Tenant issue - adverse possession advice.

10-10-20

Guys, I'd appreciate any advice on this matter - I have searched both the PRTB site & boards, but cannot find answers.

We rented a apartment to two guys and got signed contracts from both.
Then in July one guy moved out so we tasked the other to find a replacement, which he did, and got two additional guys in (brothers).
We neglected to get contracts for the two new tenants (with holidays and such) and we have since decided that we want to renovate the property, so we informed the tenants verbally of this in early September.
Since that date, the original tenant has moved out, but the two brothers remain.
Now, they claim to have rights to stay and only pay half of the rent (using one room) and are demanding that we find replacement tenants to make up the shortfall of rent. These guys are now in adverse possession of the property & without a contract with us.

OK, so, we made mistakes in dealing with this - we failed to obtain contracts from the new tenants. We also failed to notify the tenants in writing of our intentions to terminate their stay.

So, my questions are:
We cannot afford to come up short on rent, we need him to pay the complete rent. Am I correct in expecting him to pay this in full (again, no contract)?
As he's there less than 6 months, we will send in a letter to him tonight giving him 28 days notice - but as he's in adverse possession, do we even need to do this?

The_Conductor

I'm open to correction on this, but as far as I know, you need exclusive use of a property for a period exceeding 10 years, without paying rent, in order to claim adverse possession. Just because they claim to be in adverse possession of your property does not mean that they are- do not assume that it does.

Regardless of the existence or lack thereof of a formal contract- the tenancy is governed by the 2004 Residential Tenancies Act (a contract may impart additional rights to the tenant, but the core legislation is the 2004 Act). The act specifies the manner for giving official notice to a tenant, and post the official notice, for initiating eviction proceedings.

Unless you have formally notified the current occupants, in writing, of their notice to quit, in a manner prescribed in the legislation, regardless of what has happened verbally, you have not served notice to quit on them.

These two sound like they are out to cause trouble- I would seriously advise that you follow the letter of the law- and do everything precisely as you are supposed to.

I've a colleague who is 3 months down without rent on his house in Stillorgan (meanwhile he is renting seperately himself in Portlaoise)- and the tenants have made a complaint about him to the PRTB to try to frustrate his efforts to evict them- and then we are all familiar with the woman on RTE, 2 weeks ago who was awarded 12k for being illegally evicted, despite not paying her rent for over 8 months..........

Be careful, be very careful......

10-10-20

SMCarrick,

Thanks very much for the pointers.
I know I read posts from you in the past relating to similar issues, but I was at a loss to find the information when I needed it!

Anyhow - we are going to do the needy and send him an official Notification of Termination as per the guidance on the PRTB website... Here's my own draft.

I hereby notify you that as per section 66 of the Residential Tenancies Act 2004, we intend on terminating the residency at <address> as of the date of Wednesday the 19th of November 2008.

This date provides the statuary notice required for tenancies less than 6 months.

During this time, the standard agreed rent for occupancy of the complete apartment of <rent> will be required.

Any issue which may arise as to the validity of this notice, or the rights of the landlord to serve it, must be referred to the Private Residential Tenancies Board within 28 days from the receipt of this notice.

That will start the official ball rolling, per-say.
He claims to having seen a solicitor about this matter - I call his bluff.
I'll let you know how it goes.

Mr. Incognito

For adverse possession you need 13 years of uninterruped possession without paying any rent. 6 months? 28 days written notice is sufficient.

It's not your responsibility to find tenants. As you have no contract at all and they are not paying any rent- in my mind they are akin to squatters.

subway

make sure to send the letter via registered post etc

robd

Prob best to do as you've outlined and renovation is a valid reason to terminate a lease.

However, if push comes to shove and you wanted to be aggressive (seeing that these two seem to be playing that game), it may even be possible to categorize the two of them as renting a room off the original tenant. They would therefore not be covered by the tenancy act and you would be within you rights to simply move them out by entering the premises with a couple of heavies and demanding that they leave. You'd need the tenant who has moved out to go along with this with you and probably need to give him a backdated notice of termination. Seek legal advice on this.

Jo King

10-10-20 wrote: »

SMCarrick,

Thanks very much for the pointers.
I know I read posts from you in the past relating to similar issues, but I was at a loss to find the information when I needed it!

Anyhow - we are going to do the needy and send him an official Notification of Termination as per the guidance on the PRTB website... Here's my own draft.





That will start the official ball rolling, per-say.
He claims to having seen a solicitor about this matter - I call his bluff.
I'll let you know how it goes.

To do it properly you should issue a 14 day rent arrears notice first. I would be inclined to tell them you have someone for the empty room. Move in yourself. When they are both out change the locks. When they come back ask them where they want their belongings delivered.

You agreed to rent them a room in July and presumably agreed a price.

Do you not think they would be a bit annoyed about having to move so quickly through no fault of their own and to then be told they have to pay double even though they you agreed a price?

Give the formal notice and take the hit of no rent on the empty room, you have no-one to blame other than yourself.

The_Conductor

Deleted User wrote: »

You agreed to rent them a room in July and presumably agreed a price.

Do you not think they would be a bit annoyed about having to move so quickly through no fault of their own and to then be told they have to pay double even though they you agreed a price?

Give the formal notice and take the hit of no rent on the empty room, you have no-one to blame other than yourself.

My understanding was that the house was rented to a group of friends. Some of the friends, whose name was on the lease, subsequently decided to move, and the remainder found an additional two tenants who the landlord was amenable to staying there.

Those remainder of the original tenants then chose to move themselves.

The two people now there are not original tenants, do not recognise the validity of the original lease that the *house* was let under, and are now stating 1. that they only have to pay rent on a per room basis, and 2. that they are in adverse possession of the entire property.

In circumstances like this the landlord has now option but to follow legal methods of evicting them at the first opportunity.

At the first mention of adverse possession- it is the landlords first duty to his investment to secure that investment- which means they have to go. Why should the landlord fund a lavish lifestyle for a pair of brothers who have gotten it into their heads that the landlord is fair game? The landlord presumably has large outgoings which have to be met- and if they aren't would be at risk of having the property (and possibly other property too) repossessed.

S.

Ste.phen

Agreed, get rid of them ASAP.
I live in a similar situation, where some people are on the formal lease, and others took over from the original tenants, but we're all very much aware that we're joint and severally liable for the rent if someone were to die/leave/etc.
Sounds like the guys are taking the piss, begone with them.

10-10-20

Right - an update.

I handed in a notice of termination, told them to cough up for the last month's rent & have all the utility bills paid up and be out within 28 days.

One of them started on about having a law degree (in France) and such, but I told him where to go.

They'll be out by the 30th of this month!

What I didn't say previously was that the other brother was unemployed and just sat around drinking beer and smoking blow all day.

antoinolachtnai

I helped a friend with one of these about a year ago.

My own view is that the new parties are licensees of the tenant and their right to be in the property ended when the tenant left.

Of course, this is just a view based on something I was involved in. If you need legal advice, you should contact a solicitor.

My friend's one ended up a bit like yours. They eventually did leave when they could see it all got serious. When the original tenant realised that they could also be involved and liable if the whole thing blew up, then they appear to have 'encouraged' the new person to get out.

Just for reference, here's the letter she served on them.

Antoin.


[Date]

To: [Name]

Re: [Address]

Private and Confidential

Dear []

You have been living in my house under licence from the previous tenant since [less than 6 months ago]. I understand from the tenant that you have not paid the rent due under the licence. As a result of this, my tenant and I have been left out of pocket. I would remind you that this money remains due, and the tenant and myself still expect to receive payment.

The tenant left the property on Friday. However, you have since returned to the house, and the arrangement is irregular since you are not a tenant, and have no licence to be there.

I have discussed this matter with you and have sent text messages to you regarding it since February. You must be aware that I do not wish you to remain in my house as a licensee or otherwise. I do not wish to cause hardship and appreciate that you have to make alternative living arrangements. I am therefore happy to give you seven days notice from today to vacate on the basis that you pay rent for that period in advance. Please vacate by 6pm on [seven days from day of serving]. Please furnish your keys to me by that date.

Rent is due directly to me for the period between the tenant vacating and the end of the 7 day period. Based on the previous rent, this is [calculate what ten days rent is]. Please contact me to arrange to pay me the rent by 12 midday tomorrow or if you would like to discuss an alternative arrangement.

My son and I plan to live in the house during some or all of that period and beyond. I plan to carry out structural renovations of a substantial nature, including the reinstatement of windows and changes to the bathroom.

As long as you are living in my home I require that common areas are kept clean and tidy and that your personal possessions be stored in your room. For the avoidance of doubt, your room is [front room on the left as you go up the stairs or whatever]. You may use the kitchen to cook and you may watch television in the living room. You may use the bathroom to wash. Please do not bring any guests to my house. Please do not make any noise after 9pm.

I understand from discussions with Threshold and [Institution] that they believe you to be my tenant. I do not accept that to be the case and you have produced no evidence so far to back up this claim. If you truly believe yourself to be my tenant please furnish the evidence to me immediately.

The previous paragraph notwithstanding, I hereby give you notice in respect of any tenancy rights you may have, that any tenancy you have which relates to me will be terminated on 1 May 2007.

In the case that you have any rights as my tenant, you have until 1 May 2007 to vacate the property. If you are a tenant, you have the whole 24 hours to vacate possession. (However, please note that my understanding at this moment is that you are a licensee and I plan to deal with you as a licensee with 7 days to leave, until evidence to the contrary is produced to me and accepted by me.)

Any issue as to the validity of the notice or the right of the landlord to serve it must be referred to the Private Residential Tenancies Board within 28 days from the receipt of the notice, under Part 6 of the Residential Tenancies Act 2004. However, whatever determination the Private Residential Tenancies Board comes to will only be valid and relevant if you are a tenant (which I dispute).

The previous two paragraphs are for the purposes of complying with section 62 of the Residential Tenancies Act. For the avoidance of doubt, I do not accept that you are my tenant in my property or that you have any rights as a tenant.

Please contact me immediately by telephone [give number] to arrange payment of the rent or if you have any questions about the content of this letter. We can arrange a time to meet in the house to discuss these matters. Alternatively, if you wish to make a written response, please leave a copy at the property and direct a copy to [give correspondence address] to ensure my prompt attention.

I hope we can bring this tense matter to an amicable conclusion and I wish you well with your search for alternative accommodation.

10-10-20

10-10-20 wrote: »

We rented a apartment to two guys and got signed contracts from both.

Contracts - it sounds to me like individual rooms were rented out, not the whole apartment.

You want them out and have a valid reason, grand. Just don't expect them to be happy and to cough up double the rent.

To avoid this in the future - sign a contract before they move in - even if it interrupts your holidays.

For the record I have no law background, French or Irish, am not a property owner, and pay approximately 9.5% of my after tax income on rent and live a 15 minute walk from work and 15 minutes from the centre of town.

useruser

antoinolachtnai wrote: »

My own view is that the new parties are licensees of the tenant and their right to be in the property ended when the tenant left.

This is an interesting point, did you get a solicitor's view on this? It seems to me that the PRTB places an onus on the landlord to register all occupants of their property, which implies that they are considered tenants of the landlord regardless of whether they have an arrangement with another tenant.

The_Conductor

useruser wrote: »

This is an interesting point, did you get a solicitor's view on this? It seems to me that the PRTB places an onus on the landlord to register all occupants of their property, which implies that they are considered tenants of the landlord regardless of whether they have an arrangement with another tenant.

Not entirely true- the legislation clearly provides subletting provisions. I am not aware that there is any legal precedent- but it would be interesting to test it nonetheless......

useruser

smccarrick wrote: »

Not entirely true- the legislation clearly provides subletting provisions. I am not aware that there is any legal precedent- but it would be interesting to test it nonetheless......

You are correct, a tenant must notify the landlord of any such licensee, if they don't then it seems the licensee has no right to continue occupation. One interesting point is that the licensee can request the landlord to become a tenant which cannot be refused under normal circumstances:

"During the existence of a Part 4 tenancy any lawful licensee of the tenant/s may request the landlord to be allowed to become a tenant of the tenancy. The landlord may not unreasonably refuse such a request and must give his/her acceptance in writing. All the rights, restrictions and obligations
of a tenant will then apply to the former licensee except that the protection of the Part 4 tenancy will not apply until the former licensee has completed 6 months of continuous occupation counting time spent as a licensee and as a tenant. "

It would seem that a licensee that has not been registered has no protection whatsoever? Is this correct? I imagine there could be a lot of people in this position.

antoinolachtnai

Well, if the tenants don't want you as a co-tenant, then it would seem reasonable to refuse them. You can't use this to impose a tenant on the other tenants.

antoinolachtnai

I didn't get a solicitor's view on this. What's the point? There is no clarity in the Act on what might actually happen in Tribunal. The important thing in the circumstances was not to concede anything.

useruser

antoinolachtnai wrote: »

Well, if the tenants don't want you as a co-tenant, then it would seem reasonable to refuse them. You can't use this to impose a tenant on the other tenants.

Sure, I was just interested to learn that someone could quite easily find themselves in the position that they don't have any tenants' rights whatsoever.

Imagine this case: A tenant, Bill, rents a 2 bed flat on his own, he later decides to take in Bob to help pay the rent and OK's this with the landlord. Bob is a licensee with very much reduced security of tenure already but imagine if Bill leaves and Bob replaces him with Caroline - both tenants could be legally turfed out with no notice even if they have been in residence for years. There must be many possible variations on this theme - I guess the lesson is to be careful that your tenancy is properly registered.

dats_right

antoinolachtnai wrote: »

I didn't get a solicitor's view on this. What's the point?

There really has been some horrendous advice offered to the OP by several posters, seemingly based on nothing more than 'I had this mate who...', or 'somebody told me that...', or some other equally unreliable source. OP, your dispute with your tenants is potentially very serious and you should immediately seek the advice of your solicitor, it could save you an awful lot of money in the long run.

The Residential Tenanices Act 2004 is a minefield for the unwary. Unfortunately, landlords usually only come to a solicitor when they have already DIY'ed it sufficiently badly that all the solicitor can do is try to mitigate the damage rather than avoid it completely. There is still a chance that you may be able to avoid this sitaution from going to the PRTB, but you need advice from a professional and not to rely on any responses you recieved from well-meaning but uninformed posters.