I'm late 11 days with rent and landlord emails me a "Notice of Eviction"

SwissK

Hello,

I have been renting a house for 7 months now (lease started 26th Oct. 2012), I always paid the rent. My lease was suppose to be for 12 months, however we had a break in in April and I was badly assaulted by the person who broke in and I ended up in the hospital. My fiance freaked out and said she wants to leave here as she feel no longer save. I contacted the Landlord and told him what happend.
He agreed to break the lease early and we could move out on July 13th rather than September. As a penalty for terminating the lease early, he asked us to move out 2 weeks before the end of the month but still pay for that full last month. I agreed on that as it seemed fair, plus he was always really friendly person and I felt bad that we want to move out already.

Now unfortunately 1 month before moving out, the company I work for (a small franchise) had internal problems which caused a delay with some payments. My salary payments are delayed by 14 days.
I have forwarded that information to the landlord. I told him there will be a delay of my rent by 14 days and I apologize for that, unfortunately there is not much I can do. I also told him that the very second I get my paycheck, I will go to the bank and pay the rent.

I never had any trouble with the landlord and he was always super friendly to me.

But now that I have told him I will be 14 days late with the rent, I received an email back from him saying the following:

Thank you for your email and I am sorry to hear that you are having difficulties. However, I have a mortgage to pay on the house and since the rent is now eleven days overdue, I have no choice but to serve you with Notice of Eviction, with notice effective as of today, 6th June 2013.

My agent will serve notice in writing at [MY ADDRESS] in the coming days. I also wish to notify you my agents will require access to the above property and that I will advise you by email 24 hours in advance.

I am shocked... 11 days late and he wants to kick me out of the house?

I explained to him that I will be 14 days late, and there is really nothing I can do.
Our lease is also up in exactly 5 weeks (13th July).

Seeing that he wants to evict us on a basis of being 11 days late rent pay, just 5 weeks before we move out anyway, seems very fishy to me.

My question is what can he actually do? Can he come over to the house and kick us out? Or if we would be evicted, does that mean he does not need to pay us back our deposit?

ted1

Honestly I see a lot if excuses in your post, but the bottom line is its your responsibility to pay your rent on time. None of you business is relevant to the landlord, he really doesn't and shouldn't care what is going on in your life.

Eviction is a result of not paying rent.

drunkmonkey

Your hardly going to pay the rent if he's evicting you for not paying the rent so you've saved some rent and you were moving out anyway. Kind of a win win for you.

SwissK

I am aware of that, and I fully understand the pain of him needing to pay the mortgage and having me as a tenant who pays the rent late. I apologised in advance to the landlord for that and told him I will be 14 days late, however seeing that we move out in 35 days anyway, it seems unnecessary to go to all that trouble for an eviction, unless he gains something from it. That is why I am asking what he could possibly get ouf of this?

As I said, I am aware that I am in the wrong here about being late with my rent, but this is not what I am asking. I am not asking who is in the right or wrong, from what I read a landlord can send out a notice of eviction at any time as it's his property.

But my question is, does a notice of eviction give him some sort of right not to pay us back the deposit? Or why would he do that in the first place, considering he needs to give us 28 days notice, but we are leaving in 35 days. It just doesn't add up. I don't want to be surprised with some sort of legal chatter about not paying back the deposite on grounds of eviction and one time 14 days late with rent.

LowKeyReturn

SwissK wrote: »

I am aware of that, and I fully understand the pain of him needing to pay the mortgage and having me as a tenant who pays the rent late. I apologised in advance to the landlord for that and told him I will be 14 days late, however seeing that we move out in 35 days anyway, it seems unnecessary to go to all that trouble for an eviction, unless he gains something from it. That is why I am asking what he could possibly get ouf of this?

As I said, I am aware that I am in the wrong here about being late with my rent, but this is not what I am asking. I am not asking who is in the right or wrong, from what I read a landlord can send out a notice of eviction at any time as it's his property.

But my question is, does a notice of eviction give him some sort of right not to pay us back the deposit? Or why would he do that in the first place, considering he needs to give us 28 days notice, but we are leaving in 35 days. It just doesn't add up. I don't want to be surprised with some sort of legal chatter about not paying back the deposite on grounds of eviction and one time 14 days late with rent.

I'm not sure about the deposit. My understanding is it's only to cover if there is damage / broken lease without agreement. That said a friend did everything right when she broke her lease (new tenant etc.) LL seemed fine until it was time to give the deposit back.

On the eviction - he needs to cover himself - he doesn't know what you're up to. I'd issue an eviction notice as well.

SwissK

drunkmonkey wrote: »

Your hardly going to pay the rent if he's evicting you for not paying the rent so you've saved some rent and you were moving out anyway. Kind of a win win for you.

Hmm... why wouldn't I? I never intended not to pay the rent. As i told my landlord, I will simply be 14 days late and then suddenly I receive the above email.
I don't want to play games with my landlord. He has always been super friendly, seems like an honest person and I have nothing against him, except for this email from him now, which makes me question if he's up to something.

LowKeyReturn wrote: »

I'm not sure about the deposit. My understanding is it's only to cover if there is damage / broken lease without agreement. That said a friend did everything right when she broke her lease (new tenant etc.) LL seemed fine until it was time to give the deposit back.

On the eviction - he needs to cover himself - he doesn't know what you're up to. I'd issue an eviction notice as well.

Alright, so it's more of an official thing incase he thinks I would run away or not pay my rent at all just before I move out?
I'm starting to understand. Maybe he thinks the same of me as I just did of him. Looking at it from his perspective that the very last month his tenant sends him an email saying he's late with rent just before moving out, might sound fishy to him.

But then again, sending out a 28 days notice just 35 days before moving out doesn't really give him any security.

LowKeyReturn

I can't really say but it's best to do things by the book. Perhaps give him a call and ask him about the deposit. Let us know how you get on and someone more knowledgeable than I can perhaps recommend how to proceed.

SwissK

I just read the following on http://www.keepingyourhome.ie/if_your_landlord_wants_you_to_leave.html

If you do not pay your rent a notice of termination may be served, only if the rent due has still not been paid 14 days after you get written notification from your landlord of the amount owing.

Since he already sent out an email saying the email serves as notice of eviction, I wonder if it is legal what he does. It's not like I will be a pain in the ass towards him, as I said he has always been a very friendly person and I will respect all his wishes.
But for the sake of the situation and the legal matter, do I understand the above quote correctly, that first he needs to send me a written notification saying my rent is late, and only 14 days after he has sent that notification, he can then issue a letter of eviction, which says he wants us to leave in 28 days?

Secondly, what is defined as written notification? Does that include email and text message?

LowKeyReturn

E-mail is probably covered but I'm just guessing on a passing knowledge of the e-commerce act which might have absolutely no bearing.

crazy_kenny

I'd contact the prtb.

D3PO

he cannot issue a notice of eviction. he must first issue you with a notice of arrears. if the arrears are not cleared in 14 days then he can issue a notice of eviction.

given your leaving your lease early and then all of a sudden not paying rent he probably thinks you are pulling a fast one. that said he must follow due course which he is not doing as described above.

the_syco

D3PO wrote: »

given your leaving your lease early and then all of a sudden not paying rent he probably thinks you are pulling a fast one. that said he must follow due course which he is not doing as described above.

Agreed. I'm thinking the landlord got burnt before, and is issuing what he may think is the correct process to follow. Get advice from Threshold, and rely the info onto the landlord?

djimi

D3PO wrote: »

he cannot issue a notice of eviction. he must first issue you with a notice of arrears. if the arrears are not cleared in 14 days then he can issue a notice of eviction.

given your leaving your lease early and then all of a sudden not paying rent he probably thinks you are pulling a fast one. that said he must follow due course which he is not doing as described above.

This. Politely inform him that it is in his interest to go off and research how to carry out an eviction legally, to prevent him from making a costly mistake in future when someone takes a case against him for illegal eviction.

Zulu

Were you ever late with the rent previously? I note you mention you always paid, but don't mention if you paid when due.

Frankly, if I were your landlord, I'd be thinking you are trying to pull a fast one on your last month. As you agreed, when you look at it from his perspective, it looks that way. Perhaps, as opposed to trying to second guess each other, and determine what "rights" you have - RING HIM.

Ring him and tell him you'll have the rent in his account as mentioned on the day you said (and do it). Ask him about the notice of eviction. Ask him if he's just covering himself, or does he expect you to be gone prior to the previously agreed date. It's only when you talk, that you'll fully understand his intentions. Then you can work out what to do.

Zulu

djimi wrote: »

This. Politely inform him that it is in his interest to go off and research how to carry out an eviction legally, to prevent him from making a costly mistake in future when someone takes a case against him for illegal eviction.

While you'd be within your rights to do this, you have to ask yourself: is it the right thing to do now?
Frankly I'd imagine it'll only serve to worsen relations; fuel to the fire and all that. First port of call is to find out if he wants you gone prior to the agreed date. Then, if that is indeed the case, remind him that he can't do that and ring the PRTB.

djimi

Zulu wrote: »

While you'd be within your rights to do this, you have to ask yourself: is it the right thing to do now?
Frankly I'd imagine it'll only serve to worsen relations; fuel to the fire and all that. First port of call is to find out if he wants you gone prior to the agreed date. Then, if that is indeed the case, remind him that he can't do that and ring the PRTB.

Does it really matter at this stage? The OP is only going to be there for another few weeks either way. Im not talking about screaming in his face and threatening legal action; Im simply suggesting that it might be an idea to politely suggest that look into his legal obligations and not go about throwing around illegal eviction notices that might prove costly if done to the wrong tenant.

Zulu

djimi wrote: »

Does it really matter at this stage? The OP is only going to be there for another few weeks either way...

Well thats kinda my point! Why create a confrontation when it might be needless?

If (s)he approaches the landlord with a "your eviction notice is invalid", be it polite or otherwise, the LL is going to assume that the tenant is pulling a fast one, and is planning on staying longer (rent free). It's simply fuel to the fire.

odds_on

D3PO wrote: »

he cannot issue a notice of eviction. he must first issue you with a notice of arrears. if the arrears are not cleared in 14 days then he can issue a notice of eviction.

given your leaving your lease early and then all of a sudden not paying rent he probably thinks you are pulling a fast one. that said he must follow due course which he is not doing as described above.

It took to the 11th post by D3PO, before a correct answer was given to the OP's question.

A landlord cannot issue a valid notice of termination for arrears of rent without first serving a 14 days notice of rent arrears. Furthermore, a valid Notice of Termination cannot be served by email as it would not comply with the requirements of a NoT, which require, among other things, the signature of the landlord.

I would be inclined to follow djimi's advice and point out politely to the landlord that his notice is invalid. Do this firstly, verbally if on reasonably terms with the LL and followed up by a written letter (keeping a copy for the OP's files) outlining his errors.

Alternatively, the OP could make a claim immediately with the PRTB for illegal eviction.

smilerxxx

Is it possible he thinks that the previous arrangement of ye paying for a months rent but leaving 2 weeks early is being backtracked on? If your wages is 2 weeks late, then you would need to pay him a months rent the day you move out, and would anyone do that? Correct me if I'm wrong, I'm just trying to see the LL's side, I'd think you were trying to get out of the last month rent

Ps sorry you were assaulted in your home that must have been awful

djimi

Zulu wrote: »

Well thats kinda my point! Why create a confrontation when it might be needless?

If (s)he approaches the landlord with a "your eviction notice is invalid", be it polite or otherwise, the LL is going to assume that the tenant is pulling a fast one, and is planning on staying longer (rent free). It's simply fuel to the fire.

Well if the landlord thinks that they are evicting the OP then a) there goes any hope the OP has of getting a reference and b) the landlord may be intent on getting the OP out before the agreed date (seeing as how they are making up their own rules its impossible to tell what they think consititutes an eviction period; they might expect the OP out in a week).

End of the day it doesnt matter a jot what the landlord thinks the OPs intentions are. They cant do anything about it either way. The OP is well within their rights to stand their ground and argue their case against an illegal eviction notice. How hard they want to fight is up to them, but they need to be firm and make it clear to the landlord that the eviction notice is invalid, and it will not be taken seriously.

Zulu

Of course you are perfectly correct, I just suspect that the landlord is just ensuring they leave when they were supposed to (albeit going about it in the incorrect manner).

The reference is gone (I suspect) but what I'm suggesting is to try and finish out the tenancy on as amicable a term as possible. Ringing the LL to tell them the eviction notice is invalid mightn't be necessary if they can first establish if he's only (poorly) protecting himself from further "excuses".

djimi

I agree with you about finishing out a tenancy as amicably as possible, but it works both ways, and the landlord didnt have to go wading in with both feet and throwing around (illegal) eviction notices at the first sign of trouble either! There are ways of protecting yourself, and even if he felt that the OP was going to pull a fast one, trying to evict them early was not the way to go about it.

Any eviction notice is serious, but especially when its not handled properly in a legal manner. Its not really something that can or should be ignored. It doesnt have to result in a blazing row, but it needs to be dealt with.

murphaph

Landlord is just covering himself in case you decide to over hold the property.

Mrs OBumble

OP, if your financial situation is tight that you cannot cover one month's rent from your savings, then it seems to me that you've got more problems going on than just accommodation!

Approach your bank about getting a short term personal loan or overdraft, and pay the rent tomorrow.

Then for the next few months, concentrate on savings. You should have 12 weeks worth of living money in the bank pretty much as call, so cover you for things like getting sick and not being able to work. I could understand an unemployed person doing this, but if you are working, then savings are a must.

BostonB

I'm not referring to the OP. But I expect considering the hardship out there that many people are struggling month to month, rather than having the excess income to put into savings.

Páid

odds_on wrote: »

It took to the 11th post by D3PO, before a correct answer was given to the OP's question.

A landlord cannot issue a valid notice of termination for arrears of rent without first serving a 14 days notice of rent arrears. Furthermore, a valid Notice of Termination cannot be served by email as it would not comply with the requirements of a NoT, which require, among other things, the signature of the landlord.

I would be inclined to follow djimi's advice and point out politely to the landlord that his notice is invalid. Do this firstly, verbally if on reasonably terms with the LL and followed up by a written letter (keeping a copy for the OP's files) outlining his errors.

Alternatively, the OP could make a claim immediately with the PRTB for illegal eviction.

The above is true if the tenant has acquired a part 4 tenancy (which I believe they have).

I don't think the landlord was trying to serve a "notice of eviction" by email. In the original post, the email mentions "My agent will serve notice in writing at [MY ADDRESS] in the coming days.". I believe the landlord is paying an agent to serve a Notice of Termination in accordance with the PRTB rules.

Landlord is just covering himself in case you decide to over hold the property.

If the tenant has a part 4 tenancy then they are entitled to stay in the property for a further 3 years and 6 months (if any of the exceptions listed in the Acts don't arise).

The landlord is just trying to ensure that the property will become vacant as soon as possible so that it can be rented out again without delay. Don't take it personally.

BostonB

SwissK wrote: »

..Seeing that he wants to evict us on a basis of being 11 days late rent pay, just 5 weeks before we move out anyway, seems very fishy to me.

From a LL point of view it looks like you're going to stiff him with the rent, most likely for more than the deposit will cover. You may not intend to. But the LL has no way of knowing that.

SwissK wrote: »

My question is what can he actually do? Can he come over to the house and kick us out? Or if we would be evicted, does that mean he does not need to pay us back our deposit?

...both you and your LL need to look at the rules...

...If at the end of your tenancy, there is rent outstanding, your landlord may legitimately retain part or all of your deposit to cover the arrears...

Also

http://www.prtb.ie/dispute-resolution/disputes/information-on-terminating-a-tenancy-for-rent-arrears

BostonB

Páid wrote: »

...The landlord is just trying to ensure that the property will become vacant as soon as possible so that it can be rented out again without delay. Don't take it personally.

Probably. But hes doing it wrong.

Páid

BostonB wrote: »

Probably. But hes doing it wrong.

I don't agree. Before you serve anything in writing you have to notify the tenant that they are in arrears. This can be done verbally but in this case the landlord has done it in an email.

A landlord can give a tenant verbal notice of the rent arrears but must ensure that the tenant is aware that failure to pay the rent arrears within a reasonable time will result in the landlord terminating the tenancy.

http://www.prtb.ie/dispute-resolution/disputes/information-on-terminating-a-tenancy-for-rent-arrears

djimi

Mrs OBumble wrote: »

OP, if your financial situation is tight that you cannot cover one month's rent from your savings, then it seems to me that you've got more problems going on than just accommodation!

Approach your bank about getting a short term personal loan or overdraft, and pay the rent tomorrow.

Then for the next few months, concentrate on savings. You should have 12 weeks worth of living money in the bank pretty much as call, so cover you for things like getting sick and not being able to work. I could understand an unemployed person doing this, but if you are working, then savings are a must.

Lovely in an ideal world, but a lot of people have enough to pay bills and live off and not much else. Pretty patronizing thing to come out with really.

djimi

Páid wrote: »

The above is true if the tenant has acquired a part 4 tenancy (which I believe they have).

I don't think the landlord was trying to serve a "notice of eviction" by email. In the original post, the email mentions "My agent will serve notice in writing at [MY ADDRESS] in the coming days.". I believe the landlord is paying an agent to serve a Notice of Termination in accordance with the PRTB rules.


If the tenant has a part 4 tenancy then they are entitled to stay in the property for a further 3 years and 6 months (if any of the exceptions listed in the Acts don't arise).

The landlord is just trying to ensure that the property will become vacant as soon as possible so that it can be rented out again without delay. Don't take it personally.

The OP is not on a part 4; they are 7 months into a fixed term lease. There is no notice of termination in this instance, and even if there was, the OP has not given any indication that the landlord tried to, or had any good reason to, issue notice of termination under one of the clauses set out in the part 4 tenancy.

Páid wrote: »

I don't agree. Before you serve anything in writing you have to notify the tenant that they are in arrears. This can be done verbally but in this case the landlord has done it in an email.

If their intent was to issue a notice of arrears then they went about it completely arseways. Vaguely hinting in an email that a notice of eviction/termination will be issued is not sufficient.

BostonB

Páid wrote: »

I don't agree. Before you serve anything in writing you have to notify the tenant that they are in arrears. This can be done verbally but in this case the landlord has done it in an email.....

You must be looking at a different thread or something.

Sugar Soap

djimi wrote: »

The OP is not on a part 4; they are 7 months into a fixed term lease. There is no notice of termination in this instance, and even if there was, the OP has not given any indication that the landlord tried to, or had any good reason to, issue notice of termination under one of the clauses set out in the part 4 tenancy.



If their intent was to issue a notice of arrears then they went about it completely arseways. Vaguely hinting in an email that a notice of eviction/termination will be issued is not sufficient.

The o/p acquired Part 4 rights after 6 months. The lease has nothing to do with it.

djimi

Sugar Soap wrote: »

The o/p acquired Part 4 rights after 6 months. The lease has nothing to do with it.

The OP may have acquired part 4 rights, but the fixed term lease is still in effect, which means that the terms of the part 4 tenancy which allow either party to issue a notice of termination do not yet apply.

Páid

djimi wrote: »

The OP is not on a part 4; they are 7 months into a fixed term lease. There is no notice of termination in this instance, and even if there was, the OP has not given any indication that the landlord tried to, or had any good reason to, issue notice of termination under one of the clauses set out in the part 4 tenancy.

The tenant has part 4 rights whether there is a lease or not. You cannot contract out of the Residential Tenancies Acts. There are penalties for breaking a lease and in this instance the landlord and tenant agreed that it would be two weeks rent.

If their intent was to issue a notice of arrears then they went about it completely arseways. Vaguely hinting in an email that a notice of eviction/termination will be issued is not sufficient.

The first step is not serving a written notice of termination, it is notifing the tenant that they are in arrears. This can be done verbally and is meant to be an informal process. If the arrears are sorted out within a reasonable timeframe then no notice need ever be served.

Again from the prtb

This first notification does not need to be in writing. A landlord can give a tenant verbal notice of the rent arrears but must ensure that the tenant is aware that failure to pay the rent arrears within a reasonable time will result in the landlord terminating the tenancy. As a landlord may need to give evidence that this has been communicated to the tenant, it may be prudent to give this notice in writing.

If the landlords agent turns up (as mentioned in the email) and issues a written notice of some kind, the legality of that notice can then be examined.

I believe the landlord was just putting the tenant on notice that they are in rent arrears. I don't believe they are intending to evict the tenant before the agreed date. What s/he is trying to do is prevent a situation where the middle of July comes and the tenant has paid no rent and won't move out (this is a worst case scenario and I am not suggesting that the OP would do this). If at that time the landlord has not followed the correct PRTB procedures they must start again from the very beginning by;

1. Infoming the tenant that they are in breach of their obligation to pay rent
2. Then wait a reasonable time
3. Then serve a 14 day warning notice
4. Then wait 14 days
5. Then serve a 28 day notice of termination.
6. Then wait 28 days

This delay in getting the tenant out is what the landlord is trying to prevent. By starting the process now s/he can legally have the tenant evicted if and only if they have no other choice.

BostonB wrote:

You must be looking at a different thread or something.

Try reading the procedure for terminating a tenancy for rent arrears. It is very clear - http://www.prtb.ie/dispute-resolution/disputes/information-on-terminating-a-tenancy-for-rent-arrears

Páid

djimi wrote: »

The OP may have acquired part 4 rights, but the fixed term lease is still in effect, which means that the terms of the part 4 tenancy which allow either party to issue a notice of termination do not yet apply.

The fixed term lease was agreed to be broken by both parties with a penalty of two weeks rent. This is the second paragraph of the original post;

He agreed to break the lease early and we could move out on July 13th rather than September. As a penalty for terminating the lease early, he asked us to move out 2 weeks before the end of the month but still pay for that full last month. I agreed on that as it seemed fair, plus he was always really friendly person and I felt bad that we want to move out already.

djimi

Páid wrote: »

The fixed term lease was agreed to be broken by both parties with a penalty of two weeks rent. This is the second paragraph of the original post;

From the original post:

He agreed to break the lease early and we could move out on July 13th rather than September.

The fixed term lease is still in effect until July 13th. The tenant is not on a part 4 tenancy, ie neither party can issue a notice of termination under the terms of a part 4 tenancy that would take effect before July 13th.

galtee mountain boy

Djimi, Odds on, it’s always good to read your replies as your know your stuff without a doubt, some **** spouted in the opening 10 or so posts, posters plucking information from their hole, nothing that annoys me more when people are trying to make out they know it all, educate yourselves before ye start spouting bull**** ffs.

djimi

Páid wrote: »

The first step is not serving a written notice of termination, it is notifing the tenant that they are in arrears. This can be done verbally and is meant to be an informal process. If the arrears are sorted out within a reasonable timeframe then no notice need ever be served.

If the landlords agent turns up (as mentioned in the email) and issues a written notice of some kind, the legality of that notice can then be examined.

I believe the landlord was just putting the tenant on notice that they are in rent arrears. I don't believe they are intending to evict the tenant before the agreed date.

Maybe its just in the interpretation of the email, but I dont read it like that at all. From the email as posted in the OP:

I have no choice but to serve you with Notice of Eviction, with notice effective as of today, 6th June 2013.

My agent will serve notice in writing at [MY ADDRESS] in the coming days.

The landlord does not say that they will have no choice but to serve notice of eviction if the rent is not paid in 14 days, they quite specifically say that they are serving a notice of eviction effective from the date of the email. This does not suggest to me that they are issuing any warning about arrears, and it also does not suggest that they intend to allow the required 14 days for the tenant to sort the arrears.

If the landlord shows up in two weeks time with written notice of eviction, dated from the 20th June, then the email could perhaps be taken as a notice of arrears (although I would still be questioning the wording and intent of it). However, I suspect that, from reading the email, the landlord will not be waiting two weeks, and will instead be showing up with written notice of eviction dated from the 6th June.

Zulu

Great post! Informative, insightful, and thought provoking.


...oh, and insulting. I forgot insulting.

Páid

djimi wrote: »

From the original post:
The fixed term lease is still in effect until July 13th. The tenant is not on a part 4 tenancy, ie neither party can issue a notice of termination under the terms of a part 4 tenancy that would take effect before July 13th.

I agree that the lease is in place until July 13th. That being said, the lease at any time does not stop a part 4 tenancy from being acquired by the tenant after 6 months. As I said earlier, you cannot contract out of the Residential Tenancies Acts and you cannot prevent a part 4 by having a lease.

Instead, they will run concurrently. In the event of an incompatibility between the lease and the Residential Tenancies Acts, the Residential Tenancies Acts will apply. If the part 4 has been acquired then the landlord is entitled and obliged to follow the prescribed PRTB procedures.

FIXED TERM TENANCIES AND PART 4
The existence of a fixed term tenancy does not preclude the operation of Part 4. Part 4 runs with a fixed term tenancy, so that the continuous occupation by a tenant under a fixed term tenancy for a period of 6 months, means the tenant shall, as in normal course, become entitled to the protections of a Part 4 tenancy. In cases of fixed term tenancies however, the rights under Part 4 only apply to the extent that they benefit the tenant over and above the rights afforded to him or her under the terms of the fixed term tenancy.

http://www.prtb.ie/dispute-resolution/disputes/terminating-a-fixed-term-tenancy

Also on that PRTB page you will see that a landlord cannot get out of a fixed term lease solely by using the part 4 procedures. There must be a breach on behalf of the tenant (and I presume there is in this case as they are in rent arrears).

BostonB

What is insulting?

djimi

Páid wrote: »

I agree that the lease is in place until July 13th. That being said, the lease at any time does not stop a part 4 tenancy from being acquired by the tenant after 6 months. As I said earlier, you cannot contract out of the Residential Tenancies Acts and you cannot prevent a part 4 by having a lease.

Instead, they will run concurrently. In the event of an incompatibility between the lease and the Residential Tenancies Acts, the Residential Tenancies Acts will apply. If the part 4 has been acquired then the landlord is entitled and obliged to follow the prescribed PRTB procedures.


http://www.prtb.ie/dispute-resolution/disputes/terminating-a-fixed-term-tenancy

Also on that PRTB page you will see that a landlord cannot get out of a fixed term lease solely by using the part 4 procedures. There must be a breach on behalf of the tenant (and I presume there is in this case as they are in rent arrears).

The one part where a fixed term lease does override the terms of the part 4 tenancy is the notice period. There is no notice of termination for either party while the tenant is on a fixed term lease (unless the landlord can issue a legal eviction notice for breach of lease, non-payment of rent or serious anti-social behaviour). The notice of termination terms of the part 4 tenancy do not apply for the duration of a fixed term lease.

If the landlord wishes to issue a notice of eviction for non-payment of rent then they must follow the legal procedure. Based on what has been described in this thread, and based on the email that they sent to the tenant, I do not believe that this process has been properly followed (or, more specifically, I do not get the impression that it is the landlords intention to follow it properly based on what they said in the email).

Páid

djimi wrote: »

The one part where a fixed term lease does override the terms of the part 4 tenancy is the notice period. There is no notice of termination for either party while the tenant is on a fixed term lease (unless the landlord can issue a legal eviction notice for breach of lease, non-payment of rent or serious anti-social behaviour). The notice of termination terms of the part 4 tenancy do not apply for the duration of a fixed term lease.

If the landlord wishes to issue a notice of eviction for non-payment of rent then they must follow the legal procedure. Based on what has been described in this thread, and based on the email that they sent to the tenant, I do not believe that this process has been properly followed (or, more specifically, I do not get the impression that it is the landlords intention to follow it properly based on what they said in the email).

What the landlord said in the email was that an agent would serve notice. As I said earlier I think it's premature to accuse the landlord of anything when all he has done is send an email stating that an agent will serve notice.

You have drawn my attention to something I was not aware of regarding the concurrent running of a fixed term lease and a part 4 tenancy. Particularly the fact that a landlord cannot rely on Section 34 until the lease has expired.

Regardless of the duration of the letting, the notice of Termination must specify the reason for the termination. If the reason is for arrears of rent, then the 14 day warning letter above must still be sent in advance of the notice. Unless it is specified as a condition of the letting agreement,
the tenant is generally not entitled to an opportunity to remedy the breach prior to service of the notice.

Generally, the reasons under section 34 are not valid grounds for terminating a fixed term tenancy. They can only be used if they have been incorporated as conditions in the fixed term letting agreement.

http://www.prtb.ie/docs/default-source/good-landlord-guides/good-landlord-guide-%28english%29.pdf?sfvrsn=4

I guess we need to see the lease before we can find out if the tenant is allowed a chance to remedy the rent arrears. I would have thought that the opposite would be the case i.e. that the Acts would favour the tenant by allowing them all the rights afforded them under a part 4 but they don't in this case.

djimi

Páid wrote: »

What the landlord said in the email was that an agent would serve notice. As I said earlier I think it's premature to accuse the landlord of anything when all he has done is send an email stating that an agent will serve notice.

Like I said I could be reading it wrong, but my reading of that email is the landlord intending to issue a notice of eviction, effective immediately, which would be served in writing over the next few days. Its the part about it being effective from 6th June that changes the meaning for me; had he left that out then it could be argued that the email is the notice of arrears.

Páid wrote: »

http://www.prtb.ie/docs/default-source/good-landlord-guides/good-landlord-guide-%28english%29.pdf?sfvrsn=4

I guess we need to see the lease before we can find out if the tenant is allowed a chance to remedy the rent arrears. I would have thought that the opposite would be the case i.e. that the Acts would favour the tenant by allowing them all the rights afforded them under a part 4 but they don't in this case.

I dont think the terms of the lease have any bearing on it. There are a very specific set of procedures in place which must be followed when dealing with non-payment of rent and its my understanding that these apply regardless of lease type or terms. I dont believe that the landlord can deny the tenant their right to the 14 day notice of arrears and the chance to remedy the arrears in this time.

djimi

Regardless of the duration of the letting, the notice of Termination must specify the reason for the termination. If the reason is for arrears of rent, then the 14 day warning letter above must still be sent in advance of the notice. Unless it is specified as a condition of the letting agreement, the tenant is generally not entitled to an opportunity to remedy the breach prior to service of the notice.

Reading that back, it doesnt actually make a lot of sense. In one line it says that a 14 day warning letter must be issued in advance of termination notice for non-payment of rent, then in the next line it says that unless its specified in the lease the tenant is not entitled to an opportunity to remedy the breach.

I think they have confused the matter with the way they have written that paragraph. Its my understanding that 14 days notice of arrears is a seperate notice that specifically deals with the non-payment of rent, and that this notice is manditory. I could be wrong about that, but I have a feeling that the PRTB have confused the matter with the way that they have worded the document. When I get a moment I will look through the RTA and see if it is any clearer.

Páid

The procedure varies depending on whether its a part 4 or a fixed term.

For a part 4 tenancy, you have to give a Notice of Breach of Obligation, verbally or in writing before you give the Notice of Arrears. The tenant has an opportunity to resolve the breach before the Notice of Arrears is served.

The way I'm reading it, after the fixed term expires on July 13th the landlord must serve the Notice of Arrears without having first served the Notice of Breach of Obligation.

Páid

In any event I think it would be in the OP's interest to remedy the rent arrears situation as soon as possible. If that happens the landlord cannot proceed.