Landlord in arrears

BeatNikDub

I will keep this as simple as possible.

My question is whether a management company can withhold such things as keys for bike shed or replacements from tenants because a landlord is in arrears?

Michael D Not Higgins

Yes is the short answer.

Gatling

And a whole lot more depending on how you access your building

BeatNikDub

Wow, that's really awful.
But thanks for the answer that is all we needed to know.

Michael D Not Higgins

BeatNikDub wrote: »

Wow, that's really awful.
But thanks for the answer that is all we needed to know.

Just to clarify, the management company are not withholding from the tenant. They are withholding from the landlord. They only have a legal agreement with the landlord, not the tenant.

It should be looked at as the landlord is not paying his bills and is also withholding things like keys from their tenants.

BeatNikDub

Which I do understand believe me, however the apartment is in receivership to be sold, which the management company knows, so all fees will be received upon completion of sale.
The situation irks me more though as the management company have now asked us to start paying them rent directly rather than the receiver! Yikes!

phildin

Don't consider paying the money directly to the management company, the receiver is the only proper place for the money to be paid. The receiver has the legal responsibility to allocate the money in accordance with the relevant law and you're not entitled preempt this.

If the pub where the landlord has a tab asked you to pay the rent to them you wouldn't do this either; the receiver would simply pursue you for the rent that s/he didn't receive regarldess of what other payments you might claim to have made on the part of the landlord as is their legal obligation.

BeatNikDub

We are not considering this at all!
We have started paying the receiver and have facilitated everything in that accord - and wish to do everything above board. It is just a pity the situation that has unfolded where services are being withheld from us due to arrears; however I do understand where the management company is coming from.....until today though when they asked for us to stop paying the receiver and pay them. I do have to say I am pretty flabbergasted by that suggestion!

athtrasna

Sounds to me like the management company might have financial issues of their own and are trying not to have to wait until the apartment is sold

MarkAnthony

BeatNikDub wrote: »

I do have to say I am pretty flabbergasted by that suggestion!

Dunno why. It's one thing to try and cut the owner out, but an outsider simply trying to get a return on a debt? That's all the OMC is trying to do.

phildin

BeatNikDub wrote: »

We are not considering this at all!
We have started paying the receiver and have facilitated everything in that accord - and wish to do everything above board.

That's good to hear, sorry if I was preaching to the choir. It sounds like the management company were trying to pull a fast one and someone less familiar with this type of thing could easily think they were doing the right thing by paying them off.

Baby01032012

MarkAnthony wrote: »

Dunno why. It's one thing to try and cut the owner out, but an outsider simply trying to get a return on a debt? That's all the OMC is trying to do.

But the omc has no entitlement to the rent, they are not landlord. They have no legal contract with the tenant. They have no recourse to the tenant.

blacklilly

Baby01032012 wrote: »

But the omc has no entitlement to the rent, they are not landlord. They have no legal contract with the tenant. They have no recourse to the tenant.

I'm not sure if the OP has properly explained the situation or if it has been misunderstood.

The OMC have no right what so ever to request the tenant pay their rent to them in order to clear the arrears of the landlord.....OP is this what the OMC have asked you to do?

Eldarion

I could completely understand the OMC's actions up until the point they approached the tenant asking them to pay the rent directly to them. It's not a leap in logic by any means to consider this as extortion. There should be ZERO financial interaction between the tenant and the OMC. The OMC provides services to the Landlord, those services are removed upon non payment. The landlord's failure to provide a promised service to a tenant is then between the Landlord and Tenant.

OP, the next time a representative of the OMC comes to you asking for the rent to paid directly to them, record it or get it in writing. If they commit to saying that they'll resume X and Y service if you do this then it's a perfect example of a shake down.

MarkAnthony

Baby01032012 wrote: »

But the omc has no entitlement to the rent, they are not landlord. They have no legal contract with the tenant. They have no recourse to the tenant.

OIf course they don't. I'm simply pointing out the absolute shock horror of it all shouldn't really be that suprising. It's several parties just trying to get debts paid.

BeatNikDub

MarkAnthony wrote: »

Dunno why. It's one thing to try and cut the owner out, but an outsider simply trying to get a return on a debt? That's all the OMC is trying to do.

And completely bypass the receiver? That would get us into a huge amount of trouble. Plus it would mean we would not be paying rent but some ones management fees.
Frankly I'm pretty disgusted it was even suggested and we shall be informing the reciever.

BeatNikDub

blacklilly wrote: »

I'm not sure if the OP has properly explained the situation or if it has been misunderstood.

The OMC have no right what so ever to request the tenant pay their rent to them in order to clear the arrears of the landlord.....OP is this what the OMC have asked you to do?

It sure is!

LooksLikeRain

As you are now paying the reciever the rent, the reciever is responsible to ensure you have access to all facilites such as bike stores and bin sheds etc. You need to get the receiver to deal with the OMC in order to ensure you, as tenent have access to all you are paying for.
If they refuse then its PRTB time.

Lantus

could you clarify exactly what they asked you for?

Did they ask for rent, or outstanding service fees?

Did they put this in writing or was it communicated verbally?

An OMC cannot request anything from a tenant really as they have none.

But they can withhold any and every service from a unit owner and any unit they may own until the owner complies with their legal contract.

BeatNikDub

LooksLikeRain wrote: »

As you are now paying the reciever the rent, the reciever is responsible to ensure you have access to all facilites such as bike stores and bin sheds etc. You need to get the receiver to deal with the OMC in order to ensure you, as tenent have access to all you are paying for.
If they refuse then its PRTB time.

Yep we put in a call to them all right and are following up for us.

BeatNikDub

could you clarify exactly what they asked you for?

Did they ask for rent, or outstanding service fees?

Did they put this in writing or was it communicated verbally?




They asked us to pay rent directly to them. It was over the phone, I would love to have it in writing!

The_Morrigan

LooksLikeRain wrote: »

As you are now paying the reciever the rent, the reciever is responsible to ensure you have access to all facilites such as bike stores and bin sheds etc. You need to get the receiver to deal with the OMC in order to ensure you, as tenent have access to all you are paying for.
If they refuse then its PRTB time.

That isn't technically true. Although a receiver has been appointed the landlord still has obligations to adhere to.
OP you need to be dealing with both the receiver and the landlord on this.

LooksLikeRain

The_Morrigan wrote: »

That isn't technically true. Although a receiver has been appointed the landlord still has obligations to adhere to.
OP you need to be dealing with both the receiver and the landlord on this.

I know its not straightforward, but the reciever has now become the landlord. It is the reciever who is now in breach of contract if services are not provided.
logging a case with the PRTB and ensuring reciever is now listed as new landlord usually gets the reciever to engage with OMC on a payment plan.

The_Morrigan

LooksLikeRain wrote: »

I know its not straightforward, but the reciever has now become the landlord. It is the reciever who is now in breach of contract if services are not provided.
logging a case with the PRTB and ensuring reciever is now listed as new landlord usually gets the reciever to engage with OMC on a payment plan.

The receiver is the receiver, it is not the landlord.

LooksLikeRain

The_Morrigan wrote: »

The receiver is the receiver, it is not the landlord.

yes, but by paying rent to the receiver and the fact that the original landlord has "passed" his responsilities to the receiver the receiver is now techniacally the landlord. if this was not the case the tenant would have no obligation to pay the receiver rent.
If the tenant has agreed to pay the reviever sums of money as opposed to rent the reciever would not be landlord. I doubt this is the case.
legal advise and a case with the prtb are way to go if reciever does not oblige.
This is also a good time to renegoiate rent. if tenant leaves a receiver will find it difficult to replace a tenant especially as the reciever becomes landlord from day 1 so cant drag it out with legal arguments.

MarkAnthony

LooksLikeRain wrote: »

As you are now paying the reciever the rent, the reciever is responsible to ensure you have access to all facilites such as bike stores and bin sheds etc. You need to get the receiver to deal with the OMC in order to ensure you, as tenent have access to all you are paying for.
If they refuse then its PRTB time.

LooksLikeRain wrote: »

I know its not straightforward, but the reciever has now become the landlord. It is the reciever who is now in breach of contract if services are not provided.
logging a case with the PRTB and ensuring reciever is now listed as new landlord usually gets the reciever to engage with OMC on a payment plan.

The_Morrigan wrote: »

The receiver is the receiver, it is not the landlord.

Actually, although The_Morrigan is essentially correct the receiver is an agent of the landlord. One whose primary job is to make sure that the bank gets as much money as possible to satisfy the debt. Tenant, managing agent and landlord be damned. The legislation could not be clearer on the matter frankly.

The managing agent is likely going to be paid by virtue that they block the sale until payment is made. However a receiver is going to attempt to negotiate that position, how successful they will be is another story. How long that takes is the OPs main issue.

In the majority of cases you pay the rent to the receiver, they will also be the ones evicting you in due course, and you get the land lord to fix any issues. It works about as well as you'd expect that to work.

The_Morrigan

LooksLikeRain wrote: »

yes, but by paying rent to the receiver and the fact that the original landlord has "passed" his responsilities to the receiver the receiver is now techniacally the landlord. if this was not the case the tenant would have no obligation to pay the receiver rent.
If the tenant has agreed to pay the reviever sums of money as opposed to rent the reciever would not be landlord. I doubt this is the case.
legal advise and a case with the prtb are way to go if reciever does not oblige.
This is also a good time to renegoiate rent. if tenant leaves a receiver will find it difficult to replace a tenant especially as the reciever becomes landlord from day 1 so cant drag it out with legal arguments.

The landlord hasn't passed any of his responsibilities over, granted he has lost control of some aspects.
The bank has appointed the receiver to receive the rent and control the asset - the landlord is still responsible for items like the repairs (although any spending must be agreed by the receiver) and the landlord is still on the hook for the deposit and PRTB issues. The receiver just takes the cash because the landlord has been naughty and not paid off the mortgage and the banks have literally sent their own guy in to collect the mortgage repayments.

The receiver is not the landlord.

It is explained here: http://www.ulsterbank.ie/documents/roi/A_residential_tenants_guide_to_Receivership.pdf

Pawwed Rig

LooksLikeRain wrote: »

yes, but by paying rent to the receiver and the fact that the original landlord has "passed" his responsilities to the receiver the receiver is now techniacally the landlord.

You are confusing a receiver with a liquidator. A receiver has no contract with the tenant at all

Claw Hammer

MarkAnthony wrote: »

Actually, although The_Morrigan is essentially correct the receiver is an agent of the landlord. One whose primary job is to make sure that the bank gets as much money as possible to satisfy the debt. Tenant, managing agent and landlord be damned. The legislation could not be clearer on the matter frankly.

.

???.
Residential tenancies Act 2004.

“landlord” means the person for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy;

The receiver does not receive the rent as agent for the landlord since the landlord has no control over him. If the landlord asks for the rent and is told he is not entitled to it, then some other person must be the landlord.

BeatNikDub

I have to say on this that the receivers have been great. They have been helpful, communicative, understanding and dare I say it human. I reported the management company behaviour to them which may not have helped my case on their end but I felt it was something they really needed to know.
Needless to say even though bank approval for all arrears has been given to him in writing with request for payment details, services to us are still being with held. There have been a few other instances also so I actually filled out a complaint to lodge with the PSRA today. I will sit on it for a few days though to be make sure I am not acting on impulse and blind frustration!

We pay our rent to a property manager assigned by the receiver and she is our contact for any issues now, but really the receivers themselves have been available to help at all times too.

As far as I am aware though all receivers (quoted from an actual receiver - not ours though) have to do is collect rent and really who acts as an actual landlord after that is pretty much up to goodwill.

The_Morrigan

Claw Hammer wrote: »

???.
Residential tenancies Act 2004.

“landlord” means the person for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy;

The receiver does not receive the rent as agent for the landlord since the landlord has no control over him. If the landlord asks for the rent and is told he is not entitled to it, then some other person must be the landlord.

This is why we do not allow legal advice here - the RTA was written well before receivers and tenants came to cross paths under residential tenancies. The law is not, and never will be literal and must be interpreted, using one of the many theories of interpretation.
This will take a legal challenge to have something solid to rely on, right now all we have is the best practices that have been written by the banking federation and circulated by numerous groups.

MarkAnthony

Claw Hammer wrote: »

???.
Residential tenancies Act 2004.

“landlord” means the person for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy;

The receiver does not receive the rent as agent for the landlord since the landlord has no control over him. If the landlord asks for the rent and is told he is not entitled to it, then some other person must be the landlord.

http://www.irishstatutebook.ie/2009/en/act/pub/0027/sec0108.html#sec108

You can't read one piece of legislation in isolation and without reference to common law and equity. Basically that's a more complex way of stating exactly what The_Morrigan has above.

I'm not trying to provide legal advice simply have the discussion, perhaps this is best kept to the Legal Discussions forum as people are probably more likely to go off half cocked here as it's, understandably, an emotive time when one is potentially losing their home.

MarkAnthony

Pawwed Rig wrote: »

You are confusing a receiver with a liquidator. A receiver has no contract with the tenant at all

Sorry to correct but this one may confuse anyone reading the thread. Generally there is no provision for appointment of a liquidator in these situations. A receiver would have quite a bit of contact with the tenant as they take over everything to do with collection or rent.

Pawwed Rig

contRact

MarkAnthony

Pawwed Rig wrote: »

contRact

Ah I see, that however flows from the agency relationship.

The_Morrigan

MarkAnthony wrote: »

Ah I see, that however flows from the agency relationship.

MA please don't get into a discussion on agency law - I don't think anyone needs that, I'm already having flashbacks to lectures & exams here!

MarkAnthony

The_Morrigan wrote: »

MA please don't get into a discussion on agency law - I don't think anyone needs that, I'm already having flashbacks to lectures & exams here!

My apologies, it's an interesting topic IMO as it's a legislative cock up that needs to be address, but in fairness no one saw coming. You're right though here is not the place for it.

SpaceTime

In a situation like this where keys, parking etc are being denied by the management company, would the tenant have grounds to terminate the lease early and move?

jd

BeatNikDub wrote: »

I have to say on this that the receivers have been great. They have been helpful, communicative, understanding and dare I say it human. .

It's easy to be smiley and friendly, but if they paid the service charge you wouldn't have a problem.

the_syco

jd wrote: »

It's easy to be smiley and friendly, but if they paid the service charge you wouldn't have a problem.

I'm pretty sure that's the landlord obligations?

BeatNikDub wrote: »

however the apartment is in receivership to be sold

The deposit is with the landlord, so remember this when you're moving out, as you'll be down money. You may try getting this from the landlord before you move out, however?

jd

the_syco wrote: »

I'm pretty sure that's the landlord obligations?

Sure, but he probably doesn't have any money and the receiver is getting the rent.

OMCs have to play hardball and keep on top of receivers otherwise they'll be f*cked over.

the_syco

jd wrote: »

Sure, but he probably doesn't have any money and the receiver is getting the rent.

Yes and yes. The OP should check if any maintenance fees are being paid, as I doubt it. And if not, the OP should negotiate an early release from the lease.

From past threads, the OP will not get a deposit from the receivers, so I wonder will a PTRB case against the landlord for non-return of the deposit when the OP leaves actually get them anything, as the deposit often seems to turn into a "pass the buck" game, where the only loser is the OP?

BeatNikDub

the_syco wrote: »

I'm pretty sure that's the landlord obligations?


The deposit is with the landlord, so remember this when you're moving out, as you'll be down money. You may try getting this from the landlord before you move out, however?

Actually, we have it in writing from the receiver that the bank will now honour our deposit.

the_syco

BeatNikDub wrote: »

Actually, we have it in writing from the receiver that the bank will now honour our deposit.

That's very cool. Hope it's something that more banks decide to do; shall make moving on a lot easier for many people.

BeatNikDub

Indeed, we didn't expect it tbh and although our landlord had said she would verbally she hasn't followed through with anything, therefore we know she just isn't a position to and although means well it is just too risky to depend on it.
We agreed to allow valuers in and be flexible with viewings for a few things in return and it all worked out for each party then.