Taken to Court over Termination of Lease

kifi

Having signed a one year lease on an apartment I decided to leave after nine months as was unhappy in the area. The landlord stated that I would be liable for the remaining 3 months of rent but we then came to a verbal agreement that I would be refunded my deposit and not be liable for the remaing rent if I found somebody to move in. After finding 3 interested parties I passed on the landlords contact details to them, as requested. ( 2 of these parties were foreigners, one an Irishman) I handed over the keys last May, expecting the deposit to follow soon. However last week I received a court summons for the outstanding rent plus interest.

The balance is 1600, which I cant afford. But i'm not sure I can afford a solicitor either.

Can anybody offer any advice please?

sharpsuit

The landlord cannot take you to court as landlord-tenant disputes are now covered by the PRTB. Section 182 precludes a landlord using a court other than the PRTB (in most circumstances).

As you have a summons, you should turn up to court on the scheduled day. You should tell the judge that he does not have jurisdiction to hear the case.

You could put in a case to the PRTB, challenging the landlord's decision to withhold the deposit. Under Section 186, a tenant can terminate a tenancy held under a fixed-term lease where he tries to assign the tenancy to someone else and that attempt is refused.

connundrum

What was in the lease that you singed? Most leases are signed for a year but have a notice period of 1 month from either party should the lease not be acceptable i.e. if the owner wants to sell, or you (the tenant) wishes to move.

Did you give notice?

For professional advice I'd say contact PRTB (www.prtb.ie) or Threshold (www.threshold.ie).

How Strange

OP, contact Threshold immediately.

Your landlord is wasting his money taking you to court over this but get professional advice from Threshold.

antoinolachtnai

Definitely one for threshold.

In principle, sharpsuit is absolutely right, but I would not like to have to go down to the District Court on my own as a layperson and tell the judge he doesn't have jurisdiction if I could avoid it. Obviously, you should not miss the court date under any circumstances.

You should also get in touch with PRTB immediately. Be sure to speak to someone. Tell them it is a matter of urgency and that it is due before the courts, and that you need to speak to someone in authority. Don't take 'no' for an answer. Ask them what they are going to do about what is going on.

mastermind2005

Post his name and address / phone number

kifi

Thanks for all replies. I gave one months notice by email and phonecall.

In the meantime I have contacted both the PRTB and Threshold.

PRTB; They found it very hard to believe that the this has gone straight to the courts and not through the arbitration procedures with them. They advised me to contact Threshold.

Threshold; Also have found it hard to believe why this ain't going through the PRTB. The lady said she will run it by their legal advisor and will come back to me tomorrow. On the negative she said that I have no way of proving that the we agreed with the landlord to find someone else and not be liable for the remaining rent. I never got this in writing unfortunately, lesson learned.

antoinolachtnai

I think that in the absence of you having access to other legal advice, that you should fax the summons to the PRTB and ask the PRTB in writing to respond to it or appear in court on the day. Tell them you want the issue dealt with before the PRTB, not before the District Court. Tell them that it is up to them to ensure that the correct legal forum is availed of, and that your defence is going to be prejudiced in the District Court because you cannot afford to engage a solicitor and you would not need one if this was being done properly. Ask them to write to you to clarify the situation in detail. If they say they won't appear, ask them to pay for a solicitor to represent you (good luck with this, but it never hurts to ask).

It is not really good enough for the PRTB to just hand you over to Threshold just because they haven't dealt with this before.

Whether you can prove the stuff about the landlord agreeing to whatever is not really all that relevant. If you stayed there 9 out of the 12 months and gave notice, it would be tough going to recover the money. This has to do with the intricacies of the Act. It's an obscure point, and it's arguable, but it does seem that after the 6th month, a tenant is probably entitled to leave with only statutory notice, regardless of the length of the lease.

Can you find out whether the landlord manage to get the house occupied after you left? If he did, he isn't really entitled to anything no matter what forum he goes to and regardless of the Act, 'cos he doesn't really have a loss. He can't really claim a penalty where he hasn't suffered a loss - this would be unfair.

If possible you should get legal advice on this.

kifi

antoinolachtnai, thanks for your advice. I have spoken to the estate agent involved and he said that people had moved in the end of September (end of the lease period).

I know that the lease would have been legally terminated if the landlord did not offer me the chance to sub-let. He did, but wasn't happy with the several parties that were very interested. Its quite convenient for him that somebody suitable moved in at the end of the my tenancy, allowing him the opportunity to do me for the rent in arrears to that period.

P.S. the estate agent tells me that the landlord is a solicitor

kifi

Sharpsuit, thanks for pointing this out;

Section 182 from the Act in question;
Section 182 prohibits the instituting of proceedings in a court in
respect of a dispute that may be referred to the Board for resolution
unless the amount claimed in respect of damages exceeds \20,000 or
in respect of arrears of rent and/or other charges exceeds \20,000 or
twice the annual rent, whichever is greater, but subject to an overall
maximum of \60,000.

So, is it just a case of me turning up in court, inform the judge of section 182 of the act and living to fight another day?

antoinolachtnai

It should be that simple, and it would be worth getting sharpsuit's view on this.

However, I would not like to go into court on this without legal representation though, or at the very least some sort of letter from the PRTB confirming that this dispute could have and should have been referred to the board for resolution in the first instance. The problem is one of being taken seriously in court.

Really, PRTB should write to this guy and put him straight, then appear in Court if necessary. This is their law, and they should sort it out if someone breaks it. You're just the little guy in all this (if you don't mind me saying.)

Solicitors always seem to be the worst (worse than barristers) for coming up with these litigation schemes. But there's really nothing you can do with these people other than folding or else loading in legal iron.

Victor

mastermind2005 wrote:

Post his name and address / phone number

This would get him and you banned.

sharpsuit

Getting a letter from the PRTB would be a great idea but would they be willing to provide it? I wonder if the solicitor is aware of the PRTB as it is not good practice to initiate proceedings in the wrong court.

Would it be best to contact the solicitor to ask why they are not using the PRTB. This is something the PRTB or Threshold should do.

kifi

I have sent a copy of the summons to threshold on their request. The lady said that they'll provide a solicitor/representative on the day, to point out that this should be arbitrated by the PRTB. This is in their interests as I suppose they would like to maintain the credibility of the PRTB and it's adjudication procedures. Threshold have indicated that they may try and contact the solicitor of the landlady prior to the court date to inform them that this should not be going to the district court.

Supposing that this is thrown out of the district court, I'm still left with the possibility of the landlady using the PRTB route. But, sure enough, I may initiate proceedings myself in order to have the deposit returned. - I wasn't too bothered about losing the deposit at first but now I feel I should do everything I can to claim it back.

Any thoughts?

Thanks

robd

kifi wrote:

I have sent a copy of the summons to threshold on their request. The lady said that they'll provide a solicitor/representative on the day, to point out that this should be arbitrated by the PRTB. This is in their interests as I suppose they would like to maintain the credibility of the PRTB and it's adjudication procedures. Threshold have indicated that they may try and contact the solicitor of the landlady prior to the court date to inform them that this should not be going to the district court.

Supposing that this is thrown out of the district court, I'm still left with the possibility of the landlady using the PRTB route. But, sure enough, I may initiate proceedings myself in order to have the deposit returned. - I wasn't too bothered about losing the deposit at first but now I feel I should do everything I can to claim it back.

Any thoughts?

Thanks

Standard legal procedure and positioning is to fight the law with the law. You should most definitely file a proceeding with the PRTB to have your deposit returned to you. You should do this today, well before it gets to court and well before the landlord has the opportunity to file his/her complaint.

If recent postings are anything to go with. This can take 6 months to a year. It would be good if you could keep the thread up to date with proceedings as this will stand to others who find themselves in this position.

kifi

Threshold contacted me again today to say they had rang the landlady's solicitor. Threshold informed them that they should not be taking this to the District Court but should use the PRTB process instead. The response was that they will go ahead with the court saying that they consider it as an debt outstanding.

I talked to the lady in Threshold regarding the case in general, asking her what were my chances l, through the PRTB or not. She said that they could have me on the way in which I provided the landlady with notice. She said that I should have given it in writing at least 35 days prior to leaving - I phoned and the following day (April 30th), wrote an email giving my notice. I left on the 30th May.

Is the PRTB adjudication held in the courts, chaired by a judge and are solicitor's present? The lady from threshold sounded a little bit negative about my case. I got the impression from her that I may be liable for the 1600. I really now feel I should actually be refunded my 800 euro deposit and not be liable for the rent! This is getting quite stressful.

gibo_ie

Check to see if your ex-landlord is and was at the time registered with the PRTB and therefore legally declaring his income. If he is he is bound by the act of 35 days notice without withholding your deposit.

On the other hand, if you signed a lease with this condition in it that you would stay a year and have nothing in writing to say this was changed then i would see that you are liable. I had tenants in this situation before the formation of PRTB and i got my money for the full term from court. Not a nice thing but then again they shouldnt sign up for something they cant stick to.

But good luck as i think you are in the right here as PTRB has changed a lot of things.

Victor

kifi wrote:

Is the PRTB adjudication held in the courts, chaired by a judge and are solicitor's present?

I get the impression it is a lay adjudicator, you can bring a ssolicitor and they aren't to my knowledge held in courts - more likely to be a hotel meeting room.

antoinolachtnai

I don't see much wrong with your case. The notice isn't great, but it's not that bad. She did seem to have accepted your notice, at least by your account. I think he should still get a judgement against you at prtb. You are disputing the debt, and the court has no authority to rule on whether it is valid.

I'd get a solicitor.

One idea would be to make a complaint to PRTB yourself about your deposit. This would (I think) put the whole dispute back into the domain of the PRTB. But you should get legal advice about this.

You should also press the PRTB on this. Also, get a meeting with threshold in person if you really can't afford a solicitor. Talk to their legal adviser in person.

kifi

Threshold rang today and said that they now cannot provide anyone to represent me due to District Court rules prohibiting them from doing so. They recommended that I get a solicitor to represent me. Or else I suppose I can try to represent myself. Was talking to my boss in work about this- he too is a landlord- He was very helpful and said that I should have no problem getting this out of the District court and encouraged me to lodge my own complaint for the deposit to be refunded.

Our man in Havana

If the judge has any ounce of intelligence he will soon see it is not a matter for the DC and he should strike out the summons without you having to speak. If he doesn't state your case and it will be dismissed.

antoinolachtnai

My concern with bond-007's advice is that the other side's solicitor appears to have succeeded in convincing Threshold that the DC might be the right place for this case, and unless you are well represented (or at least represented) they are likely to do the same when it comes to the judge.

I would be interested to know what rule Threshold believes prohibits them from paying for your solicitor. This isn't maintenance and champerty. This is a taxpayer-sponsored organization and the case you are involved in seems to involve a significant matter of public policy. The cost of defending it would be relatively low.

Ask Threshold whether they will they be your McKenzie friend in court if they feel they cannot provide a solicitor. (See http://www.spig.clara.net/misc/mck.htm). I doubt they will, but it is good to ask anyway.

I think that Threshold have just bottled out because your case is less than perfect. This is terrible. It appears to me that they raised an expectation that they would support you. If you hadn't expected them to support you in court, you wouldn't have given your permission to them to contact your landlord. If they bottle out like this, they are just a useless bunch of talkers.

Granted, we have only heard your side of the story and maybe threshold has another. Still, there does appear to be an important issue of public policy here.

Try to avoid representing yourself. People who represent themselves (generally) turn out to have fools for clients.

You could also try the Free Legal Aid Centre. http://www.flac.ie/ . Wouldn't hold out much hope for this though.

antoinolachtnai

I've sent a message to threshold about this issue.

Dear Threshold,

I refer to the discussion below.

http://www.boards.ie/vbulletin/showthread.php?t=2055158728

If the facts are as the poster states them, Threshold has done very badly indeed by this person. It has also neglected to take simple steps to defend a core tenet of legislation.

If this person has to go ahead with this litigation without the support he or she needs and appears to have been promised, I would be very disappointed.

I would write to the Minister for the Environment and the Minister for Finance and ask them to review the file involved. I would ask them to consider future funding for Threshold. There is little point in funding threshold if it cannot find a way of providing support to those most in need.

Again, I hope Threshold can find a way to provide support to this person.

kifi

On Threshold's recommendation I made contact with a solicitor last week. Unfortunately, a slight bit of disorganisation on my part led to me sending copies of the lease agreement and court summons to the solicitor on Friday. I was aware that the Notice of Intention to defend must be with the courts 4 days prior to the hearing. I highlighted the urgency of the matter to the legal secretary on Friday. Today, a.m., I tried to ring my solicitor to get his view on the matter. He didn't return my call until 5:30pm, stating that the Notice of Intention to Defend should have been submitted within 10 days of me receiving the summons, ie at least 2 weeks ago. However, it was clearly stated on the summons that this notice must be with the courts 4 days prior to the hearing. I said this to him and replied that he didnt have that page and whether or not I faxed the complete document. After reading out the relevant section of the summons to him, he said in that case, it would be too late to submit the intention to defend tomorrow and today would have been the latest. If he had returned my call earlier in the day, the Notice could have been submitted on time! I acknowledge that I was cutting it fine, but I was setback by the Threshold rep pulling out due to a District Court Rule that he wouldn't be entitled to audience. While talking to my solicitor today, I got a clear impression that he wasn't all that interested in representing me. It was almost as if he wasn't on my side, while he went on to list all the arguments as to why I may loose. ( he mentioned some sort of land act of 1695???). Added to this, he was quite dismissive of my points and also quite unpleasant in general. Maybe he considers this a "Mickey Mouse" case that will not earn him the big bucks for his efforts.
He concluded saying that he will contact the district court office tomorrow and the plantiff's solicitor to see if they have any objection to a late Notice of Intention to Defend being submitted by me.

I feel I am partly to blame for not getting in contact with him sooner but it is obvious how he has prioritised my case by calling me at 5.30 this evening.
Now looks like I'll be liable for the rent + the interest they are claiming + the landlady's solicitor fees + my own solicitor's fees = big bucks (at least for me!).

I will keep you all informed, thanks for your efforts

Victor

kifi wrote: »

( he mentioned some sort of land act of 1695???).

Statute of Frauds - any transaction for the sale of land must have a written memorandum listing the parties, the amount and the site.

kifi

Victor wrote: »

Statute of Frauds - any transaction for the sale of land must have a written memorandum listing the parties, the amount and the site.

"Sale of land" , this is not Sale of Land so how can one interpret this to mean otherwise.

Is this just the manner in which the legal system works... one can make arguments and justifications from any statement in order to suit their own case?

antoinolachtnai

It is a transaction involving property, a sale or lease, whatever. When you get caught up in all this old law, you are headed for trouble.

You aren't necessarily going to the District Court to dispute the charges. You are going to dispute whether the District Court is the appropriate forum for the case.

You might also also consider filing a counterclaim with the PRTB. That would seem to me to be your strongest way of going forward. But obviously that is just my opinion, and I am not your lawyer, you have to consider the legal advice you are given.

dubtom

I understood that the only way a landlord could take a tenant to court, be it eviction or anything else was through the PRTB. If this landlord is sucessfull surely it calls into question the whole area of why it was founded in the first place. My brotherinlaw spent €8000 on fee's to register all his tenants, which he believed he was legally obliged to do. He also believed,obviously wrongly it seems now,that he couldn't act against a tenant without the prtb's intervention.Was the prtb purley set up as another revenue collection agency,seeing as a landlord can't get a tax clearance cert without registering with them and paying hefty fee's.Or if a landlord doesn't bother registering his tenant is he free to pursue them in court with the full backing of the courts.
It all seems rather irish to me.

Our man in Havana

The notice to defend can be be given on the morning of the court verbally by consent of the judge and the plaintiff. If the notice is accepted the matter will be adjourned to another date for a full hearing.

How Strange

I can't believe a landlord is allowed to bully a tenant like this and drag them through the courts just because he/she has a legal background.

OP, have you been to the PRTB? I don't have much faith in their resources but they are the body set up to deal with issues like this so surely your landlord is acting outside his/her capacity as landlord by bypassing them and taking an action against you in court.

I find it incredible that a landlord can do this and you, as a tenant, are completely helpless and must go to the expense of legal representation for something that could be sorted out in mediation with the PRTB.

kifi

Today I contacted the District Court Office for myself re the Notice of Intention to Defend being submitted late (even though, technically I am not defending my case here rather objecting to the legal forum). Anyway, the lady I spoke to said that if it is submitted today then that should be no problem. I then rang my solicitor who by then had also rang the courts and concurred with what I had said. (Despite him telling me that the Notice had to be in yesterday, the lady in the courts office said today would be the deadline).

Also, my solicitor went on to say that for whatever reason the case will not be heard on Friday but set for a later date. I reminded him that we don't actually agree to the legal forum I that this should be made known to the judge on Friday. He said that he's not too confident that the judge will listen as he will be just concerned with setting another date for the hearing.

On another note I am in the process of filing a complaint to the PRTB for the return of my deposit. This is on the basis that I fulfilled my part of our agreement by providing a choice of potential tenants. In essence, I consider this as the landlady blocking a re-assignment of the lease. As pointed out in a previous post by Sharpsuit , this enacts section 186 of the Act

antoinolachtnai

Now you are getting into the swing of it. Be sure to keep a copy and file the complaint as quick as you can, and if you have to post it, use registered mail and keep the registration. Have all this stuff ready in Court.

Our man in Havana

The setting of a future date is always done when a notice of intention to defend is lodged. You may have to wait until the actual trial date to get the jurisdiction problems addressed.

kifi

When my case was called my solicitor stated section 182 of the Act re jurisdiction. The landlady's solicitor then countered with section 76 of the Act;

In the case of a tenancy that has been terminated a dispute as
to the amount of any rent that had been agreed to or paid by the
former tenant may not be referred by him or her to the Board for
resolution at any time after the period of 28 days from the termination
of the tenancy.

My solicitor then said that if the complaint hadn't been lodged witht the PRTB within 28 days then tough!! The judge then examined section 182 of the Act (she wasn't very familiar with this Act at all by the way )

182 (part of);
proceedings
may not be instituted in any court in respect of a dispute that may
be referred to the Board for resolution under that Part.

She highlighted the word "may" (or something like this, is was very difficult to hear her) and set a hearing date in the court for this matter.

I'm very disappointed with this decision to say the least.

Afuera

Thanks for keeping us posted on your case kifi. Sounds like a crazy ruling though that after 28 days from the termination of the tenancy, since the landlady can not now take a case with the PRTB, that they would be allowed to take the case directly to court. I hope that it's not that easy for landlords to circumnavigate the PRTB or it really could make it very hard for tenants to defend themselves. Best of luck with the upcoming court case.

Our man in Havana

A bizzare ruling to say the least. So now the PRTB is esstentially worthless if the landlord simply waits 28 days and goes to court. I would say that this decision would be easily reversed in the circuit court.

Best of luck with the full hearing. When was the date set for?

Supercell

kifi, thanks for keeping us up to date here.

Have to admit every time I read this thread I get a little mad, its just totally typical that the little person is being totally screwed in Ireland, the rich land owners totally have all the rights on their side.
Basically it seems with enough money on the landlords side the PRTB are toothless and spineless, and yet another sign of us getting the muppets in power we deserve.
People say how did America manage to vote Bush in twice in a row..well, we did the equivalent here three times in a row!!

I'm totally disgusted with the whole thing, all I can say is I wish you the best of luck.

A Random Walk

I'm very interested in the outcome of this. How are you paying for your solicitor Kifi?

robo

Kifi - just want to wish you the best of luck and please keep us informed of how it goes. Take care!

antoinolachtnai

I got the following feedback when I posted a link to this on the irishlaw list.

Antoin,

I'm replying to this post directly to you rather than through Boards.ie as I'm not registered there as a subscriber.

However as an accredited Adjudicator, Mediator and Tribunal Member with the PRTB, this case strikes me as demanding further and special attention. It seems to me that the District Court Judge in question completely lacks jurisdiction in the matter, no matter how he/she chooses to play with the word "may" in interpreting the legislation. Assuredly, the landlord is precluded from initiating an action in the District Court without first applying to PRTB for dispute resolution. Of course, for the landlord to do this, the property must be registered with the Board, which it may not be (which in itself, is an offence, amenable to substantial penalty) The tenant can or should have simply made an application to PRTB for dispute resolution at a cost of just €25.00 and once that is done, the landlord is not permitted to take further steps in any other forum - and in any event, as has been pointed out, the PRTB is the body set up by statute to deal with such matters.

This may be merely a matter of poor communication, as Threshold are highly aware of procedures, and the PRTB can only begin to deal with a dispute when an application is received.

I'm copying this email to the appropriate person in PRTB and I suggest that the original querist ("Kifi") should contact the Board for further advice. Legal representation at hearings under the aegis of the Board while always useful and often desirable, are by no means essential.

In making these suggestions I am of course merely pointing out to Querist the appropriate procedure to follow in certain circumstances, as I would to the landlord if the position were reversed, I am not offering an opinion or (I hope) displaying any bias, perceived or otherwise.

Perhaps if might be useful to repost this to the Boards.ie thread.


Regards,


LIAM M. NOLAN

How Strange

Kifi...PRTB; They found it very hard to believe that the this has gone straight to the courts and not through the arbitration procedures with them. They advised me to contact Threshold.

Threshold; Also have found it hard to believe why this ain't going through the PRTB. The lady said she will run it by their legal advisor and will come back to me tomorrow. On the negative she said that I have no way of proving that the we agreed with the landlord to find someone else and not be liable for the remaining rent. I never got this in writing unfortunately, lesson learned.

It seems to me that Treshold and the PRTB dropped the ball on this one as Kifi says in the quote above that he contacted both agencies. Hopefully now the situation will be sorted out ands someone will represent Kifi as it is bizarre and dangerous that a landlord with a bit of legal knowledge can bully a tenant into court.

Our man in Havana

Kifi, Can you ask your solicitor about trying to get the matter taken out of the district court? I am sure a higher court would affirm the opinion that the district courts have no jurisdiction. I feel that the district court should have referred the case to the high court on a point of law, i.e. does the District court have the jurisdiction to hear the case?

kifi

Section 76 of the Act;
In the case of a tenancy that has been terminated a dispute as
to the amount of any rent that had been agreed to or paid by the
former tenant may not be referred by him or her to the Board for
resolution at any time after the period of 28 days from the termination
of the tenancy.

On looking at this more carefully, I see this as the tenant being the only party restricted to submitting a claim within 28 days to the board. Does it seem like the landlord can still submit a claim to PRTB, regardless of the timeframe or am I interpreting this incorrectly?

Hmm, maybe the judge last Friday was a landlady herself (albeit an ill-informed one)!! It's interesting that, and maybe I have mentioned this is previous posts, the estate agent had informed me on several occasions that the landlady herself was a solicitor.

antoinolachtnai

Yes, that's what it looks like to me. But obviously this is something you'll have to take legal advice upon and it's the opinion of a court that matters, not my opinion or your opinion. And the question is whether you can appeal just this point without a hearing of the whole thing.

[edited out as it may cause issues]

gandalf

The OP has asked me to close this thread which I will do for the moment.