PRTB question

duploelabs

I'm a landlord of a house and my tenant is looking for a reduction in the rent and is claiming that the PRTB can dictate the level of rent paid. Is this true?

Mr. Presentable

No

duploelabs

But this is on the landlord.ie site

"What disputes will the PRTB deal with?
These are some examples of the issues the PRTB will deal with but other matters may also be dealt with:
· Refund or retention of deposits
· Breaches of tenancy obligations (by either landlords or tenants)
· The charging of rents above market rent
· Timing of rent reviews
· Failure to follow the correct procedure to terminate a tenancy
· Invalid reason for terminating a tenancy
· Termination notices
· Tenants and sub-tenants remaining in occupation despite receiving a valid termination notice
· Claims for costs and damages from either the landlord or the tenant arising from failures by either party to comply with their obligations
· Claims for costs or damages or both by a landlord or tenant claiming improper termination of a tenancy
· Failure to comply with a determination order made by the PRTB
· Penalisation of tenants by landlords, e.g. for referring a dispute to the PRTB
· Claims for rent arrears or other charges
"
His lease is up at the end of the month, I could just tell him that I won't be renewing the lease

sophia25

If he is in your property for over 6 months and you haven't given him a valid Notice of Termination, he has already acquired Part 4 Tenancy rights and security of tenure for 4 years from the original start of his tenancy. He doesn't need a new lease from you and would be mad to sign one. However, there is an annual statutory right for a rent review. As the landlord, you can decide the rent and notify your tenant and also advise him that if he is not happy with the rent review, he has the right to refer the matter to the PRTB within 28 Days. If the case goes ahead you will both have to present your case as to whether the new rent is fair market rent. If the rent you propose now (which could be the rent already in place) is similar to rents for similar properties in your area, there is no issue. If the the tenant can prove that you are charging more, then PRTB could rule against you. Mitigation is taken into account and if your property is of a standard considerably higher/lower than similar properties this will also be taken into account. From your own pov though, if your tenant moved out and you were without month for a rent, would it be more economical to lower rent slightly? If you think you are charging fair rent and he is chancing his arm, just advice him of annual rent review and his option to bring it to PRTB within 28 Days, you would have nothing to worry about.

duploelabs

sophia25 wrote: »

If he is in your property for over 6 months and you haven't given him a valid Notice of Termination, he has already acquired Part 4 Tenancy rights and security of tenure for 4 years from the original start of his tenancy. He doesn't need a new lease from you and would be mad to sign one. However, there is an annual statutory right for a rent review. As the landlord, you can decide the rent and notify your tenant and also advise him that if he is not happy with the rent review, he has the right to refer the matter to the PRTB within 28 Days. If the case goes ahead you will both have to present your case as to whether the new rent is fair market rent. If the rent you propose now (which could be the rent already in place) is similar to rents for similar properties in your area, there is no issue. If the the tenant can prove that you are charging more, then PRTB could rule against you. Mitigation is taken into account and if your property is of a standard considerably higher/lower than similar properties this will also be taken into account. From your own pov though, if your tenant moved out and you were without month for a rent, would it be more economical to lower rent slightly? If you think you are charging fair rent and he is chancing his arm, just advice him of annual rent review and his option to bring it to PRTB within 28 Days, you would have nothing to worry about.

Well I reduced the rent 6 months ago by 15% and he's looking for another 10%. He's been nothing but trouble since he took up residency, so for the sake of maybe a months rent I think I'd prefer to be shot of him

sophia25

Well you can't give him notice as he is now a Part 4 tenant so it will be up to him if he decides to give you notice to leave. On a positive note though as you have already reviewed the rent 6 months ago, he is not due a rent review now and this will be thrown out by the PRTB. On the basis you have already given a rent reduction, I would just tell him there will be no reduction and to take it or leave it and that as he has already received a rent review less than a year that he has no recourse to PRTB.

duploelabs

Well i do have a term in the lease that states that if the occupancy lasts longer that a year then the notice to quit is 28 days for either party

D3PO

sophia25 wrote: »

Well you can't give him notice as he is now a Part 4 tenant so it will be up to him if he decides to give you notice to leave. .

what sort of bullsh*t is this. You can give notice to a part 4 tennant based on tenure will determine notice period required.

seriously where do people come up with this crap.

duploelabs

Can you explain a "part 4 tenant"?

sophia25

D3PO wrote: »

what sort of bullsh*t is this. You can give notice to a part 4 tennant based on tenure will determine notice period required.

seriously where do people come up with this crap.

You can only give NOT as a landlord (if the tenant is not in breach) for 5 very specific reasons as per section 34 of RTA 2004 and even at that if the property becomes available for reletting within 6 months, the tenant must get first refusal. These are the facts and if you are a landlord, you should become aware of them.Too many landlords don't seem to understand that the main purpose of the RTA 2004 was to provide security of tenure for tenants. Here's the relevant part of the Act, so while you may not like what I'm saying it is certainly not "crap".

http://www.irishstatutebook.ie/2004/en/act/pub/0027/print.html#sec34

sophia25

duploelabs wrote: »

Well i do have a term in the lease that states that if the occupancy lasts longer that a year then the notice to quit is 28 days for either party

Duploe statutory law always trumps contract law so your clause means nothing. It does not take away your tenant's statutory rights.

A Part 4 tenant is a legal entity established in the Residential Tenancy Act 2004 under Part 4 of the Act. It's purpose is to give greater security of tenure to tenants. Once a tenant has occupied a property for 6 months or longer, without receiving a valid notice of termination, they automatically acquire the right. If a landlord signs a lease for 12 months, they are in fact really giving the tenant the option to stay on for 4 years.

Victor

duploelabs wrote: »

Can you explain a "part 4 tenant"?

Under the Residential Tenancies Act, if the lease expires, but the arrangement continues, the lease becomes a Part 4 lease, named after Part 4 of the Act. http://www.irishstatutebook.ie/2004/en/act/pub/0027/index.html

D3PO

sophia25 wrote: »

You can only give NOT as a landlord (if the tenant is not in breach) for 5 very specific reasons as per section 34 of RTA 2004 and even at that if the property becomes available for reletting within 6 months, the tenant must get first refusal. These are the facts and if you are a landlord, you should become aware of them.Too many landlords don't seem to understand that the main purpose of the RTA 2004 was to provide security of tenure for tenants. Here's the relevant part of the Act, so while you may not like what I'm saying it is certainly not "crap".

http://www.irishstatutebook.ie/2004/en/act/pub/0027/print.html#sec34

As you have said yourself you can give notice for SPECIFIC reasons. In theory you have to give them first refusal but lets not confuse law with reality.

do you think somebiody you have given notice to move out

a) would be interested in moving back in UNLIKELY knowing the stunt the landlord has already pulled to get them out

b) would be in a position to move back in. UNLIKELY as they would most probably have signed a new rental agreement elsewhere.

anyway back to my post. You said they cannot give notice to a part 4 tennant. This as you have admitted yourself is BULLSH*T

duploelabs

Hang on, since when am I pulling stunts? The tenant is the guy who has been late four times this year on his rent and threatening me to report me to the PTRB when the rent is already at the market rate.
Why is the presumption of guilt always resting on the landlord not the tenant?

The_Conductor

The OP has stated that there is a pre-existing lease, in effect until the end of the month- hence this is not a Part 4 tenancy

Regards

SMcCarrick

sophia25

D3PO wrote: »

As you have said yourself you can give notice for SPECIFIC reasons. In theory you have to give them first refusal but lets not confuse law with reality.

do you think somebiody you have given notice to move out

a) would be interested in moving back in UNLIKELY knowing the stunt the landlord has already pulled to get them out

b) would be in a position to move back in. UNLIKELY as they would most probably have signed a new rental agreement elsewhere.

anyway back to my post. You said they cannot give notice to a part 4 tennant. This as you have admitted yourself is BULLSH*T

You really are very aggressive for no reason. The only way a landlord can give notice in a part 4 tenancy is if he has a contract for sale, either he or one of his family need to live in it, he is doing major refurbishment, he is changing the use of property or the property is now too small for tenants (eg a studio apt. and a couple have since had a baby). If these reasons are used, the landlord has to prove it i.e planning permission, sale contract etc. The reason the re letting is there is that if the landlord has used this to oust the tenant and then does not follow through with what he was saying,but advertises it again, the tenant can bring a case to the PRTB. Nobody realistically expects the tenant to move back in, but it is a clause to ensure landlords don't abuse the system to illegally end a tenancy. So I stand by my statement that a landlord cannot just give notice, once a tenant has been longer than 6 months in occupation and has not been served a valid NOT in the 1st 6 month period (which you can't in a lease) and is not in breach of their obligations.

sophia25

duploelabs wrote: »

Hang on, since when am I pulling stunts? The tenant is the guy who has been late four times this year on his rent and threatening me to report me to the PTRB when the rent is already at the market rate.
Why is the presumption of guilt always resting on the landlord not the tenant?

He won't get anywhere with PRTB as he already had a rent review so ignore that. If he is late with his rent again you need to write him a letter giving him 14 days to pay it or he will be in breach of tenancy. Once the 14 days are up you can then validly issue him with a 28 day NOT. Even if he pays in that 28 days, he's breached the agreement and the tenancy can legally terminate.

The_Conductor

Once again- this *is not a part 4 tenancy*

sophia25

With respect, I appreciate that there is much confusion around Part 4 tenancies and leases, however a lease does not take away a tenant's Part 4 security of tenure. I've attached the clarification from the PRTB and highlighted Section 3 which is especially relevant. All tenancies, regardless of a lease become a Part 4 Tenancy once initial six months has passed. A landlord cannot take away a statutory right through a contract.

http://public.prtb.ie/DownloadDocs/Termination%20of%20FT.pdf

The leaflet is a general guide only and not an interpretation of the law and does not necessarily make reference to all relevant provisions.

TERMINATION OF FIXED TERM TENANCIES UNDER THE RESIDENTIAL TENANCIES ACT 2004

1 PART 4 TENANCY
Once a tenant has remained in occupation of a dwelling for a period of 6 months, he or she acquires
the benefit of a Part 4 tenancy under the Residential Tenancies Act 2004 (the “Act”).
A Part 4 tenancy entitles the tenant to remain in occupation for a period of four years in total,1 unless a
valid notice of termination is served on him or her. For further details on Part 4 tenancies see a “Quick
Guide to the Residential Tenancies Act”, at www.prtb.ie.

2 FIXED TERM TENANCIES
Landlords and tenants often enter into a tenancy for a fixed term period. For example a landlord or
tenant may agree that the tenancy will be for a period of two years. Usually, the terms of a fixed term
tenancy are contained in a lease agreement. A written lease agreement is not necessary however, for
a fixed term tenancy to exist, as the Act provides that a fixed term tenancy may also be oral or
implied.2

3 FIXED TERM TENANCIES AND PART 4

The existence of a fixed term tenancy does not preclude the operation of Part 4.3 Part 4 runs with a fixed term tenancy, so that the continuous occupation by a tenant under a fixed term tenancy for a period of 6 months, means the tenant shall, as in normal course, become entitled to the protections of a Part 4 tenancy. In cases of fixed term tenancies however, the rights under Part 4 only apply to the extent that they benefit the tenant over and above the rights afforded to him or her under the terms of
the fixed term tenancy.

4 TERMINATION

Part 4 Tenancies
1 . See, Section 28 of the Act.
2 . See, Section 5 of the Act.
3 . Section 54 provides that parties to a tenancy, cannot contract out of the provisions of Part 4.
A landlord may terminate a Part 4 tenancy, in accordance with the provisions of the Act, where any of
the circumstances set out in Section 34 of the Act arise. For instance a landlord, may terminate a
tenancy, in circumstances where he or she wants to live in the dwelling concerned.4
A tenant can terminate a Part 4 tenancy at any time and without reason, provided he or she gives the
requisite notice and complies with the provisions for termination of a tenancy under the Act, which
includes the service of a valid notice of termination.
Fixed Term Tenancies
A landlord can only terminate a fixed term tenancy where there the tenant has been in breach of his or
her obligations.5 Accordingly, a landlord cannot rely on the provisions of Section 34, to terminate a
fixed term tenancy during the fixed term. Following the expiration of the fixed term period however, if
the tenant has exercised his rights under Part 4, to extend his tenure for the remainder of the Part 4
tenancy of 4 years, the landlord can from then on, rely on the provisions of Section 34.
Similarly, a tenant can only terminate a fixed term tenancy where there the landlord has been in
breach of his or her obligations.6 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.
Explanatory Note
· Greater Security of Tenure
Landlords and tenants are free to agree as part of the tenancy arrangement, more beneficial
rights in favour of the tenant, than are created by Part 4. This is permitted by Section 26 of the
Act. Accordingly a landlord and a tenant may agree a greater security of tenure in favour of a
tenant. An example of this is where a landlord and tenant agree that the tenancy will be for a
fixed term.
· Section 58 of the Act
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. As noted above, by virtue of
Section 26 of the Act, a landlord and tenant are free to agree as part of the tenancy arrangement,
more beneficial rights in favour of the tenant, than are provided for in Part 4. Essentially, a greater
security of tenure may be agreed in the tenant’s favour. Accordingly, if for example, a landlord and
tenant agree that the tenant may remain in occupation for a fixed term of two years, this is a greater
security of tenure that has been afforded to the tenant, by virtue of the provisions of Section 58.
Section 58 provides that a tenancy referred to in Section 26, “shall be construed as including a term
enabling its termination by means of a notice of termination that complies with Part 5 (but, in the case
4 . Paragraph 4 of the Table at Section 34 of the Act.
5 . See tenant’s obligations at Section 16 of the Act. Additional obligations may be imposed on the
tenant in a lease agreement, provided they are consistent with the provisions of the Act (Section 18(3)).
6 . See landlord’s obligations at Section 16 of the Act. Additional obligations may be imposed in a lease agreement (Section 18(2)).2 of a tenancy that is for a fixed period, unless it provides otherwise, only where there has been a failure by the party in relation to whom the notice is served to comply with any obligations of the tenancy)”. Accordingly, 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. As noted
above, there is one exception to this, which arises where there has been in breach of obligations by the landlord or tenant. In a tenant’s case, he or she may also rely on the provisions of Section 186 to
terminate the tenancy, in circumstances where the tenant seeks to assign or sublet the tenancy and the landlord refuses consent.

5. BREAK CLAUSES

Where a break clause is provided for in a fixed term tenancy agreement, for instance one which may
be exercised by the landlord or tenant after an 18 month period, the question arises as to whether the
landlord or the tenant can rely on this break clause to terminate the tenancy. As noted above, the
parties to a tenancy may agree a greater security of tenure in favour of the tenant than is provided for
under Part 4. The rights afforded to a tenant under Part 4, still apply to a fixed term tenancy in the
sense that they afford greater rights to the tenant, over and above the fixed term tenancy.
Accordingly, if a landlord sought to exercise the break clause after 18 months, the tenant could rely on
his rights under Part 4 to remain in the dwelling for the remainder of the 4 year period. A tenant on the
other hand may exercise a break clause provided for in a fixed term tenancy agreement, where it has
been agreed between the landlord and the tenant. There is nothing in the Act preventing the tenant
from doing so, unlike Part 4 in the scenario where the landlord seeks to terminate the tenancy.

6. EXPIRY OF THE FIXED TERM

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. If the tenant fails to do so and the
landlord has suffered damage as a result, the landlord may refer a dispute to the Private Residential tenancies Board.
Once a fixed term tenancy comes to an end, in circumstances where the tenant remains in occupation and the landlord subsequently wishes to terminate the tenancy, the landlord can rely on the provisions
of Section 34 to terminate the tenancy, as the fixed term has come to an end.


“Even though care has been taken in the preparation and publication of this guidance note the Private Residential Tenancies Board, its servants or agents assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature
of the information provided in this guidance note and do not accept any liability whatsoever arising
from any errors or omissions contained therein".

The_Conductor

sophia25 wrote: »

a lease become a Part 4 Tenancy once initial six months has passed

This is the operative part.
6 months hasn't passed- its month 5- the terms of the lease are enforceable, whatever they might be, not the Part 4 tenancy terms (and indeed the termination rules specified by Article 34, thereof).
If the lease allows 2 weeks notice- thats the notice.

Also- check the rules governing Part 4 tenancies- all the landlord has to do is serve a notice of termination before the elapse of the 6 months, to void Part 4 protections.

Note- the legal rights accruing from a Part 4 tenancy are in addition to and not superceded by the rights accruing to either party by lease arrangement. A failure of lease articles on the part of either party- is a civil matter between the two parties- as it is considered to be a legally binding contractual arrangement. So- even if the tenant considers themselves bound by a Part 4 tenancy and the rules it entails- they could also potentially have additional rules, as per the original lease, regardless of whether this has been renewed or not.

sophia25

The point is if a landlord signs a 12 month lease then he can't give valid NOT in first six months and therefore it guarantees a tenant Part 4 tenancy rights. The only way a landlord can avoid Part 4 is to only have tenants in a property for 6 months at a time! Also you can not use Section 34 to terminate a lease, the RTA is very clear that that can only be used when a lease has lapsed. Regardless of what a lease states, statutory rights can not be taken away from any party. All tenants have Part 4 Tenancy rights once 6 months have lapsed without a valid NOT and once the tenant is not in breach of their obligations. Landlords need to be aware that by signing a Lease for 6 months or longer they are automatically giving a tenant security of tenure for 4 years from the start of tenancy.

The_Conductor

Unless of course they use the standard lease with a 6 month break, and exercise the break- prior to elapse of the 6 months. I do not know whether the OP has a break in the lease- he/she hasn't clarified this- however as they under the 6 months- all they have to do is give the notice period as specified in the lease, no reason necessary. Article 34 kicks in, when the Part 4 is in effect- and the tenant has breached their obligations under the act (or the landlord requires the property back, for whatever reason).

Just having a read over some of the PRTB cases now.

D3PO

sophia25 wrote: »

You really are very aggressive for no reason. The only way a landlord can give notice in a part 4 tenancy is if he has a contract for sale, either he or one of his family need to live in it, he is doing major refurbishment, he is changing the use of property or the property is now too small for tenants (eg a studio apt. and a couple have since had a baby). If these reasons are used, the landlord has to prove it i.e planning permission, sale contract etc. The reason the re letting is there is that if the landlord has used this to oust the tenant and then does not follow through with what he was saying,but advertises it again, the tenant can bring a case to the PRTB. Nobody realistically expects the tenant to move back in, but it is a clause to ensure landlords don't abuse the system to illegally end a tenancy. So I stand by my statement that a landlord cannot just give notice, once a tenant has been longer than 6 months in occupation and has not been served a valid NOT in the 1st 6 month period (which you can't in a lease) and is not in breach of their obligations.

i know the reasons a ll can give notice under part 4 dont think you are the only person that knows :rolleyes:

the fact remains you said you cannot give notice under part 4. this is WRONG.

As for a tennant getting first refusal i go back to my point you need to get with reality and stop looking at what the legal situation is. The fact is a tennant that moves out wont move back in because they are likely to be either in another tennancy agreement, or realise that it would be more hassle than its worth to do so.

thats of course assuming they actually notice the accomadation is up for reletting which isnt questionable anyway.

sophia25

smccarrick wrote: »

This is the operative part.
6 months hasn't passed- its month 5-

No, the ll gave a rent reduction six months ago so lease is in existence longer. It is due to expire next month, but is obviously longer than the 6 months- S

Note- the legal rights accruing from a Part 4 tenancy are in addition to and not superceded by the rights accruing to either party by lease arrangement. A failure of lease articles on the part of either party- is a civil matter between the two parties- as it is cotenancy and the rules it entails- they could also potentially have additional rules, as per the original lease, regardless of whether this has been renewed or not.

Again that is not true. The PRTB state that the rights in a lease are additional to Part 4 rights, but those rights can't be diminished. Statutory law supersedes contract law. If you look above under breakclause, where it has been agreed by tenant and landlord in a lease, the tenant can exercise the right but the landlord can't, so by putting it in a landlord only injures himself.

I really don't want to appear argumentative, but I think it is important that people understand that a lease does not protect a landlord from Part 4 tenancies and that all tenants of 6 months + have acquired these rights irrespective of any lease etc.

duploelabs

OP here, i'm sure you want to argue amongst yourselves. However my initial is now moot as the tenant has backed down. Hurrah