paperwork as the original tenants ie. references, ability to pay etc. If he agrees, the tenancy/ lease agreement would need to be modified which would incur solicitors fees. Modifying the lease is a separate thing to the obligation on the landlord to update the changes on the RTB registration. New tenant/s then need to have six months occupancy to gain their own individual part4 rights within that modified tenancy/ lease.

If the tenants want a non-tenant ie. a licensee to reside in the dwelling, they are required to:

S16. (n) 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.

If it states in the lease (which is a standard condition) that the tenant cannot assign, sub-let, or share possession with anyone else without the express written consent of the landlord, the landlord can refuse to let the existing tenant let a room to anyone else. The landlord can terminate for breach of condition if the tenant breaks the terms of the lease.

It is also arguable that the tenant in letting a room is carrying on a business which in itself may be a breach of the lease.

Sharing possession includes licencees.

There is a term which allows the landlord to terminate based on

"The dwelling is no longer suitable to the accommodation needs of the tenant and of any persons residing with him or her having regard to the number of bed spaces contained in the dwelling and the size and composition of the occupying household."

Business is rather a generic term, but the generally accepted interpretation is a level of activity beyond letting of rooms, e.g. Airbnb, B&B etc. It is ludicrous to even suggest the Irish courts will consider a term inserted prohibiting business use as limiting the tenants ability to create a licence.

In settlement of this particular argument, the following are the pertinent facts:

1. In 20 years of RTB published cases, there are 0 instances of a landord terminating a tenancy on the basis of a license arrangement entered into by the Tenant.
2. The law society residential lease template contains 0 terms in relation to licences.
3. Most estate agents charge a documentation fee for tenants replacing prior tenant's. Bizarrely it has been claimed that replacement tenants/ licences are prohibited in most leases despite points 2&3.

OP you should consult threshold or FLAC on this matter, anyone on boards can give you advice, but they do so risk free to themselves and often while well meaning posters exist, there are trolls and idiots who will give you maliciously false information.

"Letting in order to generate an income is a business activity, whether it is as a contribution to rent or not." - No - refer to badges of trade for the test used by Irish courts.

"Standard leases forbid the subletting assignment or sharing possession without the express written consent of the landlord" - No, Standard would suggest that you would expect to see this term in all leases (nearly impossible to measure this btw) but no such term in the law society template or EAs leases, so based in this, the OP/others can decide for themselves whether it is standard or not.

In any case, a licence does not share "possession" - this is again a legal term which conveys legal rights to the property, which a licence does not create. Such a term would not prohibit a licence arrangement.

"20 years of RTB cases are not available to view. The only cases which can be read are tribunal decisions. IS there one reported case where the Tribunal upheld the tenants right to introduce a licensee without the consent of the landlord. In some cases the landlord accepted rent from the licensee and the RTB held that by conduct the landlord had recognised a tenancy." - A person who makes payment to the landlord = tenant, that is not remotely relevant to the issue at hand.

Point stands - you cannot produce a single case, legal article to support your opinion, can you?

Revenue look at the substance of the arrangement, which is to share the rental expense, this situation would be an non issue for Revenue in most instances as there is no tax due.

But technically yes, the rent recieved by the tenant is considered Case v income and relieved by RAR (in which case can be returned on form 12), alternatively if RAR is not claimed, the rent paid to the landlord is deductable from the rent recieved.

Short term rental income is different, at a low level, it can be Case V, intensively, it is Case I.

Serious error there - you claim the leading case for carrying on a business activity is a consumer credit case? Have you read it? Those acts define a "business" for the purposes of contrast to a consumer - thereby excluding businesses from the protections available to consumers - in no way relevant outside of consumer legislation. Have you got a case mentioning these acts?

Read the badges of trade.....it makes sense as a test, and no your description is incorrect.

Regarding your last remark, you gave the OP pointed and clear advice based on your opinion, but you had no basis from which to do so, you also added a sarky comment "move on with your life", that is one major difference between our positions....

Now be a good man and leave this topic. I know your style is to never admit you were incorrect or to admit you misrepresent yourself as an expert, but hey, maybe you have grown since my last interactions with you?

Thanks. There's stuff about licensees - Revenue rules and RTA regulations - that are not very clear (to me).

Revenue:

In a single tenant letting, the tenant can do long term RaR (tax free) or short term AirBnB (taxable) as far as Revenue is concerned. The tenant always needs to include the rental income on their tax return.

In a multi-tenant letting, the tenants can also do both as far as Revenue is concerned, but they don't need to make a tax return for the RaR, only for AirBnB income as Revenue looks at the substance of the arrangement. Fair enough, but it seems wrong to me that an individual tenant would be treated differently to a group of tenants for tax purposes.

RTA:

I wonder if RTA regulations are being broken when there are a group of tenants in a single unit, ie. a house-share. The RTA says that 'part' of a tenancy can't be assigned or sub-let. It would be very transparent if the group, who share kitchen and bathroom facilities, had their own individual lease. They could assign or sub-let their own lease (with landlord's permission) but afaik, individual leases are not allowed because a tenancy agreement can only be for a self-contained unit.

Tbh, it sounds to me like RaR and AirBnB are actually sub-leases of 'part' of the tenancy. Also if one tenant surrenders their interest ie. their 'part' of the lease, it can't be assigned. In reality, that's what happens when a licensee is moved into the vacant bedroom by the remaining tenants. The new house-mate is a long term occupier and pays the rent due for that room. In which case, the tenants have either part sub-let, or part assigned. Then in Part4, Ch6, S50.7 it says licensees who are 'lawfully in occupation'. Does that not mean only licensees in occupation with the landlord's permission can request to become a tenant?

I think what happens in a lot of house-shares is that the landlord and tenants agree changes to the lease beforehand, but, if it's not agreed, and the tenants do it anyway, does that mean they will likely get a NoT?

There is no difference between a single tenant and multiple tenants, Revenue just don't chase non issues as there is no tax liability.

Look, some situations require legal advice, in my case the advice given to me was that terms limiting licences should not be included in leases as unenforceable. You can choose to believe differently, but that position is not documented by previous cases, articles or anything that could give you reasonable expectation that your position is correct. If you have a solicitor confident enough to include the term and a convincing legal argument, great - let me know and I will be their next client.

Actually, the RTB now have a lease template, I think they would have included the common terms which they consider valid.

As regards licences lawfully in occupation - the landlord cannot issue licences as per the RTA on relevant properties, a licence/permission from the landlord = tenancy. Hence it could only mean a licence agreed by the tenants.

Yes, I can see how licensees couldn't be mentioned in a lease as that classification could include eg children of tenants, or guests and visitors. Appreciate the information.

Really more confused points?

Bottom line here - you have no legal training (and certainly poor reading skills) and no one here is obliged to pander to your ego.

For everyone else - here is the RTB lease template - but obtain legal advice as always before using. You may need a legal genius to overcome some of the terms in the lease/act. Apparently legal genius is best found here on boards.ie! For example, I learned today, pets are somehow relevant to licencees.

https://www.rtb.ie/registration-and-compliance/beginning-a-tenancy/residential-tenancy-agreement-template

Yes confused - you have added more criticial errors -

1."the tenant is trading" - rent which qualifies for RAR is not trade income - never ever ever 😭

2. You added lots more noise - it just really makes you look silly. Pets, overcrowding, house rules - no relevance to licencees. Pets can be fur babies but yet are not recognised as having the ability to contract 😂

3. There's a hell of a lot more errors, mostly what you have misunderstood or are deliberately trying to annoy me by making comments, while true, are not made in response to comments I have made.

Again, this is just treatment for your behaviour. My proposition is that you are incorrect on your original points and you have yet to provide backup to even get close to supporting your position.

Anymore errors you want to add? To use my time more efficiently, I will only point out new errors to you from now on.

Oh dear…please stop, this is far too pathetic 😂😂😂

Trading income = case I or for completeness in the case of a profession case ii. Rental income which qualifies for RAR = case v. That's not up for dispute by anyone at this stage.

https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.revenue.ie/en/tax-professionals/tdm/income-tax-capital-gains-tax-corporation-tax/part-04/04-08-01.pdf&ved=2ahUKEwiJs8_Vm_-IAxUrXUEAHUquAK8QFnoECDIQAQ&usg=AOvVaw22s51Tt6BIpn9M0ayT5AFQ

"You have resorted to a personal attack. I will always admit it when I am wrong. Show me one instance where I did not admit I was wrong"

Where is the admission you were wrong?

Sub-letting = licence, you stated earlier it was sharing possession 😳

"A tenant can't charge a licencee rent as to do so would be sub-letting"

Those are the words you used. That is a fact.

Nope it's case V, are you smoking crack today? 😂