Landlord not renewing lease - notice period- deposit

D3PO

TheOldHand wrote: »

How convenient. I hope you get to try that one out at PRTB hearing soon.

D3PO, I beleve it is the case that if a landlord does not serve a valid notice that the tenant can leave without penalty. I'm trying to find some supporting material for this but I'm not sure if in this case the correct notice has been served.

that is incorrect. IF and its unknown incorrect notice has been served then the notice is invalid and the OP could remain until correct notice has been served.

getting incorrect notice does not mean you can leave early.

TheOldHand

MMAGirl wrote: »

Oh you are so close.
Now look up what a lease means in law. Particularly a fixed term lease.

Teach a man to fish.

Ok, I've had enough of this. I will end it once and for all.

PART 4

Security of Tenure

Non-application of Part.

25.—(1) This Part does not apply to a tenancy of a dwelling where the conditions specified in subsection (2) are satisfied if the landlord of the dwelling opts, in accordance with subsection (3), for this Part not to apply to it.

(2) Those conditions are—

(a) the dwelling concerned is one of 2 dwellings within a building,

(b) that building, as originally constructed, comprised a single dwelling, and

(c) the landlord resides in the other dwelling.

(3) A landlord's opting as mentioned in subsection (1) shall be signified in writing in a notice served by him or her on the tenant before the commencement of the tenancy.

(4) This Part does not apply to a tenancy of a dwelling—

(a) if the landlord of the dwelling is entitled, in relation to expenditure incurred on the construction of, conversion into, or, as the case may be, refurbishment of, the dwelling, to a deduction of the kind referred to in section 380B(2), 380C(4) or 380D(2) (inserted by the Finance Act 1999 ) of the Taxes Consolidation Act 1997 , or

(b) if the entitlement of the tenant to occupy the dwelling is connected with his or her continuance in any office, appointment or employment.

Greater security of tenure not affected.

26.—Nothing in this Part operates to derogate from any rights the tenant enjoys for the time being (by reason of the tenancy concerned) that are more beneficial for the tenant than those created by this Part.

These are the only reasons that a part 4 tenancy will not apply. Nothing to do with fixed term leases.


Periods of occupancy before relevant date to be disregarded.

27.—In this Part “continuous period of 6 months” means a continuous period of 6 months that commences on or after the relevant date.

Statutory protection — “Part 4 tenancy” — after 6 months occupation.

28.—(1) Where a person has, under a tenancy, been in occupation of a dwelling for a continuous period of 6 months then, if the condition specified in subsection (3) is satisfied, the following protection applies for the benefit of that person.

(2) That protection is that, subject to Chapter 3, the tenancy mentioned in subsection (1) shall (if it would not or might not do so otherwise) continue in being—

(a) unless paragraph (b) applies, for the period of 4 years from—

(i) the commencement of the tenancy, or

(ii) the relevant date,

whichever is the later,

or

(b) if a notice of termination under section 34 (b) is served in respect of the tenancy giving a period of notice that expires after the period of 4 years mentioned in paragraph (a), until the expiry of that period of notice.

(3) The condition mentioned in subsection (1) is that no notice of termination (giving the required period of notice) has been served in respect of the tenancy before the expiry of the period of 6 months mentioned in that subsection.

(4) Despite the fact that such a notice of termination has been so served, that condition shall be regarded as satisfied if the notice is subsequently withdrawn.

“Part 4 tenancy”— meaning of that expression.

29.—A tenancy continued in being by section 28 shall be known, and is in this Act referred to, as a “Part 4 tenancy”.

odds_on

MMAGirl wrote: »

Oh you are so close.
Now look up what a lease means in law. Particularly a fixed term lease.

Teach a man to fish.

Commercial leases are very different to Residential leases

TheOldHand

D3PO wrote: »

that is incorrect. IF and its unknown incorrect notice has been served then the notice is invalid and the OP could remain until correct notice has been served.

getting incorrect notice does not mean you can leave early.

Shorter notice terms may be given on the landlords site for breaches of tenancy agreements. I've heard of a few cases where a landlord should have given 2-3 months notice but only gave a month and the PRTB accepted the tenant moving out within a week after they found a place. It will require some research on my part, could take a while.

djimi

I would have thought that an invalid notice would simply be considered to be null and void, ie as if it didnt exist? Would it be considered to be a breach of tenancy agreement?

D3PO

TheOldHand wrote: »

Shorter notice terms may be given on the landlords site for breaches of tenancy agreements. I've heard of a few cases where a landlord should have given 2-3 months notice but only gave a month and the PRTB accepted the tenant moving out within a week after they found a place. It will require some research on my part, could take a while.

why are you going off on a tangent ? The OP asked a question could they leave early. The answer is no they cannot.

Even if what you say above has happened (which i dont believe) and you can find the tribunal detail with the decision that does not help the OP.

Lets forget all the specifics of tenancy law for the moment and look at this pragmatically and in what is likely to happen in a real world situation. The landlord in that instance look to withold the deposit or a portion of it under the guise that the tennant left early with rent outstanding. Now the OP can go to the PRTB and if what you say is correct will win the case and be awarded their deposit back when that is heard in 8-9 months time if there lucky.

how does that help them ? they have said they have no money to overlap rent or to pay a deposit on another property right now. So they are still no better off.

if you guys want to go off and discuss notice periods and part 4 start a new thread how about we stick to the original post in this one.

odds_on

TheOldHand wrote: »

Shorter notice terms may be given on the landlords site for breaches of tenancy agreements. I've heard of a few cases where a landlord should have given 2-3 months notice but only gave a month and the PRTB accepted the tenant moving out within a week after they found a place. It will require some research on my part, could take a while.

For breach of obligations, the usual notice period is 28 days (having been preceded by a letter advising of the breach and a request to remedy the breach).

In cases where there is risk of serious injury to persons or property (which is basically serious anti-social behaviour) a notice period of 7 days may be given.

Obviously, with a Part 4 tenancy eviction (using one of the grounds available to a landlord), this would depend on the length of time the tenant has been in occupation, with a maximum of 112 days.

No shorter periods than those set out in the RTA 2004 may be included in any agreement. However, at the time of the notice (issued by either landlord or tenant) the two parties may agree on a shorter or longer notice period (with, I think a maximum of 3 months)

MMAGirl

And with a fixed term lease you have your notice on day one. That's why it's called fixed term. That can change automatically by signing a new lease or by the landlord deciding to just let it run, then part 4 applies.
And if you don't agree try to find a case where the prtb stopped a landlord from taking back their property on expiry of a lease.

TheOldHand

D3PO wrote: »

why are you going off on a tangent ? The OP asked a question could they leave early. The answer is no they cannot.

Even if what you say above has happened (which i dont believe) and you can find the tribunal detail with the decision that does not help the OP.

Lets forget all the specifics of tenancy law for the moment and look at this pragmatically and in what is likely to happen in a real world situation. The landlord in that instance look to withold the deposit or a portion of it under the guise that the tennant left early with rent outstanding. Now the OP can go to the PRTB and if what you say is correct will win the case and be awarded their deposit back when that is heard in 8-9 months time if there lucky.

how does that help them ? they have said they have no money to overlap rent or to pay a deposit on another property right now. So they are still no better off.

if you guys want to go off and discuss notice periods and part 4 start a new thread how about we stick to the original post in this one.

You shouldn't speak definitively about things. And **** off with the modding, I don't see any mod titles to your name.

D3PO

TheOldHand wrote: »

You shouldn't speak definitively about things. And **** off with the modding, I don't see any mod titles to your name.

do you understand comprehension ? where have i said anything definitively except that the OP cannot leave early without agreement. That is FACT and if you disagree prove it. (Im telling you that you cannot) All your posts are in the context of the opening post waffle.

none of them have a bearing on the ops prediciment. Its just a load of pointless part 4 discussion that has no place in this thread.

oh and a bit of advise to you as a newbie who only signed up today. Cut the abuse unless you want a short lived time on this forum. Thats not modding its fact.

TheOldHand

The answer is no.

There.

D3PO

TheOldHand wrote: »

There.

prove me wrong so. :rolleyes:

The_Conductor

You're skating on thin ice- esp. using language like that.
Please read the forum charter, if you intend to continue posting here.

To everyone- its not hard to remain civil towards one another- if you disagree with what someone posts- refute the post without attacking the poster.

No further warnings- next person who acts the Mick will get a posting holiday.

Regards,

SMcCarrick

The_Conductor

D3PO wrote: »

prove me wrong so. :rolleyes:

Quit with the tit-for-tat, you're not going to achieve anything other than point scoring against one another- and if you want to do that- please take it elsewhere.

Regards,

SMcCarrick

Jo King

A fixed term lease does not mean that Part 4 rights do not become applicable after 6 months. It is not permitted to contract out of the mandatory provisions of the RTA and so a fixed term lease cannot oust Part 4. Agreeing to a tenancy for a year does not mean that the parties contract out of their part 4 rights.
There is no case of a landlord walking in the door on the expiry of a fixed term and taking possession without the tenant in occupation agreeing. There is no case where a landlord made a successful claim for overholding without having issued a termination notice.

sunnysoutheast

Jo King wrote: »

A fixed term lease does not mean that Part 4 rights do not become applicable after 6 months. It is not permitted to contract out of the mandatory provisions of the RTA and so a fixed term lease cannot oust Part 4. Agreeing to a tenancy for a year does not mean that the parties contract out of their part 4 rights.
There is no case of a landlord walking in the door on the expiry of a fixed term and taking possession without the tenant in occupation agreeing. There is no case where a landlord made a successful claim for overholding without having issued a termination notice.

Can the landlord issue the termination notice to coincide with the end of the one year fixed lease, or can the termination notice only be issued once the fixed term has expired?

That is the question for which I don't recall ever seeing a definitive, traceable answer. Many people have an opinion but that is not the same thing.

Effectively, therefore, a landlord should not sign a new lease with a prospective tenant until the in-situ tenant has physically vacated the property, due to the risk of overholding under part IV?

djimi

sunnysoutheast wrote: »

Can the landlord issue the termination notice to coincide with the end of the one year fixed lease, or can the termination notice only be issued once the fixed term has expired?

That is the question for which I don't recall ever seeing a definitive, traceable answer. Many people have an opinion but that is not the same thing.

Effectively, therefore, a landlord should not sign a new lease with a prospective tenant until the in-situ tenant has physically vacated the property, due to the risk of overholding under part IV?

There seems to be some confusion over this one. I think I remember reading even Threshold werent entirely sure of the answer. My personal feeling is that notice cannot be issued during a fixed term lease, but that is literally just my opinion based on how I read the law. Id love to see a definitive answer to this though.

TheOldHand

I can't see any reason why notice could not be issued during the fixed term. The landlord has acted within the terms of notice required to end a part four tenancy based on reasons and notice periods.

djimi

To be honest I could see arguements for and against either side of that particular debate; its why Id love to see a definitive ruling one way or another.

The_Conductor

Your (and indeed your landlord's) rights in a fixed term lease, are in addition to, but do not supercede, any rights you have under the 2004 Act. By signing a Fixed Term Lease- you are signing a contract between you and the landlord, and subject to the terms and conditions of the specific lease, may or may not have break clauses in the lease, specifying how and when either party can vacate the lease, outside of the natural elapse of the lease.

If you break a fixed term lease, or your landlord does, outside of any break clauses- it is a civil matter between you and your landlord, and while either party could compel the other party to court, and indeed have a judgement registered against them- its incredibly rare with residential tenancies (very common with commercial leases though).

So- you are signing up to obligations separate to, and in addition to, any obligations or rights you may have under the 2004 Act, when you sign a fixed term lease. Yes, its legally binding. How enforceable is it- in practical terms, its rarely worth anyone's while and trouble to initiate legal proceedings, and its only very rarely done.

Jo King

smccarrick wrote: »

Your (and indeed your landlord's) rights in a fixed term lease, are in addition to, but do not supercede, any rights you have under the 2004 Act. By signing a Fixed Term Lease- you are signing a contract between you and the landlord, and subject to the terms and conditions of the specific lease, may or may not have break clauses in the lease, specifying how and when either party can vacate the lease, outside of the natural elapse of the lease.

If you break a fixed term lease, or your landlord does, outside of any break clauses- it is a civil matter between you and your landlord, and while either party could compel the other party to court, and indeed have a judgement registered against them- its incredibly rare with residential tenancies (very common with commercial leases though).

So- you are signing up to obligations separate to, and in addition to, any obligations or rights you may have under the 2004 Act, when you sign a fixed term lease. Yes, its legally binding. How enforceable is it- in practical terms, its rarely worth anyone's while and trouble to initiate legal proceedings, and its only very rarely done.

In a tenancy subject to the Residential Tenancies Act any dispute must be referred to the PRTB and not to court unless damages of more than €60k are sought.

Jo King

TheOldHand wrote: »

I can't see any reason why notice could not be issued during the fixed term. The landlord has acted within the terms of notice required to end a part four tenancy based on reasons and notice periods.

A landlord cannot terminate a tenancy during a fixed term. Some adjudicators in the PRTB have interpreted that to mean a valid notice of termination cannot be delivered during the fixed term. It has not been challenged yet.

MMAGirl

Your notice of termination is on the lease you signed. If you sign a 1 year lease that means the lease ends after a year. All parties know this on signing the lease. If the lease is extended then its extended. If nothing happens then its a part 4. But you can certainly be required to move out at the end of the lease.

odds_on

TheOldHand wrote: »

I can't see any reason why notice could not be issued during the fixed term. The landlord has acted within the terms of notice required to end a part four tenancy based on reasons and notice periods.

To be honest I could see arguements for and against either side of that particular debate; its why Id love to see a definitive ruling one way or another.

I am with TheOldHand on this one as I have stated and my reason for believing so, in post#12 (page 1) of this thread.

To that post, I would add that a landlord may issue a valid NoT towards the end of a Part 4 tenancy (thus requiring 112 days notice). That NoT does not come into effect on the expiry of the Part 4 tenancy but must continue its full notice period thus allowing the commencement of a Further Part 4 tenancy. If a valid Not can be issued during one tenancy (Part 4) and expire during a subsequent tenancy (Further Part 4) then surely a valid NoT may be issued during a Fixed term agreement to take effect by way of termination after the expiry of the Fixed term.

A landlord cannot terminate a tenancy during a fixed term. Some adjudicators in the PRTB have interpreted that to mean a valid notice of termination cannot be delivered during the fixed term. It has not been challenged yet.

While it is acknowledged that a landlord cannot terminate a tenancy during the fixed term (except for breach of obligations by the tenant) the question is, can a valid Notice of Termination be issued during a fixed term agreement, that NoT to terminate a tenancy which under Part 4 rights can commence on the expiry of the fixed term or must the landlord wait until the fixed term has expired before he can issue a valid NoT.

It is a pity that the way the PRTB make their adjudications available online, one cannot use a search engine to try to find an adjudication on this or any particular subject.

Jo King

MMAGirl wrote: »

Your notice of termination is on the lease you signed. If you sign a 1 year lease that means the lease ends after a year. All parties know this on signing the lease. If the lease is extended then its extended. If nothing happens then its a part 4. But you can certainly be required to move out at the end of the lease.

A notice of termination must be in a specified format and must be served in a particular manner. No standard lease would have the correct clauses nor would it be served in the correct manner.
The Act does not allow contracting out of the provisions of Part 4 in any case.
54.—(1) No provision of any lease, tenancy agreement, contract or other agreement (whether entered into before, on or after the relevant date) may operate to vary, modify or restrict in any way a provision of this Part.
There is no case in the PRTB database where a landlord has had tenants moved out for overholding after a fixed term lease. In all cases the Landlord has to issue a notice of termination and comply with Part 4.

odds_on

Jo King wrote: »

A notice of termination must be in a specified format and must be served in a particular manner. No standard lease would have the correct clauses nor would it be served in the correct manner.
The Act does not allow contracting out of the provisions of Part 4 in any case.
54.—(1) No provision of any lease, tenancy agreement, contract or other agreement (whether entered into before, on or after the relevant date) may operate to vary, modify or restrict in any way a provision of this Part.
There is no case in the PRTB database where a landlord has had tenants moved out for overholding after a fixed term lease. In all cases the Landlord has to issue a notice of termination and comply with Part 4.

Absolutely agree.

For a landlord to evict / regain possession of his property if the tenant wishes to remain, the only way is by issuing a valid NoT. If the tenant does not wish to remain, there is no problem and a fixed term tenancy expires on the expiry date in the agreement.

odds_on

MMAGirl wrote: »

Your notice of termination is on the lease you signed. If you sign a 1 year lease that means the lease ends after a year. All parties know this on signing the lease. If the lease is extended then its extended. If nothing happens then its a part 4. But you can certainly be required to move out at the end of the lease.

Read the following PRTB Tribunal decision:
Report of Tribunal Reference No: TR98/DR900/2010
The Respondent Tenant after six months was entitled to get the benefits of Part 4 of the 2004 Act insofar as they benefited him over and above the rights he had under the fixed term. He was entitled to remain on after the fixed term. He was required to give the Appellant Landlord statutory notice of this intention not later than one month before the fixed term tenancy expired – reference section 195 of the 2004 Act. The Respondent Tenant did not give notice of this intention.
However such failure did not mean that he forfeited his right to a Part 4 tenancy. Rather it gave rights to the Appellant Landlord in relation to costs he may have incurred by reason of the failure of the Respondent Tenant to give such notice.

MMAGirl

odds_on wrote: »

Read the following PRTB Tribunal decision:
Report of Tribunal Reference No: TR98/DR900/2010
The Respondent Tenant after six months was entitled to get the benefits of Part 4 of the 2004 Act insofar as they benefited him over and above the rights he had under the fixed term. He was entitled to remain on after the fixed term. He was required to give the Appellant Landlord statutory notice of this intention not later than one month before the fixed term tenancy expired – reference section 195 of the 2004 Act. The Respondent Tenant did not give notice of this intention.
However such failure did not mean that he forfeited his right to a Part 4 tenancy. Rather it gave rights to the Appellant Landlord in relation to costs he may have incurred by reason of the failure of the Respondent Tenant to give such notice.

I really wish people would read their own links properly.

Kosseegan

MMAGirl wrote: »

I really wish people would read their own links properly.

I wish people would read the Residential Tenancies Act.

MMAGirl

Kosseegan wrote: »

I wish people would read the Residential Tenancies Act.

Me too.