Minimum Rent Term

tommy100

Hi, im looking for info on minimum rental term, what is the law, i own an apartment and have 2 tenants, one over a year and the other 4 months, the newest tenancy is on a six month contract (so still 2 months to go) but I would like to end her tenancy as its not working out. Reason for giving 6 months 1st place was my wife is going to college and she needs accomodation. (at the moment she still to decide).

Can i give her notice without reason if its less than 6 months into tanancy and she is only on 6 months contract?

athtrasna

Is there a break clause in the contract? Because if it's a fixed term contract without a break clause then you can't terminate the tenancy for this reason

L1011

With a fixed term, you can't simply get rid of them before then. However, you should serve them notice that you are ending the rental at the 6 months to prevent them getting any Part IV rights.

L1011

tommy100 wrote: »

Yeah read contract, cant see any get out clause, can u give me an example of one.

Severe anti social behaviour or non payment of rent would generally be the only ones.

salamanca22

tommy100 wrote: »

Yeah have 5 get out clauses but she wouldn't fall into any of them really. its only 2 months away til endnof contract so will give her notice this week.

After 6 months she will have gained part 4 rights which will mean she is a bona fide tenant and acquires all right offered to tenants under the residential tenancies act 2004. One of these rights is protection against being removed from the property by the landlord except under a few circumstances. One of these circumstances is indeed needing the property for a family member, however there is new legislation coming in soon which will require you as far as I remember to provide proof that this family member is now living in the property if requested.

If your wife is not expected to be entering the property until september 2016 then this will not, in my opinion satisfy the prtb (if it came to that) that the termination was legal and you might end up with fines and punitive damages awarded against you(I am not sure if the prtb can award punitive damages or if only the courts can, either way damages can be awarded to the tenant, punitive or otherwise). I believe you have 6 months to move into the abode after the termination of the original tenancy, after this you must offer the apartment back to the same tenant. Since september is longer than 6 months away then this would not gel for you.

salamanca22

tommy100 wrote: »

Well she would be movin in in january (not next sept). Anyway other than that. I have read up on the law, it states that you give notice of termination of tenancy before 6 months are up and you do need to give a reason for ending tenancy. She is only on a 6 month contract. Can someone verify this that i am correct in saying this.

You are correct, however the tenant does have rights in this case as a fixed term lease is in place and as the lease ends after 6 months the tenant will have gained part 4 rights. As the termination date happens after the first 6 months you must give a reason that is acceptable under the act, as you want family to move in you are fine but you will have to let the tenant know this is why and you must also tell them what family member is going to be moving in. They have the option of investigating whether or not that family member has moved in and the onus will be on you to prove that they have.

salamanca22

tommy100 wrote: »

??? Its less than 6 months. Move in date is 1st August, she is not there 4 months yet. End of january is 6 months. She has 6 months lease.

Yes, but the fixed term lease is 6 months. You can not remove her from the abode during a fixed term lease unless you have break clauses that will allow it.

You gave additional rights to the tenant when you signed a lease, this also gave you additional rights though. But in this case you cannot remove the tenant until the lease is over and by then they will have garnered part 4 rights.

April 73

salamanca22 wrote: »

Yes, but the fixed term lease is 6 months. You can not remove her from the abode during a fixed term lease unless you have break clauses that will allow it.

You gave additional rights to the tenant when you signed a lease, this also gave you additional rights though. But in this case you cannot remove the tenant until the lease is over and by then they will have garnered part 4 rights.

So are you saying that a six month lease will automatically become a Part IV tenancy? You cannot end the lease before six months & at exactly six months Part IV kicks in?

In that case a six month tenancy should really be a 5 month & 3 week lease if the landlord actually only wants to rent the property for six months? Otherwise the LL can only get the property back if they want to move a family member in or sell it?

salamanca22

April 73 wrote: »

So are you saying that a six month lease will automatically become a Part IV tenancy? You cannot end the lease before six months & at exactly six months Part IV kicks in?

In that case a six month tenancy should really be a 5 month & 3 week lease if the landlord actually only wants to rent the property for six months? Otherwise the LL can only get the property back if they want to move a family member in or sell it?

Yes. Once a tenant has been active in an abode for a period of 6 months they gain part 4 rights which offer them substantial rights. If you want to do a short term let you need to be sure that you end the tenancy before the sixth month comes to a close or you will be bound by the residential tenancy act 2004. With this you will have as a landlord a lot more responsibilities to your tenant.

There are a few reasons you can take back the abode once part 4 rights are in effect and you do not have any superseding contracts in place such as a lease. They include letting for a family member, wanting to sell, wanting to get out of the rental game, substantial works required on the abode and if the abode becomes unsuitable to house the tenant. With the new legislation coming in the onus will be on the landlord to prove that the reason for terminating part 4 tenancy was under these conditions. If the tenant brings action against the landlord and they can not prove it then they will face fines and damages awarded against them for illegal eviction.

After 4 years part 4 rights are lost to the tenant for a period of 6 months, afterward further part 4 rights are allowed to the tenant. This allows the landlord, for a the 6 month period to end the tenancy without reason so long as the required notice of 112 days was given.

If someone was working in time scales as tight as this they would need to remember that notice begins the day after it is furnished. So, if 28 days notice is required then the day that notice is delivered it would be 29 days later that the termination date would be. If you try to force someone out on the 28th day it would be considered and illegal eviction. This is very important to remember if you want to end a tenancy on an exact date.

Some might say that for a tenant to garner part 4 right they have to specifically inform the landlord of their intent, however, that has not been the case when it comes to actual cases and it is pretty much accept that their is an automatic expectation to part 4 rights by a tenant.

4ensic15

April 73 wrote: »

So are you saying that a six month lease will automatically become a Part IV tenancy? You cannot end the lease before six months & at exactly six months Part IV kicks in?

In that case a six month tenancy should really be a 5 month & 3 week lease if the landlord actually only wants to rent the property for six months? Otherwise the LL can only get the property back if they want to move a family member in or sell it?

The PRTB (or at least some of the adjudicators) take the view that the Landlord cannot issue a Notice of Termination during the currency of a fixed term lease. This means in the case of a six month lease the landlord has to wait until it is over and then issue a NOT. By that time it must comply with the procedure for terminating a Part iv tenancy.

April 73

Thanks for those answers Salamana & 4senic15. Interesting about the six month leases & notice periods.

So why would anyone issue a six month lease to a tenant? I can see a tenant might find a short lease attractive but what's the positive from a LL's point of view? A five month lease which would allow 28 days notice to end it before Part IV kicks in seems better? Am I missing something?

salamanca22

tommy100 wrote: »

Ok slamanca when is 6 months not six months. I intend to give notice 5 weeks before hand and provide notice for the end of her tenancy. The prtb dont expect me to offer the tenant 5 months 4 weeks and 1 day. So are you a tenant landlord or do you work for threahold prtb???

I don't understand your question? 6 months is 6 months. You can not end a tenancy that has a lease and both parties are fulfilling their obligations. Since you have a 6 month lease the tenant will get part 4 rights at the end of the lease, just because you give notice before the 6 months will not change this fact. You have a genuine reason for ending the tenancy so you are covered so long as the reason is in fact, genuine. If not genuine you are open to fines and damages for illegal eviction which have reached the 20k mark many times.

I don't see what my own situation has to do with any of this? I am giving you information to help you proceed and not fall into expensive pit traps.

If you give notice before the lease ends there is a chance they can take a successful case against you in the prtb too, depending on the adjudicator on the day they may decide that the notice was not valid. This has happened in the past.

Since the lease is for 6 months there is no way to get around the tenant getting part 4 rights. Make sure you do this right or it could end up a mess for you if the tenant wants it to.

salamanca22

Say there is 180 days in 6 months. You have leased the apartment for those 6 months. You can not ask a tenant to leave on day 180 as they have a lease that allows them the use of the abode for that day. Therefore you must give notice for the following day which is day 181, on that day 6 months have passed and it is day 1 of the 7th month. At this point the tenant has gained part 4 rights and is afforded all protections under the act.

April 73

salamanca22 wrote: »

Say there is 180 days in 6 months. You have leased the apartment for those 6 months. You can not ask a tenant to leave on day 180 as they have a lease that allows them the use of the abode for that day. Therefore you must give notice for the following day which is day 181, on that day 6 months have passed and it is day 1 of the 7th month. At this point the tenant has gained part 4 rights and is afforded all protections under the act.

Why not serve valid notice so that day 29 falls on day 180 of the tenancy.
Surely the tenant can stay until 12 midnight on day 180 & not actually stay into day 181?

As far as I can see this is a minefield of technicalities.

Claw Hammer

April 73 wrote: »

Why not serve valid notice so that day 29 falls on day 180 of the tenancy.
Surely the tenant can stay until 12 midnight on day 180 & not actually stay into day 181?

As far as I can see this is a minefield of technicalities.

The PRTB adjudicators see that as a breach of the legislation in attempting to end a tenancy during its currency and will deem the notice invalid.

salamanca22

April 73 wrote: »

Why not serve valid notice so that day 29 falls on day 180 of the tenancy.
Surely the tenant can stay until 12 midnight on day 180 & not actually stay into day 181?

As far as I can see this is a minefield of technicalities.

Yes, but since day 180 has come to an end the the tenant now has a tenancy that has lasted 6 months which gives them part 4 rights.

According to the act:

(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.

Subsection 3 goes into how if you offer notice before the 6 months are over but the end date does not come into effect until after the 6 months are over then part 4 rights will not be afforded to the tenant. As there is a lease in place the landlord cannot use the options laid out in part 4 tenancy to his advantage. You can only give notice to end a tenancy while there is a lease in place if the tenant has breached their obligations, this is explained on the prtb website here: http://www.prtb.ie/dispute-resolution/disputes/terminating-a-fixed-term-tenancy

Here is the relevant part of the act I quoted: http://www.irishstatutebook.ie/eli/2004/act/27/enacted/en/print#sec28

April 73

I'm just not getting it then.

If a LL wants a short tenancy then it has to be a lease agreement drawn up for five months & then valid notice given to end it on day 180. Otherwise it automatically rolls over into Part IV.

Is that it? I'm feeling particularly stupid today.

salamanca22

April 73 wrote: »

I'm just not getting it then.

If a LL wants a six month tenancy then it has to be a lease agreement drawn up for one day less than six months. Otherwise it automatically rolls over into Part IV.

Is that it? I'm feeling particularly stupid today.

Pretty much.

April 73

I edited my post & you managed to beat me to a response Salamanca!

So is it six months less one day or is five months plus valid notice better.

I don't think the nuances of this are clear to most landlords.

salamanca22

April 73 wrote: »

I edited my post & you managed to beat me to a response Salamanca!

So is it six months less one day or is five months plus valid notice better.

I don't think the nuances of this are clear to most landlords.

If there is a lease in place then you can not give notice until after the lease has ended, so in this case it is best to have a 5 month lease and then once that has lapsed give the required notice of 28 days unless the last month is on february, then you will have to end the lease at least 1 day before the fifth month and then give the required 28 days notice. This will make sure that the tenancy never finishes at the end of day 180 and part 4 rights will not be afforded to the tenant.

Remember, you do not need to offer a lease. If there is no lease in place then the landlord can end the tenancy at any time before day 180 so long as the required 28 days notice was furnished. This could be on day 179 and according to subsection 3 of section 28 part 4 tenancy will not be extended to the tenant. This does not apply if there is a lease in place longer than 5 months as you can not furnish notice unless there has been a breach in the lease or until the lease has come to an end, which will be too late.

April 73

I've taken a photo of that answer. I think I finally get it! Thanks for the comprehensive answers.

I won't ask if a leap year makes any difference. Lol.

sunnysoutheast

Would you not just include a break clause in the lease exercisable at month 3 or 4?

I thought this was standard practice but has it now been knocked back in PRTB determinations?

4ensic15

sunnysoutheast wrote: »

Would you not just include a break clause in the lease exercisable at month 3 or 4?

I thought this was standard practice but has it now been knocked back in PRTB determinations?

I have never seen a break clause in a residential lease. They are generally used in longer commercial leases. What you are talking about would be a 3 month lease with an option on either side to renew. Why bother with a lease at all in that situation?
The way to go is to give no lease and tell the tenant that if they are satisfactory
they will be offered a term lease after 6 months.