PRTB query

Doriath

Hi guys,

I have a question I could use your advice with.

I'm currently renting a property in Carlow with a group of people(its a student accommodation, we are paying for rooms individually). My problem is the landlord enters the property with little notice given. Like today we were told at 1pm there would be a viewing at 5pm.

This really bothers me. I've been working full time and living independently for the past few years, I'm used to paying rent on time and that being the end of it. I have talked to the landlord about it previously and was told if i dislike it I should move out.

I cant afford to lose the deposit and quiet frankly am furious at being treated this way. I can understand that many students arnt used to living away from home and might not mind as much but I find this ridiculous!

Problem is I dont like involving the PRTB about this as it seems like it is wasting their time. Im sure they have enough to deal with, with illegal evictions, violent tenants and all, my issue seems minor in comparison.

Can anyone think of what best to do in this situation, i dont want to be unreasonable but the landlord doesnt seem to be taking my concerns seriously.

Any advise would be appreciated.

Ad

odds_on

By entering the property without your consent, the landlord is in breach of his obligations by denying you "to enjoy peaceful and exclusive occupation of the dwelling", under section 12, 1 (a) of the Landlord's Obligations as set out in the Residential tenancies Act 2004.

As you are sharing the property, each tenant with their own lease, you have exclusive occupation of your bedroom and shared exclusive occupation of other facilities such as kitchen, living-room and all other common areas. Shared exclusive use of common areas only apply to "occupants" of the property and does not allow the landlord to "come and go" as he pleases.

Firstly, you must advise the landlord that he is in breach of his obligations and that he should desist from doing so, so that he can remedy the breach. Advise the landlord in writing (keep a copy) that he is in breach of his obligations and that if he continues to do so, you will make a claim with the PRTB for damages for denying you peaceful occupation of the property.

Ensure that one of the other tenants has not consented to the landlord entering the property. If he continues to enter without the tenants' consent, you can do either or both of the following:
1. Give 28 days notice (written) to terminate your tenancy if you wish to leave.
2. Make a claim with the PRTB for damages for his breach of obligations. Awards for breaching the peaceful and exclusive occupation" of a tenant's rights are often in the thousands of euros.

Doriath

Hi odds_on,

We all co-signed the same lease but are paying by the room(rented by the landlord individually), would that make any difference?

Kind regards,

Ad

odds_on

If all tenants signed the same lease, the property is clearly and without doubt entirely for the tenants exclusive occupation and any unagreed entry by the landlord or his agent (except in the case of emergencies, such as burst pipes, fire etc) is completely contrary to the residential tenancies Act and the landlord is in breach of his obligations.

If there is a room to be filled with another tenant, the landlord must first make an appointment with you for viewing.

I should point out that as you have all signed the same lease, you are all "jointly and severally" liable for the rent and any other out-goings and the landlord, if he is not receiving the full rent for the property, would expect, and can claim from the occupying tenants to make up any shortfall.

Milk & Honey

odds_on wrote: »

If all tenants signed the same lease, the property is clearly and without doubt entirely for the tenants exclusive occupation and any unagreed entry by the landlord or his agent (except in the case of emergencies, such as burst pipes, fire etc) is completely contrary to the residential tenancies Act and the landlord is in breach of his obligations.

If there is a room to be filled with another tenant, the landlord must first make an appointment with you for viewing.

I should point out that as you have all signed the same lease, you are all "jointly and severally" liable for the rent and any other out-goings and the landlord, if he is not receiving the full rent for the property, would expect, and can claim from the occupying tenants to make up any shortfall.

The op says that he is paying by the room. They all are. It is not obvious that they are all on the same lease. If they are individually renting rooms they are outside the scope of the PRTB.

odds_on

Milk & Honey wrote: »

The op says that he is paying by the room. They all are. It is not obvious that they are all on the same lease. If they are individually renting rooms they are outside the scope of the PRTB.

Hi odds_on,
We all co-signed the same lease but are paying by the room(rented by the landlord individually), would that make any difference?

Kind regards,Ad

If they are individually renting rooms they are outside the scope of the PRTB.

Was it not yourself, Milk and Honey, that pointed me in the direction that where rooms rented individually were no longer considered outside the scope of the PRTB?

Milk & Honey

odds_on wrote: »

Was it not yourself, Milk and Honey, that pointed me in the direction that where rooms rented individually were no longer considered outside the scope of the PRTB?

I have no reason to believe the position set out in the case quoted below has not changed.


Bord Um Thionóntachtaí Cónaithe Príobháideacha
Private Residential Tenancies Board


Tribunal Report



Tribunal Reference Number TR10/DR532&589/2006.
Case Reference Number DR532&589/2005
Date of Hearing
27 April 2006
Nature of Dispute Validity of termination notice
Parties to the Case: Appellant/Applicant/s Name/s Derek Murphy

Respondent/s Name/s
Don Flannery

Address of Rented Dwelling 145 Waterside
Charlotte Quay
Ringsend
Dublin 4

Issues in Dispute

The Tenant challenged the validity of the Termination Notice served by the Landlord and alleging other breaches by the Landlord of his obligations, specifically that the Landlord had intruded uninvited into the Dwelling on a number of occasions, without any adequate warning to the occupants.

The Landlord claimed that the Tenant had failed to vacate the dwelling after a valid termination of the Tenancy, that arrears of rent were due and owing by the Tenant in respect of the month of August 2005, and alleged further breaches by the Tenant of his obligations specifically alleging that the Tenant by his behaviour had caused other Tenants to vacate the Dwelling and that the Tenant failed to keep the Dwelling in a clean and tidy condition.

Procedure

On 22 August 2006, the Tenant made an application pursuant to section 76 of the Residential Tenancies Act 2004 (“the Act of 2004”) to the Private Residential Tenancies Board (“PRTB”) for dispute resolution services challenging the validity of the termination notice served by the Landlord and alleging other breaches by the Landlord of his obligations.

On 25 September 2006, the Landlord also made an application pursuant to section 76 of the Act of 2004 to the PRTB for dispute resolution services claiming that the Tenant had failed to pay arrears of rent, and the Tenant had failed to vacate the dwelling after a valid termination of the Tenancy and alleging other breaches by the Tenant of his obligations.

On 24 November 2005 the PRTB appointed John Lynch (“the Adjudicator”) as adjudicator to hear the disputes.

On 5 December 2005 the Adjudicator held an adjudication hearing at the Offices of the PRTB, Canal House, Canal Road, Dublin 6.

On 6 February 2006, the Landlord appealed the determination of the Adjudicator.

On 15 February 2006 the Tenant appealed the determination of the Adjudicator.

On 3 March 2006 pursuant to s.103 of the Residential Tenancies Act 2004 the Tribunal was appointed by the PRTB to determine the appeals.

On 27 April 2006 the Tribunal Hearing was convened at the Offices of the PRTB, Canal House, Canal Road, Dublin 6.




Facts Agreed by Parties

The following facts were agreed by both Parties:-

• the Landlord and Tenant had entered into a letting agreement in or about the month of December 2003;

• the premises at 145 Waterside, Charlotte Quay, Ringsend, Dublin 4 is an apartment consisting of a reception/dining/kitchen area and three bedrooms;

• pursuant to the agreement made between the Parties in or about the month of December 2003 the Tenant was entitled to exclusive occupation of one bedroom and shared the rest of the facilities in the apartment, including the reception area, dining area, kitchen and bathroom facilities with other occupants;

• the other occupants had separate arrangements and agreements with the Landlord and similarly were entitled to exclusive occupation of their respective bedrooms and shared the rest of the facilities including the reception, dining, kitchen and bathroom facilities with other occupants including the Tenant; and

• in the period from the date on which the Tenant first entered into occupation in January 2004 to date there had been a number of occupants who had shared the apartment, with the Tenant;

• the Tenant had put a lock onto his bedroom and the Landlord had removed the lock.


The Law

Section 3 of the Act of 2004 sets out the scope of application of Act in the following terms:

3.—(1) Subject to subsection (2), this Act applies to every dwelling,
the subject of a tenancy (including a tenancy created before the
passing of this Act).


Section 76 of the Act of 2004 grants a right of referral of a dispute to the PRTB by parties to tenancy and certain other persons in the following terms:

76.—(1) Either or both of the parties to an existing or terminated
tenancy of a dwelling may, individually or jointly, as appropriate,
refer to the Board for resolution any matter relating to the tenancy
in respect of which there is a dispute between them.



Section 4 of the Act of 2004 provides the following definitions:

“ dwelling” is defined as meaning “subject to subsection (2), a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel and a vehicle (whether mobile or not);”

‘‘self-contained residential unit’’is defined as including “the form of accommodation commonly known as ‘‘bedsit’’ accommodation;”




Reasons for Decision of the Tribunal

On the facts agreed by the Parties the Tenant was not entitled to occupation of a “self-contained residential unit”.

Under the agreement entered into in December 2003 the Tenant is merely entitled to exclusive occupation of one bedroom and he shares other facilities including the kitchen, bathroom facilities and reception area facilities with other occupants.

The Landlord was of the view that the Tenant was not entitled to put a new lock onto the bedroom door. The Tenant contested this.

It is clear from the evidence that the letting does not come within the definition of “dwelling” as set out in section 4 of the Act of 2004. The shared facilities afforded to the Tenant could not be considered to be a “bed-sit” or any other form of “self-contained residential unit”.

It follows that the relationship between Landlord and Tenant is outside the scope of application of the Act of 2004 and the Tribunal does not have jurisdiction to determine the dispute.















Decision of the Tribunal

The relationship between Landlord and Tenant is outside the scope of application of the Act of 2004 and the Tribunal does not have jurisdiction to determine the dispute.






_______________

James Bridgeman
Chairman
_____________ _____________

Tom Dunne Pat Riney






Dated the May 2006

Doriath

Hey,

Thanks for the replies, this is really interesting.

In the judgement one of the fact agreed by both partie's suggest that:

• the other occupants had separate arrangements and agreements with the Landlord and similarly were entitled to exclusive occupation of their respective bedrooms and shared the rest of the facilities including the reception, dining, kitchen and bathroom facilities with other occupants including the Tenant;

While we pay separately by rooms, one lease was provided which we all signed, in the part where it gave monthly rent "varies by room" was written in. Would this be the same type of agreement as described above?

odds_on

Milk & Honey wrote: »

I have no reason to believe the position set out in the case quoted below has not changed.

Here is a more recent Tribunal case from last year, relevant part quoted, where the tribunal panel came to the conclusion that the case you have quoted was in error.

RESIDENTIAL TENANCIES ACT 2004
Private Residential Tenancies Board Tribunal
Report of Tribunal Reference No: TR168/2011/DR92/2011. Case Ref No: DR92/2011
6.1 Finding:

We find that the Tribunal has jurisdiction to hear this dispute between the Appellant Tenant
and the Respondent Landlord.

Reasons:

(a) The Residential Tenancies Act 2004 applies to every “dwelling” which is the subject
of a tenancy, unless specifically excluded under section 3(2) and 3(3). A “dwelling” is
defined under section 4(1) as “ property let for rent or valuable consideration as a
self-contained residential unit”. There is no definition in the Act of “self-contained
residential unit” other than that a “self-contained residential unit” includes the form
of accommodation commonly known as ‘bedsit’ accommodation”.

The Supreme Court has held that in interpreting words in a statute, if the statute is
directed at the public at large, a word or expression should be given its ordinary or
colloquial meaning: Inspector of Taxes v Kiernan [1981] IR 117. It is the view of the
Tribunal that the ordinary meaning of “self-contained” as regards a unit means –
“containing within itself all parts necessary for completeness” or put another way
“something which is complete on its own and doesn’t need anything else” or
“constituting a complete and independent unit of itself”.

(b) Consequently a “self-contained residential unit” must mean a unit which enables the
person residing there to have all the essentials for living ie for sleeping, washing,
cooking, toiletry and relaxing. The fact that the person does not have an exclusive
right to those facilities, does not render the unit less than a “self-contained residential
unit”. In fact, the word “exclusive” appears in only one section of the 2004 Act
ie section 12(1)(a) which deals with the obligation of the landlord to allow a tenant
to enjoy peaceful and “exclusive occupation” of the dwelling. In our view the words
“exclusive occupation” have to be interpreted as excluding other persons who
have no right to such occupation, rather than “exclusive occupation” being necessary
to create a tenancy to which the 2004 Act applies.
We find as a matter of fact in this case, that the Appellant Tenant had an exclusive
right to occupation of a bedroom and a non-exclusive right to other rooms in the unit
ie bathroom, kitchen, and living room, which she was required to share with whoever
else might have a right from time to time to exclusive occupation of the other
bedroom. As the Appellant Tenant was paying rent to the Respondent Landlord for
this right, we find as a matter of law that there was a tenancy of a “dwelling” within
the definition of the 2004 Act as it was a “self-contained residential unit” and
consequently the PRTB and this Tribunal has jurisdiction in relation to a dispute in
relation to the tenancy.

(c) This finding of law is supported by the provision in section 4(1) that a “self-contained
residential unit” includes the form of accommodation commonly known as ‘bedsit’
accommodation”. The word “includes” when used in a definition in a statute, has
been held to be a word of extension, so that the ordinary meaning is given in addition
to the meaning in the extension: Attorney General (McGrath) v Healy [1972] IR 393.
There is no definition of “bed-sit” in the 2004 Act. However, the Irish Council for
International Students in their Guide for International Students (2012) in describing
the various forms of accommodation available in Ireland, state:

“ A bed-sit is essentially a single room unit with basic cooking facilities (a
mini-kitchen area), a bed and some additional furniture. Toilet and bathroom
facilities are generally shared with the other occupants of the building though
there may be a self-contained shower”.

While in this Tribunal case, the residential unit was not a “bed-sit”, the inclusion in
the 2004 Act of “bed-sit” accommodation, clearly demonstrates that exclusive
occupation to all parts of a residential unit is not a requirement to bring a tenancy
within the provisions of the 2004 Act.

(d) The case TR08/DR378/2006 cited by the Respondent Landlord as precedent
supporting his contention that the arrangement he had with the Appellant Tenant was
outside the scope of the 2004 Act, is an incorrect reference, as it refers to a dispute
Ajayi v Byrne which did not involve jurisdiction. The other referenced case
TR10/DR532 & 589/2006 Murphy v Flannery is relevant. However this Tribunal
believes that the law is not correctly interpreted in the Murphy case for all the reasons
stated in (a) to (c) above.

The_Conductor

In short- by virtue of providing the tenants with a single lease, for the whole dwelling, even if the actual rent varies according to the bedroom any particular tenant might have, the tenants have a lease for the entire dwelling, and the 2004 act, as ammended, applies.

Had the landlord provided separate leases to the tenants, specifically for bedroom 1/2/3- and it was clear that the shared areas of the property were not for any one person's exclusive use, the landlord would probably have been in the clear.

That the landlord took it upon him or herself to go and find tenants for the bedrooms as they became vacant- is suggestive that the landlord thought they were letting the bedrooms, rather than the apartment- however with their lease arrangement they nullified all of this.

Moral of the story- if you're renting by room- give separate leases, specifying just this. And you are obliged to find new tenants as and when vacancies occur.

If you are letting the property with a single joint lease- all tenants are jointly responsible for the mortgage- and if someone leaves- they need to find a replacement tenant satisfactory to the landlord (and cover the rent for the vacant room until such time as they do).

?

djimi

The bottom line is that you and your housemates have a lease that you all signed, which if it were to go to a PRTB hearing would legally prove that you all rent the property as a unit. How the landlord chooses to collect the rent from you is his own business; this is not a rent a room situation and by getting you all to sign the one lease the landlord has given uo the right to treat the place as a student accomodation.

If you are in any doubt then give Threshold a call and Im sure they will be able to assist you in putting all of this in writing for the landlord in such a way that it leaves him in no doubt of the situation and his legal responsibilitys and boundaries.

odds_on

Doriath wrote: »

Hey,

Thanks for the replies, this is really interesting.

In the judgement one of the fact agreed by both partie's suggest that:

• the other occupants had separate arrangements and agreements with the Landlord and similarly were entitled to exclusive occupation of their respective bedrooms and shared the rest of the facilities including the reception, dining, kitchen and bathroom facilities with other occupants including the Tenant;

While we pay separately by rooms, one lease was provided which we all signed, in the part where it gave monthly rent "varies by room" was written in. Would this be the same type of agreement as described above?

I think that the type of lease that you have - all tenants signed the same lease but each tenant pays the landlord directly, a rent per room is unusual.

My understanding from the quote above, of Tribunal determination TR168/2011/DR92/2011 is that the landlord is in breach of his obligations by entering the property without your permission.

Whether you all had separate leases for your rooms or have a lease for the whole property, the RTA 2004 still protects you all from the landlord entering the property without the express permission of the tenants.

The_Conductor

The deciding factor is whether or not the tenants have exclusive use of the property or not. By signing a single lease- irrespective of the fact that the rent is to be paid on a per-room basis, there is an expectation of exclusive use of the property- the rent-a-room is simply the (bizarre) manner the landlord has chosen to collect the rent. Had the landlord signed separate leases with each person, specifying that they were renting the bedroom for 'x' amount, and had non-exclusive use of the common facilities of the property- it would be a different scenario- and would not fall under the jurisdiction of the 2004 act.

The landlord screwed up here- by using an unusual device for collecting rent from the tenants based on their bedrooms- all the while giving them a common lease for the whole property. The fact that the landlord was taking it upon himself to find new tenants for the vacated bedrooms, serves to underline the fact that he or she- was blissfully unaware of the rights and obligations they had granted the tenants.

Normally in a situation like this the lease would be:

Either- on a per bedroom basis, individual leases for each bedroom, specifying non-exclusive use of common areas (such the sitting room, kitchen, bathroom etc)

or- a single lease for all the tenants- for the property in its entirety- granting them, as a group, exclusive use of the property (in which case they are jointly responsible for the rent- and finding new (acceptable) tenants, should any of the rooms become vacant (and responsible for covering the rent for the vacant rooms, until such time as they are filled).

The landlord screwed up here.

odds_on

smccarrick wrote: »

The deciding factor is whether or not the tenants have exclusive use of the property or not. By signing a single lease- irrespective of the fact that the rent is to be paid on a per-room basis, there is an expectation of exclusive use of the property- the rent-a-room is simply the (bizarre) manner the landlord has chosen to collect the rent. Had the landlord signed separate leases with each person, specifying that they were renting the bedroom for 'x' amount, and had non-exclusive use of the common facilities of the property- it would be a different scenario- and would not fall under the jurisdiction of the 2004 act.

My understanding of the Tribunal determination TR168/2011/DR92/2011 (see last "Quote" below) is that when there are multiple occupants who each have their own lease for their bedroom (exclusive use) and shared use of other facilities (non-exclusive use) with other tenants, this falls within the remit of the PRTB .

This is similar to a bedsit which usually consists of a bedroom cum living-room and cooking facilities which are exclusive to the tenant and share bathroom facilities with other tenants within the property. This is defined as a dwelling which must comply with the RTA 2004, Section 4:

‘‘self-contained residential unit’’ includes the form of accommo-
dation commonly known as ‘‘bedsit’’ accommodation;

TR168/2011/DR92/2011
(b) Consequently a “self-contained residential unit” must mean a unit which enables the
person residing there to have all the essentials for living ie for sleeping, washing,
cooking, toiletry and relaxing. The fact that the person does not have an exclusive
right to those facilities, does not render the unit less than a “self-contained residential
unit”. In fact, the word “exclusive” appears in only one section of the 2004 Act
ie section 12(1)(a) which deals with the obligation of the landlord to allow a tenant
to enjoy peaceful and “exclusive occupation” of the dwelling. In our view the words
“exclusive occupation” have to be interpreted as excluding other persons who
have no right to such occupation, rather than “exclusive occupation” being necessary
to create a tenancy to which the 2004 Act applies.

The_Conductor

Providing the other people who had separate leases for bedrooms were the sole people with access to use the facilities- then I would presume that the opinion quoted is correct. We still however have the anamoly of the landlord taking it on themselves to let the bedrooms, and not the group of people who signed the common lease, as per this instance.

It is a mess- and while it may go to adjudication- god only knows what the outcome might be.

Are the current tenants willing to take responsibility for the dwelling under a single lease- which would include finding satisfactory replacements for people who leave, and a joint and singular responsibility to pay the rent- irrespective of how its broken down?

It sounds like the tenants want to have their cake and eat it- and it also sounds like the landlord made a complete balls of the lease.

djimi

smccarrick wrote: »

It sounds like the tenants want to have their cake and eat it

Strangely that was exactly the term that came into my head to describe the landlord!

The_Conductor

djimi wrote: »

Strangely that was exactly the term that came into my head to describe the landlord!

I can understand why the tenants feel put out by the landlord bringing people over to show off the bedroom- however I totally fail to see how or why the landlord is doing this- if he or she has let the property to a group of people- surely they are responsible for paying rent, in full, and retenanting any bedrooms as they become vacant?

The whole situation is strange and awkard. I hope the landlord learns a lesson on what to do and what not to do- but I genuinely don't think the tenants would win a case based on the strangeness of the situation- it is highly irregular.

Doriath

one thing thats confusing me is what the actual rent is.

From the above it seems myself and the other tenents are renting the whole property, but as the rent is not specified in the lease, would we calculate it by adding up all the room rates?

stuntman

Been following this discussion,
but what is the status of a self-contained room (with a mini-kitchen and own bath room and shower) but is part of the house that owner and family lives in ? This room has it's own separate entrance but also another entrance from kitchen of main house (the part that owner lives in), but is always locked up to provide privacy to the tenant in self-contained room. A rent agreement was was with a title "ensuite room in <address> under rent a room scheme"). The tenant's room receives electricity and hot water from resident owner's meter and boiler, to calculate there is electricity usage measuring device in tenant's room to pay for monthly bills. The tenant uses resident owner's bins.
According to PRTB, this is a dwelling alright, but then it is also part of owner's property in which the owner lives. Revenue grants tax relief under rent-a-room scheme for this kind of property, where such a self-contained room is attached to owner's property. From the start this was built as part of house.

In such a scenario does the house come under PRTB ? PRTB act 2004, part 4, section 25 grants such exemption. does it need to registered with PRTB ? does the tenant

This can be argued either way depending upon who makes the argument, any idea what the legal situation is ? is this property liable under PRTB act or a license agreement ?

What do you think ?

aur

Doriath wrote: »

Hi guys,

I have a question I could use your advice with.

I'm currently renting a property in Carlow with a group of people(its a student accommodation, we are paying for rooms individually). My problem is the landlord enters the property with little notice given. Like today we were told at 1pm there would be a viewing at 5pm.

This really bothers me. I've been working full time and living independently for the past few years, I'm used to paying rent on time and that being the end of it. I have talked to the landlord about it previously and was told if i dislike it I should move out.

I cant afford to lose the deposit and quiet frankly am furious at being treated this way. I can understand that many students arnt used to living away from home and might not mind as much but I find this ridiculous!

Problem is I dont like involving the PRTB about this as it seems like it is wasting their time. Im sure they have enough to deal with, with illegal evictions, violent tenants and all, my issue seems minor in comparison.

Can anyone think of what best to do in this situation, i dont want to be unreasonable but the landlord doesnt seem to be taking my concerns seriously.

Any advise would be appreciated.

Ad

I am in the same situation and he terminated me. I have to move and I filed a complaint to PRTB. Basically you are entitled to do it and if you talk to threshold they would tell you the same. That landlords have no rights to tell you to leave by making a complaint or telling them to not invade your privacy!