Refund tenant? Some, all or nothing?

Jagera

I have a tenant who is breaking the 12 month fixed-term lease 2 months early. They are requesting their deposit back, and I am open to hear people's opinion.

They were on rent allowance. They are moving because they were caught by social welfare, they didn't declare the husband was living there, & he was working.

They had some issues with the property, which they are claiming that I broke the lease because I didn't fix them. Here's what it was;
- the microwave broke, I got it replaced after 3 weeks
- one shower had a drainage problem, it was clogged, or blocked. I asked them if it might just be something stuck, and to try some drain cleaner. That didn't work and admittedly I have not yet got a plumber out. This has gone on over 1-2 months, but they didn't seem to really be bothered about it, so I have let it slide.

I have not yet inspected the property, they don't move out until end of next week, and I don't plan to give them a decision on the deposit until I've inspected it, they are out, and I have the keys.

Finding a tenant costs nearly a month's rent, plus PRTB cost & cleaning costs.

Any opinions on this?

irlrobins

Keep deposit, you're probably well within your rights to chase them for the remaining two months. In reality, they won't be able to pay this, so prob best to cut your losses and get in new tenants asap.

Some info here on retaining deposits that you can direct them at.

Ray Palmer

You should have followed up on the drain due to the fact it would cause damage to your own place plus it's just common courtesy.

You are entitled to the deposit so well able to keep it.

Things to bear in mind.

• Check the bills are all paid up (electric,bin,gas,phone, etc..)
• They will be angry if you keep a deposit, do not go on your own
• Change the locks after they leave(do this every time a tenant moves)
• Do not rush the inspection, it takes time

Effectively they were stealing money and are now probably going to be made pay it back so expect them to be upset when they lose their deposit too.

Dyr

Leaving the tenancy early notwithstanding, I wouldn't be handing keys to any landlord until they'd inspected the property and made their intentions clear on the deposit

odds_on

Bambi wrote: »

Leaving the tenancy early notwithstanding, I wouldn't be handing keys to any landlord until they'd inspected the property and made their intentions clear on the deposit

Exactly as Bambi says. And preferably view the property a few days, at least, before the tenants leave and advise of them the things that should be done before they leave (as regards cleaning etc.) and the final inspection (again preferably with the tenant).
At the first inspection, try to avoid indicating that the deposit may be retained due to their breaking the lease - try to indicate that the deposit return depends on the condition of the property when it is returned.

rasper

normally I'd lean towards siding with the tenant on deposit issues but they if they didnt stay the full 12 months well then why should you be at a loss, may be different if it was under different circumstances beyond their control.
Just out of interest do the Social welfare contact the landlords receiving RA tenants to establish who is residing in the house, surely this should be standard protocol, assumimg it was a single parent family allowances being claimed, with RA and rest of the benefits it sounds like it ran into many thousands if it ran for full 10 months.

nicol

I'd be inclined to side with you on this and keep the deposit. They're breaking the lease and leaving you potentially out of pocket.

As an aside I'm delighted to hear someone getting caught out for welfare fraud, uinfortunately it could leave the OP out of pocket as a result!!

Jagera

I have discussed what is required for cleaning. I was in the property about 2 months ago and I know it's not in bad condition, so I'm not expecting any surprises.

The tenant has asked several times about the deposit, and I have indicated that they are breaking the lease early, and there are costs involved. Then came the reply that I broke the lease because of the drain & so on.

I'm planning to be as amicable as possible, and I don't mind giving something back, even just to keep the peace. But it certainly won't be a major portion of the it.

Regarding social welfare. they never contacted me.

Ray Palmer

Under no circumstances would I tell a tenant before they are moving out whether they will get their deposit or not. They could wreck the place. Judging by the fact they are fraudsters you can be pretty sure theri moral compas won't prevent them from getting back at you.

You are not breaching the contract by providing a bad service(you should have provided a good service).
I would certainly check how bad the drain is when you are inspecting the place. If it became blocked while they were there chances are they blocked.

I wouldn't return much if anything.

rasper

bw wrote: »

Regarding social welfare. they never contacted me.

Not surprised on that at all, wonder why they take so long to assess claims when they dont seem to assess much

subway

http://public.prtb.ie/DownloadDocs/Termination%20of%20FT.pdf
http://www.let.ie/articles/landlords-rights-and-obligations

some useful reading for you

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)

basically, they can serve you notice for failing to fix the problems. you might not have realised it at the time, but they may have done this to give themselves an out

PCPhoto

ask them for a forwarding address to send on the deposit (if/when you make up your decision)

give revenue the forwarding address !

Social Welfare abusers ruin the system for the others - report them....because if they move home their file is given to another person - someone who might not care about co-habiting partner earning and the person claiming.

professore

Ray Palmer wrote: »

Under no circumstances would I tell a tenant before they are moving out whether they will get their deposit or not. They could wreck the place. Judging by the fact they are fraudsters you can be pretty sure theri moral compas won't prevent them from getting back at you.

You are not breaching the contract by providing a bad service(you should have provided a good service).

In one paragraph to criticise their moral compass and in the next one to claim innocence yourself is hypocritical. The OP should have had the drain looked at sooner and saying it "didn't seem to bother them" is just a way of justifying it to himself. Whether or not they defrauded the SW is their problem, not yours - in any case you didn't know about it when you ignored the blocked drain.

Having said all that, in reality if it's a 12 month lease you are owed the remainder of the lease, so if it's more than the deposit then keep it, otherwise return the difference, assuming you're happy with the condition of the place when you inspect it.

RobbieTheRobber

bw wrote: »

I have discussed what is required for cleaning. I was in the property about 2 months ago and I know it's not in bad condition, so I'm not expecting any surprises.

The tenant has asked several times about the deposit, and I have indicated that they are breaking the lease early, and there are costs involved. Then came the reply that I broke the lease because of the drain & so on.

I'm planning to be as amicable as possible, and I don't mind giving something back, even just to keep the peace. But it certainly won't be a major portion of the it.

Regarding social welfare. they never contacted me.

The legal standing is they are breaking the lease and you are not obliged to return them the lease, however it really is up to you should you choose to return some of the money.
If you are not making a loss then I see no harm in giving them back some of the money.

UDP

OP did you give them a BER certificate of the property? If not then they could easily use that to break the lease legally and be entitled to their deposit back - just to be aware.

Jagera

No I didn't give them a BER certificate.

professore - Criticising their moral compass? sorry, but I didn't do that.

Ray Palmer

professore wrote: »

In one paragraph to criticise their moral compass and in the next one to claim innocence yourself is hypocritical. The OP should have had the drain looked at sooner and saying it "didn't seem to bother them" is just a way of justifying it to himself. Whether or not they defrauded the SW is their problem, not yours - in any case you didn't know about it when you ignored the blocked drain.

Having said all that, in reality if it's a 12 month lease you are owed the remainder of the lease, so if it's more than the deposit then keep it, otherwise return the difference, assuming you're happy with the condition of the place when you inspect it.

I claim innocence to nothing I don't own the place. You got the wrong guy. There doesn't seem to be any "if" they defrauded the state option here, it is stated as fact. Given that information you can safely guess they won't have any problem wrecking a place if annoyed.

Ray Palmer

UDP wrote: »

OP did you give them a BER certificate of the property? If not then they could easily use that to break the lease legally and be entitled to their deposit back - just to be aware.

That is not true! One article written about it being possible does not make it fact.

UDP

Ray Palmer wrote: »

That is not true! One article written about it being possible does not make it fact.

A circular from the law society:
http://www.ber-certs.ie/law_society_circular.pdf
Fact is if a landlord does not provide a BER certificate before the lease is signed then the tenant can back out of the contract since a major statutory precondition has been broken.

livinonaprayer

bw wrote: »

They were on rent allowance. They are moving because they were caught by social welfare, they didn't declare the husband was living there, & he was working.

If they were claiming welfare as well as rent allowance and the husband's wages, then surely they don't need the money anyway!

BostonB

You can't claim for normal cleaning costs.

Personally I'd consider you to have broken the lease by not fixing the shower, just as they have by breaking the lease. But if they take it to PRTB I think they'd split the difference, 50% back 50% retrained. Of course you have all this in writing. Yes.

Ray Palmer

UDP wrote: »

A circular from the law society:
http://www.ber-certs.ie/law_society_circular.pdf
Fact is if a landlord does not provide a BER certificate before the lease is signed then the tenant can back out of the contract since a major statutory precondition has been broken.

That is an opinion piece that has to go to court to have a standing. Not law not fact. We have discussed this many times here and unless these people decide to bring it to court to prove this opionion it doesn't mean anything.

The fact is BER compliance cannot at present be used to get out of a lease. The opinion of the law society is actually just an opinion until proven in court

Grolschevik

UDP wrote: »

A circular from the law society:
http://www.ber-certs.ie/law_society_circular.pdf
Fact is if a landlord does not provide a BER certificate before the lease is signed then the tenant can back out of the contract since a major statutory precondition has been broken.

The opinion of the Conveyancing Committee of the Law Society is opinion only.

This is at best an as yet untested possible bargaining tool, and at worst a myth. A breach of the regulations on the part of the landlord does not unequivocally give you the right to break a contract.

Read more here:

http://www.boards.ie/vbulletin/showthread.php?p=73061468

Salient quotes:

"A similar thread came up in the Legal Discussion forum.

A failure to produce a BER is an offence only. Nowhere in the Regulations does it state that leases, deeds etc. are invalidated. You would use it as a 'loophole' at your own peril."

And:

"Again, the Regulations do not provide for any right to rescind a contract, lease or whatever. That article seems to suggest that a tenant might be able to use the threat of reporting non-compliance as leverage, which is another matter entirely."

subway

Agree with the ber comments. It's not covered under the act so isn't a definite for breaking.

UDP

Those are your opinions - I think I will weigh the opinion of the law society as more important.

OP, the tenants do have the right to end the tenancy where the landlord is in breach of an obligation. I believe in your case opportunity was given for the issue to be resolved but it was not resolved - really you shouldn't have let anything slide as it only gives power to the tenants. There is no excuse for 1-2 months but was the shower completely blocked or how bad was it?

Ray Palmer

UDP wrote: »

Those are your opinions - I think I will weigh the opinion of the law society as more important.

Good for you disregard the reality and substitute your own

UDP wrote: »

OP, the tenants do have the right to end the tenancy where the landlord is in breach of an obligation. I believe in your case opportunity was given for the issue to be resolved but it was not resolved - really you shouldn't have let anything slide as it only gives power to the tenants. There is no excuse for 1-2 months but was the shower completely blocked or how bad was it?

Neither for the drain nor the BER has any breach been commited. They lived there and they are moving out becasue of a seperate reason. The extent of the drain blockage is important

BostonB

That might depend if you can prove thats the reason, or can they now claim (in writing) something else.

Jagera

The drain blockage was not bad. The shower was usable, just slow to drain. The conversation regarding get it fixed was casual, and between us we tried a few things. At no stage, did they say it stopped them using the property, it didn't flow over onto the floor, none of their stuff was ruined, etc.

The reason it dragged over time, was that it never seemed an urgency. Other things which needed attention were always fixed within 1-2 days.

UDP

Ray Palmer wrote: »

Good for you disregard the reality and substitute your own

Neither for the drain nor the BER has any breach been commited. They lived there and they are moving out becasue of a seperate reason. The extent of the drain blockage is important

We are all just giving opinions since none of us will be ones making a judgement for this case if it goes that far. The fact is the OP was in breach of statutory requirements which the tenants could claim was important information that they were not furnished and they could also claim that they landlord did not live up to his/her obligations with regards repairing the reported problem with the shower.

The problem for the OP here is how can he/she explain why it was not fixed even though 1-2 months has passed.

I dont see here how you or anyone else can prove that they are moving out because of the social welfare issues.

UDP

EDIT: as now I see the OP's reply as to the extent of the issue with the shower then I dont see it as something that was broken enough for the tenants to claim wasn't fixed.

OP, all you can do here is view the place and get back the keys then tell them that the deposit wont be returned as the lease was broken early but that you will not be pursuing them for the 12th month owed even though it is your right to do so.

BostonB

Story changing as the thread progresses.

LL and tenants really need to get into the habit of formalising their communications. It would encourage them to do things properly.

Zulu

They're breaking the contract. Keep the deposit.

Jagera

BostonB wrote: »

Story changing as the thread progresses.

LL and tenants really need to get into the habit of formalising their communications. It would encourage them to do things properly.

Where has it changed? And what would you suggest for formalising communications? Registered post, or what do you mean? We had been emailing over the last 10 months with no problem.

Ray Palmer

UDP wrote: »

We are all just giving opinions since none of us will be ones making a judgement for this case if it goes that far. The fact is the OP was in breach of statutory requirements which the tenants could claim was important information that they were not furnished and they could also claim that they landlord did not live up to his/her obligations with regards repairing the reported problem with the shower.
.

You see that is where you are wrong it is isn't opinion it is experience I am giving. You are giving opinion without any experience. It was quite obvious frm the start that the drain was not completely blocked and it was not effecting them from living there otherwise they would have made a bigger fuss. You also think that this would qualify as a failure to have statutory requirements, which it would not.
You still fail to see the BER IS NOT a reason to break a lease untill proven in court. It isn't opinion it is fact, there is a belief that it could possibly be used that is all nothing more. To claim otherwise is simply incorrect.

OP
Breaking a lease does mean you can with hold the deposit. It isn't often done due to the animosity it creates. I would hold the decision off until you see the place and have checked the bills but probably wouldn't give it back due to the fraud they commited.

Jagera

Ray Palmer wrote: »

OP
Breaking a lease does mean you can with hold the deposit. It isn't often done due to the animosity it creates. I would hold the decision off until you see the place and have checked the bills but probably wouldn't give it back due to the fraud they commited.

I don't plan to use the SW fraud as any kind of reason for the deposit discussion. The reason for their leaving is dodgy, but I cannot use it as ammo for retaining the deposit.

Ray Palmer

bw wrote: »

I don't plan to use the SW fraud as any kind of reason for the deposit discussion. The reason for their leaving is dodgy, but I cannot use it as ammo for retaining the deposit.

Not as ammo just an additional reason that would make me personally keep it. They used your property to defraud the state that would annoy me along with the fact it will bring into question your property with regard to RA. They should have required you to sign papers in order to get RA so they did commit fraud using your address if not your actual name. Your call

BostonB

bw wrote: »

Where has it changed? And what would you suggest for formalising communications? Registered post, or what do you mean? We had been emailing over the last 10 months with no problem.

For example - You didn't mention you had it all in email.

If you have the reason for leaving in email you've no problem.

Jagera

Ray Palmer wrote: »

Not as ammo just an additional reason that would make me personally keep it. They used your property to defraud the state that would annoy me along with the fact it will bring into question your property with regard to RA. They should have required you to sign papers in order to get RA so they did commit fraud using your address if not your actual name. Your call

I know what you mean. It's fraud. But that fraud wasn't committed against me. The thing against me is simply terminating the lease.

Ray Palmer

bw wrote: »

I know what you mean. It's fraud. But that fraud wasn't committed against me. The thing against me is simply terminating the lease.

If you didn't sign RA forms it was commited against you even though you lost nothing financially your reputation has been effected. Your call really but I wouldn't let it go. Get your BER done when they leave. You do need it. You should look at the insulation grants too.

odds_on

Ray Palmer wrote: »

If you didn't sign RA forms it was commited against you even though you lost nothing financially your reputation has been effected. Your call really but I wouldn't let it go. Get your BER done when they leave. You do need it. You should look at the insulation grants too.

Just a thought, but doesn't seem to apply in this case. If the tenant was claiming rent allowance fraudulently, and if the SW payment was paid directly to the landlord, cannot the welfare come looking to the landlord for the rent that they have paid "in error"?

odds_on

BostonB wrote: »

Story changing as the thread progresses.

LL and tenants really need to get into the habit of formalising their communications. It would encourage them to do things properly.

My own lease says:
To notify the Landlord or the landlord’s Agent, of disrepair, or damage or breakdown of appliances, within 48 hours by one of the emergency contact means (see Landlord Covenants clause 5.7) and in writing within 5 days.


1. A tenant should advise his landlord as soon as he realizes there is a problem with any item or appliance. If the breakdown/failure is of a serious nature the tenant should phone the landlord and advise him accordingly.
2. Follow up the phone call with a written statement of the fault AND say that the landlord should make repairs/replacement within a reasonable time - depending on the nature of the problem, usually 7 to 14 days is reasonable.

3. Any delay beyond the reasonable time and the landlord may be in breach of his obligations. This breach of obligations may give the tenant the right to break the lease with no penalty.

Ray Palmer

odds_on wrote: »

Just a thought, but doesn't seem to apply in this case. If the tenant was claiming rent allowance fraudulently, and if the SW payment was paid directly to the landlord, cannot the welfare come looking to the landlord for the rent that they have paid "in error"?

RA is not paid directly to the LL unlesss requested. So the LL iss not liable for the fraud but even if it was he is not normally privy to the details of the claim.

Rental contracts are different not all have the clause you have stated.

OP what does your lease state?

edanto

And if it were to come to a dispute where the tenant claimed a valid breach under item 3 above, their case would be stronger if they had requested by email the shower drain fixed within a certain time frame.

If that is not the case by now, then their case is weaker and it looks like they're exaggerating the drain issue to try and save their deposit.

If they insist on claiming their deposit through PRTB, I presume you can enforce the lease and make them liable for the 2 remaining months rent AND the deposit. Check that with someone who knows for sure and if it's the case you could point it out to them before they go down that path. And after you have the keys! (have they moved out already, or when will they?)

Jagera

Ray Palmer wrote: »

OP what does your lease state?

Lease mentions nothing of RA, it was paid directly to them. I am out of that loop, thankfully.

edanto

I think he meant what does your lease say in relation to the point in post 41 ?

Also - did they ask you to fix the shower by a particular date?

stargazer 68

Well OP according to the PRTB site you are only allowed to keep the rent owed to you from the deposit - 2 months. Unless I have read it wrong.

http://public.prtb.ie/DownloadDocs/Deposit%20Refund.doc

'Therefore if a tenant ends a tenancy by giving a landlord less than the required period of notice, or only verbal notice, or a written notice that does not comply with the Act, it is at the landlord's discretion whether to make a deduction from the deposit in respect of the outstanding rent appropriate to the notice period to which he/she was entitled by way of a valid Notice of Termination'

jsd1004

BostonB wrote: »

You can't claim for normal cleaning costs.

Personally I'd consider you to have broken the lease by not fixing the shower, just as they have by breaking the lease. But if they take it to PRTB I think they'd split the difference, 50% back 50% retrained. Of course you have all this in writing. Yes.

The shower was not broken the drain was blocked. Are tenants not liable for blocking drains? All showers will clog with hair if they are not cleaned periodically.

Jagera

Dovies wrote: »

Well OP according to the PRTB site you are only allowed to keep the rent owed to you from the deposit - 2 months. Unless I have read it wrong.

http://public.prtb.ie/DownloadDocs/Deposit%20Refund.doc

'Therefore if a tenant ends a tenancy by giving a landlord less than the required period of notice, or only verbal notice, or a written notice that does not comply with the Act, it is at the landlord's discretion whether to make a deduction from the deposit in respect of the outstanding rent appropriate to the notice period to which he/she was entitled by way of a valid Notice of Termination'

That is only about the validity of the termination notice.

BostonB

jsd1004 wrote: »

The shower was not broken the drain was blocked. Are tenants not liable for blocking drains? All showers will clog with hair if they are not cleaned periodically.

Not usually to the point of requiring a plumber...

bw wrote: »

...
- one shower had a drainage problem, it was clogged, or blocked. I asked them if it might just be something stuck, and to try some drain cleaner. That didn't work and admittedly I have not yet got a plumber out. This has gone on over 1-2 months...

odds_on

If they insist on claiming their deposit through PRTB, I presume you can enforce the lease and make them liable for the 2 remaining months rent AND the deposit.

You as landlord must try to re-let the property as quickly as possible after the tenants leave (for the PRTB you will need proof of your endeavours - advertizing, etc.). If you succeed in re-letting the property you can only claim for the period that the property was vacant.

Originally posted by Dovies:
Well OP according to the PRTB site you are only allowed to keep the rent owed to you from the deposit - 2 months. Unless I have read it wrong.

http://public.prtb.ie/DownloadDocs/Deposit%20Refund.doc

'Therefore if a tenant ends a tenancy by giving a landlord less than the required period of notice, or only verbal notice, or a written notice that does not comply with the Act, it is at the landlord's discretion whether to make a deduction from the deposit in respect of the outstanding rent appropriate to the notice period to which he/she was entitled by way of a valid Notice of Termination'

The above only applies to a Part 4 tenancy (and a periodic tenancy) BUT NOT to a fixed term tenancy.
Too many people go to the PRTB website or the RTA 2004 and quote Part 4 laws (without realizing that there is a difference) when lease is a Fixed Term lease.

In a fixed term tenancy - which is the usually type of agreement - there is no right on either the tenant's side nor the landlord's side to terminate the agreement before the expiry date; that is why it is called a FIXED TERM.
The only way a tenant can legally get out of or break a fixed term agreement is as follows:
1. The only way to get out of a fixed term lease the tenant can assign the lease to another person who then takes over the remainder of the lease.
2. To break a fixed term lease, the landlord must have breached one his obligations - however, usually, the tenant must have informed the landlord of a problem AND given the landlord a reasonable time to rectify the breach. If the tenant has not given the land a reasonable time in which to rectify the problem, the problem may continue for a long time.
However, a GOOD landlord will see to the problem as quickly as possible (as often, failure to do so may affect his property more seriously)

Jagera

Did the handover this evening. I made it clear that they were not really in line to getting any of their deposit back, however I was willing to offer something just to close it off, and keep them happy.

They chose not to accept that, and to pursue it through the PRTB. It was amicable, and we parted ways on decent terms.

Whatever the PRTB decide will be OK with me.

But the main point as far as I am concerned, is all went well, no hassles, and we're both happy enough to go with the PRTB decision.