Tenant rights when receivers are selling a repossessed property (fixed term lease?)

Cait_00

The property we are living in has been repossessed by the bank and a receiver has been appointed who have put the property on the market for sale.

However, our lease in not with the original landlord as we are subletting from a property management company .

We signed a lease with the management company last April and it clearly states that it is a 12 month term which will terminate in April 2013. Can anyone tell me if this is considered a fixed term lease and if it is do the receivers have any right to terminate our lease before April 2013? (They have told us that if the house sells before April 2012 we will be given the required notice under the Residential Tenancies Act 2004.

Also, the receivers and estate agents have now asked for us to allow viewings up to three times a week. Are we obliged to do so under our lease agreement, whether it is a fixed or Part 4 lease?

Milk & Honey

Unless the bank consented to the lease in writing they are not bound by it. You do not have to allow viewings as this is a breach of your rights to quiet enjoyment. You should try and negotiate a move from the property with compensation for the early move.

Victor

Cait_00 wrote: »

However, our lease in not with the original landlord as we are subletting from a property management company .

This sounds odd. The likelihood is that the property management company was acting as agent for the landlord.

Can anyone tell me if this is considered a fixed term lease

It would appear so. This gives you the protection of the lease and the act.

and if it is do the receivers have any right to terminate our lease before April 2013?

Unless there is a break clause in the lease, it would appear not. If there is a break clause, they need to giver you the notice in the lease or the act - whichever is longer. If only the act applies, then the could give you notice of about 5-6 weeks (check the act)

Also, the receivers and estate agents have now asked for us to allow viewings up to three times a week. Are we obliged to do so under our lease agreement, whether it is a fixed or Part 4 lease?

No. Consider using this as a bargaining lever. Consider asking for payment to cover cleaning, attendance, nuisance, etc. for viewings. Note that security is also an issue.

Alternatively, negotiate an exit, asking for a payment for the both of having to find somewhere else and moving.

Milk & Honey

Victor wrote: »

Unless there is a break clause in the lease, it would appear not. If there is a break clause, they need to giver you the notice in the lease or the act - whichever is longer. If only the act applies, then the could give you notice of about 5-6 weeks (check the act)

.

A receiver is not bound by a lease unless the bank agreed to it in writing, which is most unlikely. The act may not even apply in some circumstances, e.g. if the receiver does not charge rent.

Bigcheeze

Milk & Honey wrote: »

A receiver is not bound by a lease unless the bank agreed to it in writing, which is most unlikely. The act may not even apply in some circumstances, e.g. if the receiver does not charge rent.

As the lease was in place before the receiver was appointed then yes the receiver is bound by it.

odds_on

Bigcheeze wrote: »

As the lease was in place before the receiver was appointed then yes the receiver is bound by it.

But was the lease agreement not make under misrepresentation - the owner did not have legal permission from the mortgage company to rent the property?

GerardKeating

odds_on wrote: »

But was the lease agreement not make under misrepresentation - the owner did not have legal permission from the mortgage company to rent the property?

Maybe, Maybe not, it could have been a buy to let mortgage ???

djimi

Dont you have to inform your mortgage lender when you intend to rent out a property? Assuming they did (and I know its not exactly a fair assumption to make) wouldnt that constitute the lender agreeing to the rental? Or would they have to be bound to the actual lease signed?

Bigcheeze

odds_on wrote: »

But was the lease agreement not make under misrepresentation - the owner did not have legal permission from the mortgage company to rent the property?

Well the bank can take that up with the former owner. It doesn't invalidate the lease.

Anyway this is all off topic. The receiver isn't claiming the lease is invalid.

Milk & Honey

Bigcheeze wrote: »

As the lease was in place before the receiver was appointed then yes the receiver is bound by it.

That is not the law.

from Megarry and Wade, ‘Law of Real Property’ , 7th Ed., at para. 25-080, a passage which referred to leases granted outside the statutory power, wherein it was stated as follows: “If the power is excluded and the mortgagor nevertheless grants an unauthorised lease, the lease is void against the mortgagee and his successors in title (unless they are estopped from asserting this), but valid as between the parties to it. The statutory powers of leasing do not deprive the parties of their common law rights to create leases not binding upon each other

Marcusm

Milk & Honey wrote: »

That is not the law.

from Megarry and Wade, ‘Law of Real Property’ , 7th Ed., at para. 25-080, a passage which referred to leases granted outside the statutory power, wherein it was stated as follows: “If the power is excluded and the mortgagor nevertheless grants an unauthorised lease, the lease is void against the mortgagee and his successors in title (unless they are estopped from asserting this), but valid as between the parties to it. The statutory powers of leasing do not deprive the parties of their common law rights to create leases not binding upon each other

If the receiver appointed by the mortgagee collects the rent and has not formally repudiated the lease within a reasonable period of time, would this not give grounds for estoppel on the basis that they have, by their actions, consented to the lease?

Milk & Honey

Bigcheeze wrote: »

Well the bank can take that up with the former owner. It doesn't invalidate the lease.

Anyway this is all off topic. The receiver isn't claiming the lease is invalid.

He has not adopted the lease, he is treating the situation as a part 4 tenancy.

Marcusm

Milk & Honey wrote: »

He has not adopted the lease, he is treating the situation as a part 4 tenancy.

The geek in me would like to see a detailed reasoning for this position; if the receiver/mortgagee does not see himself as bound by the lease or recognise its existence, it's hard to see that it has a clear basis to continue receiving the rents or regard it as a part 4 tenancy - there is a chicken/egg analogy. I ave seen any Irish (and English) law legal opinions on the effect of the appointment of a receiver but I don't think any considered a cafeteria approach where the receiver could accept all or certain benefits and disclaim other aspects of the contract.

Irrespective of the true legal analysis, the OP lives in the real world. In order to bring a little light on the situation, he/she should consider writing formally tothe gent (cc te receiver) denying any viewings but inviting the agent to exercise inspection rights and to discuss a mutually satisfactory position wrt termination r continuation. If a sale has not been agreed at this stage it will get deferred Until the NEw Year at the earliest (given overhang of mortgage interest relief cases and Christmas slowdown) such that there should be ample capacity for compromise. Earlier in the year I waspurchasing a tenanted property and the mortgagee (with whom I had direct contact) was very willing to offer inducements to remove the tenants.

Victor

Marcusm wrote: »

If a sale has not been agreed at this stage it will get deferred Until the NEw Year at the earliest (given overhang of mortgage interest relief cases and Christmas slowdown) such that there should be ample capacity for compromise.

I'm guess the receiver would really, really like to sell between now and 31 December.

Milk & Honey

Marcusm wrote: »

The geek in me would like to see a detailed reasoning for this position; if the receiver/mortgagee does not see himself as bound by the lease or recognise its existence, it's hard to see that it has a clear basis to continue receiving the rents or regard it as a part 4 tenancy - there is a chicken/egg analogy. I ave seen any Irish (and English) law legal opinions on the effect of the appointment of a receiver but I don't think any considered a cafeteria approach where the receiver could accept all or certain benefits and disclaim other aspects of the contract.

Irrespective of the true legal analysis, the OP lives in the real world. In order to bring a little light on the situation, he/she should consider writing formally tothe gent (cc te receiver) denying any viewings but inviting the agent to exercise inspection rights and to discuss a mutually satisfactory position wrt termination r continuation. If a sale has not been agreed at this stage it will get deferred Until the NEw Year at the earliest (given overhang of mortgage interest relief cases and Christmas slowdown) such that there should be ample capacity for compromise. Earlier in the year I waspurchasing a tenanted property and the mortgagee (with whom I had direct contact) was very willing to offer inducements to remove the tenants.

The receiver is not bound by the lease but he is bound by the statutory protections applicable to tenants, if there are tenants in occupation when he starts to manage the property. Deasy's Act will infer a tenancy and then the RTA 2004 kicks in.

The_Conductor

OP- the fixed term lease is *not* applicable.
Legally you are living in the dwelling under a Part 4 tenancy.
None of the terms in the lease apply- only terms as they pertain to a Part 4 tenancy, as defined by the 2004 Residential Tenancies Act.

At this point in time- if you are still paying your rent to the original agent- I would be clarifying with the landlord, whether this is applicable, as you don't want any nasty surprises down the road.