Ok, long story short I was told recently that leases are breakable as long as the guidelines in the above act are followed, namely that a sufficient notice is provided. In other words, that a 12-month lease is only worth the paper it's printed on and a Landlord can unilaterally issue notice of x weeks within six months, y weeks within the year, etc, but that a tenant also has this power.
I've been reading through the text of the act, rather than the blurbs on citizensinformation or threshold etc and indeed can't find reference to the legal standing of a lease, other than that other clauses may be added to the lease where they are consistent with the act. Basically I was told that a 12-month, no notice accepted lease isn't consistent with the Act and thus invalid.
Just wondering on peoples thoughts here about it. Kind of confusing really.
Oh, and a copy of the act
The Act makes provision for both fixed term lease and part iv lease which is what you are refering too. A fixed term lease cannot be terminated but may be transfered.
duff123 has it there.
The terms in the 2004 Residential Tenancies Act- in the main, refer to Section 4 Tenancies (but also refer to a number of other types of tenancies- notably the pre-1991 tenancies which are addressed under a seperate act).
A lease- confers rights and obligations on both a tenant and landlord- which are in addition to any statutory rights or obligations they may have. It is a legally binding agreement- enforceable by either party by taking legal action against the other.
Of late there have been a number of precedents set regarding people wishing to vacate the terms of their lease early. While most of the precendents refer to commercial properties- they are equally applicable in a residential context.
At the end of the day- if you sign a lease- you should make bloody sure you read what you are legally signing yourself up to. Whether a landlord chases a tenant who breaks a lease- whether its worth his/her while- is another matter.
There are several residential cases before the courts at present- relating to students who signed up to annual leases, with the intention of staying 9 months- and buggering off. UCD has been dragged into one case- and it looks likely that parents/guardians are going to be obliged to cover for their offspring........
In short- if you sign a lease- you sign a legally binding document. Whether the landlord chooses to enforce it or not- depends on what they have to loose. 3 months rent for a house- could be well worth their while suing- particularly as costs would normally be awarded against the party in breach of the lease..........
This took a long to emerge: http://www.prtb.ie/DownloadDocs/Termina ... f%20FT.pdf
Basically it clears up a few things:
1. You do work your way onto a Part 4 tenancy while under a lease. So after 6 months of a fixed term lease you have the Part 4 tenancy, but only to the extent it benefits you. Should the lease expire and no new one be signed then you are a Part 4 tenant and the procedure for notice etc is as outlined.
2. Fixed Term tenancies don’t necessarily have to be in writing. Verbal or implied fixed terms can exist.
3. “A landlord can only terminate a fixed term tenancy where there the tenant has been in breach of his or her obligations.” i.e. They cannot terminate the fixed term lease because they want their daughter to move in, or because they want to sell.
4. “Similarly, a tenant can only terminate a fixed term tenancy where there the landlord has been in breach of his or her obligations. In addition however, where the landlord has refused consent to an assignment or sub-let, the tenant can also terminate the tenancy, in accordance with Section 186.”
As a tenant you are bound to the fixed term much like the landlord is. You must fulfil it yourself or else find someone else who will. “Section 58(3) of the Act provides that a landlord or tenant may not terminate a fixed term tenancy, unless there has been breach of obligations by the landlord or tenant.”
Further on: “a landlord of a fixed term tenancy cannot rely on the provisions of Section 34 (e.g. the landlord wants to sell his house) to terminate the fixed term tenancy and similarly a tenant of a fixed term tenancy cannot simply terminate that fixed term tenancy, by giving the requisite notice.”
5. LL and Tenant are free to agree terms more “beneficial” to the tenant in terms of security of tenure, but not less beneficial. So you can agree a lease of two years. You cannot agree on any lease that would whittle away your rights as a tenant under Part 4.
6. A tenant must serve notice of their intention to stay in the property ahead of a lease’s expiration. There is no mention of how this should be communicated, but I would recommend written notice (email may be ideal). “If a tenant wishes to remain in occupation after the fixed term, the tenant must notify the landlord of his or her intention. This must be done not later than one month before the expiry of the fixed term tenancy nor any sooner than three months before it expires.” Unless a new lease is signed you remain on under Part 4, with all the consequences that entails.
7. There is an interesting section relating to Break Clauses. It would appear that a break clause can be exercised by a tenant but not by a landlord, as the Part 4 rights (assuming the tenant has been in occupation for 6 months) offer security above the lease if needed. It’s a little confusing, but my reading of the passage is that a landlord cannot avail of the break clause because the tenant has security of tenure in accordance with Part 4.
It is not immediately apparent what happens if the LL wants to make use of the break clause on one of the grounds outlined in Section 34, but it seems to suggest the tenant can avail of their Part 4 rights while the landlord cannot make use of them until the tenancy has passed from its fixed term status.
Alright ladies and gents, thanks for the clarifications.
Doesn't immediately impact me (ie: I'm not looking to break a lease currently) but forewarned is forearmed etc.
The law is very confusing if you ask me. There is considerable legal uncertainty on some of these issues and little prospect of the uncertainty being clarified. (Who is going to go to the High Court over a residential tenancy?)
Well put, in my experience I found that some landlords demanded a lease in addition to PRTB to tie you into 6/12 month blocks after the initial 12 months. In practice after 2 years you have to give about 6 weeks notice anyway and this increases to . The longer leases do give the landlords the scope to claim against you for moving or at leat withhold deposits. In practice, try to avoid being pressurised to sign a fresh lease once you in a part 4 tenancy, it benefit the landlord rather than you insofar as unless there is a break clause, it removes your right to give 56 days notice and leave without penalty.
The intention of Part 4 is to give tenants additional rights, not sure if anything has been done to cover the situation where landlords effectively remove tenants right to give notice by use of leases.
You can't have it both ways though. If you want security of tenure then you want a lease. If you'd rather the flexibility of being allowed to leave at short notice then go Part 4. The conditions under which a LL can terminate a tenancy under Part 4 are far too generous. 42 or 56 days notice isn't a whole lot of comfort when you were planning on staying there for the next year or more.
The best set up for a tenant would be to have a Part 4 tenancy with a LL who has no intention of selling (or moving family in!). That can be hard to ascertain though.