Fixed-term lease lapsing into a Part IV

oflahero

This whole area has had a bit of convoluted discussion devoted to it in the past, and I've done a bit of searching, but still can't quite get a definitive answer on this.

Once your fixed-term lease expires (and you've been in the place >6 months anyway) are you automatically covered by and only by your Part 4? I ask because there's a bit of confusion out there where on one hand people say, 'you're still operating under the terms of the fixed-term lease, on a month to month rolling basis', and others say 'no, the fixed-term lease is up so it is now solely a Part 4 tenancy.'

Anybody with a clear view on this? Nothing in black-and-white on Threshold.ie that I can see

EDIT: in my case, it was because towards the end of the last lease, I went looking for a rent reduction in the next one, was refused, and we compromised on just not signing a new year fixed-term. Nothing else signed. I'd sent emails to the agent saying 'I assume we're on a Part 4 now' but just got evasive replies back.

odds_on

If, at the end of a fixed term lease, you decided to stay in the property, you do not have to sign a new fixed term lease as you are automatically have a Part 4 tenancy. If you were issued with a Notice of Termination during the first six months of the Fixed Term (this could happen if you breached the terms of the lease) then you loose this right).

Although a Part 4 lease was brought in to give a tenant more security in their tenancy (more secure than the previous laws provided), it is not as secure as a fixed term lease.

With a Part 4 lease, the landlord has six options where he can ask the tenant to leave - the two most used are if the landlord requires the property for his own use or that of a family member. The second most common option used is if the landlord wants to sell the property within the next 3 months. However, a Part 4 lease may be slightly more expensive due to the fact that a tenant can leave at any time thus adding to the landlord's expenses (advertising, possible void period etc.).

In the tenant's favour, with a Part 4 lease, he has the right to stay in the property for up to 4 years without having to worry about a new lease. He is also able to leave the property if he wishes, by writing to the landlord and informing him of his intention to vacate and giving the correct notice period. The notice period increases with the amount of time the tenant has occupied the property.

IMHO, a Part 4 lease works very well when the tenant and landlord are on good terms: the tenant is happy with the way the landlord looks after the property and fixing any faults quickly. The landlord is happy with the way the tenant looks after the property and informs him quickly of any problems.

With a second fixed term lease, the landlord has no way of removing his tenant (except for breach of lease conditions or with the use of a break clause). Equally, the tenant is fixed into the lease for another full term. This is excellent for a tenant who knows that he will stay for the full term and another fixed term lease may also include a rent reduction. However, a tenant can always assign the lease to someone else should he want to leave. The landlord can do nothing to remove the tenant (except as stated above.

I hope this has been clear and that you understand the system better. It is not easy to give the details you want relevant to Fixed Term and Part 4 leases as they cover a vast area. Very often people look at other websites (Threshold and Citizens Advice) which often fail to mention which type of lease they are referring to, as well as people only half reading an entire article.

oflahero

My main reason for asking was that there appear to be one or two sneaky clauses in the fixed term lease that are angled towards being able to retain deposit money for what you'd normally consider wear and tear (e.g. 'tenants must clean the carpets professionally when leaving'). If said lease has expired, and we're therefore just covered by Part 4, these clauses shouldn't apply when we do leave.

But if for some reason the terms of the fixed lease DO carry over to the month-to-month, then it' a bit of a pain.

Thanks for the informative post.

antoinolachtnai

It being or not being a part 4 tenancy is not going to make that much difference to the deposit clauses. You are headed for a big argument if you decide to contest them. It is far from clear how these clauses will interact with the law, if it went to Tribunal, or on to Court.

odds_on

As regards the "carry over" a fixed term clause to an unwritten Part 4 lease, this would be impossible because when a fixed term lease comes to its termination date, if finishes and exists no more.
If the landlord wants to "carry over" any clauses from a fixed term lease then he should provide a written Part 4 lease and include any clauses he wants provided they are legal.

The RTA 2004 states:

(f) not do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy, but there shall be disregarded, in determining whether this obligation has been complied with at a particular time, any deterioration in that condition owing to normal wear and tear, that is to say wear and tear that is normal having regard to—
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen would occur since that commencement, and
(iii) any other relevant matters,

(g) if paragraph (f) is not complied with, take such steps as the landlord may reasonably require to be taken for the purpose of restoring the dwelling to the condition mentioned in paragraph (f) or to defray any costs incurred by the landlord in his or her taking such steps as are reasonable for that purpose,

All leases (Fixed Term, Part 4 and Periodic) are based on the on the RTA 2004, some clauses being a copy of the Act while other clauses go into more detail than the clause of the Act.
Many landlords use the Top Floor leases and the following comes from their Part 4 lease agreement which gives more clearly what is required:

3.9 Immediately before handing up possession of the premises on the termination of this Agreement to thoroughly clean all cookers, fridge, sanitary apparatus and other appliances and all carpets, floor coverings and furnishings and to deliver up same in a sound and clean condition, fair wear and tear excepted; provided always that breach of this condition shall entitle the Landlord to deduct the cost of cleaning the premises from the Security Deposit.

Thus, if landlords wants the carpet cleaned to professional standards they may included it in the lease. However, if the carpet was not cleaned to professional standard at the start of the tenancy, the landlord cannot require a tenant to do so - the tenant only has to leave the property in the same condition as it was at the start of the tenancy. For a landlord to prove it was professionally cleaned, it should be stated on an inventory list which is normally part of the lease and signed as accepted by the tenant and landlord.
However, many landlords fail to provide a comprehensive inventory of the contents of the property thus when a claim is made against them, they lose the claim by not having sufficient detail on the inventory.

antoinolachtnai

The deposit was given under the terms of the original lease, so those clauses are likely to carry forward. Fixed term leases do not necessarily end at the end of the fixed term. It depends on the language.

It is not crystal clear in law that the landlord can add a cleaning clause and expect it to be enforceable. I agree with you that this seems a reasonable interpretation, but it is a matter open for legal interpretation and it could go either way in Tribunal. Requirement for cleaning, or certain types of cleaning may be a foreseeable consequence of occupation (see (ll) in the section of the Act quoted).

not even wrong

My understanding as someone who is not a lawyer is that the clause is enforceable but the landlord is not allowed to make a deduction from your deposit if you do not fulfill it. The RTA allows the landlord to retain the deposit only in the specific cases of 1) unpaid rent or 2) damage beyond normal and tear. Their only option is to sue you in small claims court (they probably won't bother to do this).

Regardless of the above as a tenant I'd always clean the place before I moved out.

antoinolachtnai

A landlord cannot sue a tenant through the small claims procedure.

odds_on

antoinolachtnai wrote: »

The deposit was given under the terms of the original lease, so those clauses are likely to carry forward. Fixed term leases do not necessarily end at the end of the fixed term. It depends on the language.

It is not crystal clear in law that the landlord can add a cleaning clause and expect it to be enforceable. I agree with you that this seems a reasonable interpretation, but it is a matter open for legal interpretation and it could go either way in Tribunal. Requirement for cleaning, or certain types of cleaning may be a foreseeable consequence of occupation (see (ll) in the section of the Act quoted).

Landlords can deduct cleaning costs from a deposit. Check out PRTB dispute resolutions where landlords have won and lost claims but has been allowed to retain from the deposit for cleaning. Here are just 4 resolutions:

DR786/2007 - having deducted €497 for cleaning costs
DR115/2008 - having deducted €681 for cleaning costs
DR699/2008 - having deducted €400.00 in lieu of cleaning costs
DR1049/2008 - The Respondent Tenants shall pay €1,000 (€500 each) .... as a contribution towards the cost of cleaning, repairs and replacements in excess of normal wear and tear .....

This is always provided that the landlord can prove that the property was left in an "unclean" state by having a good detailed inventory.

.

not even wrong

odds_on wrote: »

DR786/2007 - having deducted €497 for cleaning costs
DR115/2008 - having deducted €681 for cleaning costs
DR699/2008 - having deducted €400.00 in lieu of cleaning costs
DR1049/2008 - The Respondent Tenants shall pay €1,000 (€500 each) .... as a contribution towards the cost of cleaning, repairs and replacements in excess of normal wear and tear .....

Are those for regular cleaning or did the tenant completely trash the place (i.e. beyond what would be expected as ordinary dust/grime)?

antoinolachtnai

That is a guide but Tribunal decisions don't provide a binding precedent. Were there legal submissions in these instances?

I am not disagreeing with you that cleaning clauses are valid. I am just saying that the situation is not clear cut from a legal point of view.

odds_on

not even wrong wrote: »

Are those for regular cleaning or did the tenant completely trash the place (i.e. beyond what would be expected as ordinary dust/grime)?

Those seem to be where the property was pretty well trashed, looking at the costs of cleaning.

Here's some more, with more details - and not always where the landlord wins the claim but gets expenses for cleaning from the deposit.

DR1393/2008 - decision made August 2009
The Respondent Landlord shall pay the total sum of €3,746.77 to the Applicant Tenants, within 7 days of the date of issue of this Order, being the balance of the deposit of €2,100, having deducted €153.23 for cleaning costs, plus €1,800 damages for wrongly withholding the security deposit, in respect of the tenancy ....

DR1447/2007 - decision made April 2009
The Respondent Tenants shall pay €1,690.30 to the Applicant Landlord within 21 days from the date of issue of this Order being the balance of €2,050.71 for nine weeks rent, €490 for travel and time expenses and €199.60 for bills and cleaning, having deducted €1,050 being the retained security deposit in respect of the tenancy of the dwelling at ....

DR491/2008 decision made April 2009
The Respondent Landlord shall pay €90 to the Applicant Tenants within seven days from the date of issue of this Order, being the balance of the security deposit of €1,500 having deducted €1,300 already refunded to the Applicant Tenants and €110 for cleaning in excess of normal wear and tear in respect of the tenancy of the dwelling at ...

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