Renting Query

4ensic15

4ensic15 wrote: »

The precedents you are talking about are Tribunal decisions. There are now High Court decisions which are binding. Even keeping a room does not guarantee that it will be found to be a licence arrangement. The landlord has to live there. Claiming to live there while also living somewhere else would mean swearing lies to the Tribunal which is a criminal offence.
No solicitor can guarantee any arrangement which will keep the RTB out of the situation.

You can live in more than one place, how is the person who is renting the room going to in anyway prove how much time you do or do not spend there. It would be an impossible task.

Also ruling it a tenancy would deny access to the LL to a room he is using, deny him access to all his stuff and his mail and mean the person renting the room gets the full place and only be paying rent for one room. Not going to happen simple as that.

Michael D Not Higgins

nox, again you're ignoring court precedence that they already established a situation as you described as a tenancy. Retaining a room doesn't make it a licence, living there does. The court will decide whether you were living there, and have already shown precedence for their decisions. The court also won't expect the tenant to prove you live there or not, that would be on you to prove.

Michael D Not Higgins

Michael D Not Higgins wrote: »

nox, again you're ignoring court precedence that they already established a situation as you described as a tenancy. Retaining a room doesn't make it a licence, living there does. The court will decide whether you were living there, and have already shown precedence for their decisions. The court also won't expect the tenant to prove you live there or not, that would be on you to prove.

The owner was not regularly in and out of the building in that case they stayed there 3 nights. Hence why I'm saying it's important to pop in and out regularly and be seen to be entering the property and using the bedroom etc.

There is one case also that everyone is referring to and there are a lot of people keeping a room in a house and renting the rest out so it's obviously a very unlikely scenario that the person will make an attempt to claim tenancy. It was the wrong decision also in the case in question imo.

Also if you are worried about someone getting "too comfortable" in the property just keep turning over the people renting the room every 6 months/once a year or whatever.

You have to admit it's exceptional unlikely that this issue will arise, very few people even understand how the system works never mind have the drive to go to the RTB with a big case trying to claim rights and it's one in a million the number of people willing to keep going to court after losing at the RTB (in this type of scenario).

Grolschevik

Frances Delightful Treachery wrote:

The owner was not regularly in and out of the building in that case they stayed there 3 nights. Hence why I'm saying it's important to pop in and out regularly and be seen to be entering the property and using the bedroom etc.

Frances Delightful Treachery wrote:

Also if you are worried about someone getting "too comfortable" in the property just keep turning over the people renting the room every 6 months/once a year or whatever.

Frances Delightful Treachery wrote:

You have to admit it's exceptional unlikely that this issue will arise, very few people even understand how the system works never mind have the drive to go to the RTB with a big case trying to claim rights and it's one in a million the number of people willing to keep going to court after losing at the RTB (in this type of scenario).

Does this not come close to advocating illegal or legally dubious (potential fraud) courses of action?

Michael D Not Higgins

Grolschevik wrote: »

Does this not come close to advocating illegal or legally dubious (potential fraud) courses of action?

Only if they're tenants. If they are licensees then they are little more than paying guests in the eyes of the law.

But yes, there is potential for illegal evictions which is why I'm cautious of any advice to do it this way.

The_Conductor

Lila Shallow Shortstop wrote: »

The owner was not regularly in and out of the building in that case they stayed there 3 nights. Hence why I'm saying it's important to pop in and out regularly and be seen to be entering the property and using the bedroom etc.

And in the current case- the OP is proposing to use the property 4-5 nights a year- and not otherwise........ Its damn close to the situation that was ruled on.

4ensic15

Lila Shallow Shortstop wrote: »

The owner was not regularly in and out of the building in that case they stayed there 3 nights. Hence why I'm saying it's important to pop in and out regularly and be seen to be entering the property and using the bedroom etc.

There is one case also that everyone is referring to and there are a lot of people keeping a room in a house and renting the rest out so it's obviously a very unlikely scenario that the person will make an attempt to claim tenancy. It was the wrong decision also in the case in question imo.

Also if you are worried about someone getting "too comfortable" in the property just keep turning over the people renting the room every 6 months/once a year or whatever.

You have to admit it's exceptional unlikely that this issue will arise, very few people even understand how the system works never mind have the drive to go to the RTB with a big case trying to claim rights and it's one in a million the number of people willing to keep going to court after losing at the RTB (in this type of scenario).

You won't know that until it happens. Not every tenants defaults or overholds. The o/p wants to avoid the potential risk, however small. There is simply no guarantee. In the RTB, if it is established that the landlord has another residence and the tenants says they have hardly ever seen them the landlord would have an uphill struggle. More to the point the High Court cases show that the tenant of one bedroom is the tenant of the dwelling. The letting would come under the RTB anyway if there is a written agreement.
As for constantly turning tenants over the chsnces of one of them going to the RTB increase the more tenants there are.
The o/p should either Airbnb or let the full unit out at just under market rent and take his chances.

The_Conductor

The_Conductor wrote: »

And in the current case- the OP is proposing to use the property 4-5 nights a year- and not otherwise........ Its damn close to the situation that was ruled on.

Hence why I was advising the op to be make more regular visits to the house etc.

How close the place is to where he now lives would play a big role in making this work of course. If it's close by its easy to pop in regularly enough and sleep there also etc. If it's awkward to do this then is more difficult of course.

I know it's a grey area but considering the scenario where rooms are let seperately, no room is retained and the LL just maintains access to common areas is being considered a licensee arrangement also I can't see any difficultly in making it work when a room is retained. The case being referred to looks more like the exception to the rule rather than proving otherwise.

At the end of the day I'm saying what I would do myself I'm not saying others should do the same but it's the route id be going down where I letting a place/rooms.

Grolschevik

Michael D Not Higgins wrote:

Only if they're tenants. If they are licensees then they are little more than paying guests in the eyes of the law.

I was thinking more of the implications of the first quoted paragraph, where the "to be seen to" phrase seems to indicate a potential intention to hoodwink.

But it certainly not as clear-cut as claimed, and I'm still waiting for something to back up the claim/assumption made by that poster.

Grolschevik

Frances Delightful Treachery wrote:

I know it's a grey area but considering the scenario where rooms are let seperately, no room is retained and the LL just maintains access to common areas is being considered a licensee arrangement.

Source? Evidence? Case?

4ensic15

Lila Shallow Shortstop wrote: »

Hence why I was advising the op to be make more regular visits to the house etc.

How close the place is to where he now lives would play a big role in making this work of course. If it's close by its easy to pop in regularly enough and sleep there also etc. If it's awkward to do this then is more difficult of course.

I know it's a grey area but considering the scenario where rooms are let seperately, no room is retained and the LL just maintains access to common areas is being considered a licensee arrangement also I can't see any difficultly in making it work when a room is retained. The case being referred to looks more like the exception to the rule rather than proving otherwise.

At the end of the day I'm saying what I would do myself I'm not saying others should do the same but it's the route id be going down where I letting a place/rooms.

First you were say its guaranteed. Now it is a grey area or its common sense. If there is a binding court decision common sense is out the window. The o/p wants certainty.

April 73

The OP wants to rent out the property for at least ten years.
In that case I would forget "slightly dubious" means of limiting rights to the tenants. Put your effort into finding decent tenants. In today's market it shouldn't be hard to do. Take your time, interview prospective tenants, do the background homework & get references.

Don't forget that you'll see a weighting towards horror stories on Boards. There are plenty of decent tenants out there.

4ensic15

4ensic15 wrote: »

First you were say its guaranteed. Now it is a grey area or its common sense. If there is a binding court decision common sense is out the window. The o/p wants certainty.

To me it's clear cut I wouldn't worry in the least about that case personally (I see it as an anomaly) but I can't advise someone else to do the same obviously so I toned down.

The_Conductor

April 73 wrote: »

Don't forget that you'll see a weighting towards horror stories on Boards. There are plenty of decent tenants out there.

Its the story of the internet- you hear the miracles and the nightmares- you don't tend to hear what happens to the average person.........

Grolschevik

Grolschevik wrote: »

Source? Evidence? Case?

http://www.prtb.ie/archive/2006Disputes/TRIBUNAL06/TR10_Report.pdf

4ensic15

Lila Shallow Shortstop wrote: »

http://www.prtb.ie/archive/2006Disputes/TRIBUNAL06/TR10_Report.pdf

Long overtaken by later decisions of the Tribunal and the High Court such as Zhang and Tully. Anybody depending on that decision to create a licence is a misinformed idiot.

Fkall

Can you provide a link?

4ensic15

http://www.courts.ie/Judgments.nsf/0/C44D283B4830252680257DB700404B8D

4ensic15

4ensic15 wrote: »

http://www.courts.ie/Judgments.nsf/0/C44D283B4830252680257DB700404B8D

I'm not sure what point is being made with this case the PRTB ruled it doesn't fall under their juristiction and the court upheld this. "The appeal must fail".

4ensic15

Lila Shallow Shortstop wrote: »

This case agrees with me. PRTB ruled it doesn't fall under their juristiction and the court upheld this. "The appeal must fail".

It doesn't agree with you. It upholds Zhang which overruled the Flannery case you have quoted. It demonstrates clearly that a bedroom can be a self contained residential unit. The landlord must ordinarily reside in the dwelling to avoid the RTB. "ordinarily reside" does not mean turning up at random whilst in reality living elsewhere.

Fkall

4ensic15 wrote: »

It doesn't agree with you. It upholds Zhang which overruled the Flannery case you have quoted. It demonstrates clearly that a bedroom can be a self contained residential unit. The landlord must ordinarily reside in the dwelling to avoid the RTB. "ordinarily reside" does not mean turning up at random whilst in reality living elsewhere.

No it doesn't - the high court ruling denied the appeal brougt by Zhang on the basis that Tully lived in the property.

To be fair the PRTB case, Zang vs Holohan, did include a ruling that the landlord was not residing in the dwelling - as he give evidence the only time he co-resided was for a period of three days after the parties fell into dispute i.e. a landlord cannot move into a property after a dispute arises in an attempt to negate the tenant's rights.

No ruling was made in respect of a circumstance where the landlord co-resided prior to the parties falling into dispute.

4ensic15

Fkall wrote: »

No it doesn't - the high court ruling denied the appeal brougt by Zhang on the basis that Tully lived in the property.

You have your cases mixed up. Tully was an applicabnt tenant. his landlady Myrtle Roberts lived in the property. Zhang was not decided in the High Court at all but it was endorsed.

Fkall wrote: »

To be fair the PRTB case, Zang vs Holohan, did include a ruling that the landlord was not residing in the dwelling - as he give evidence the only time he co-resided was for a period of three days after the parties fell into dispute i.e. a landlord cannot move into a property after a dispute arises in an attempt to negate the tenant's rights.

No ruling was made in respect of a circumstance where the landlord co-resided prior to the parties falling into dispute.

From Zhang:
The Respondent Landlord claimed at the Adjudication hearing that the Dwelling was
his primary residence and as such the tenancy was excluded by section 3(2)(g). This
section provides that the 2004 Act does not apply to a dwelling within which the
landlord also resides. While the Respondent Landlord did not press this claim at the
Tribunal, he did state that all his possessions were in the Dwelling. Consequently, for
completeness, we deal with this aspect.
The 2004 Act does not define “resides”. In Deutsche Bank AG v Murtagh [1995 HC]
2 IR 122 it was held that where the words “ordinarily resides” appear in a statute but
are not defined, they should be interpreted in accordance with their ordinary meaning
in the light of the general intention of the statute, We find as a matter of fact that the
Respondent Landlord stayed in the Dwelling for only three nights during the 16
month duration of the tenancy and this was after he had given notice that the Dwelling
be vacated by the Appellant Tenant and after he had removed her bed from her
bedroom. We find, as a matter of law, that this does not constitute “resides” as
required by the 2004 Act and consequently any claim that the period of residing by
the Respondent Landlord brought the tenancy outside the remit of the 2004 Act, fails.

The_Conductor

Guys- no more calling people idiots etc.
The court cases and RTB rulings cited are interesting- and helpful to read- however- given that they are not necessarily binding- they may or may not be of assistance to the OP.

Key to this- in my mind- is where the landlord is 'ordinarily resident'. If the landlord cannot be said to be ordinarily resident in the property- irrespective of the fact that he/she has kept a bedroom free for their use- the licensee or tenant (whatever they are determined to be) could justifiably argue- and good luck refuting it- that they ordinarily have and are entitled to- sole and peaceful occupancy of the dwelling...........

The OPs idea that staying over a couple of nights each year (I think they said 4 or 5 nights per year)- to extinguish the tenancy rights of the occupant- is ripe for rebuttal at an RTB tribunal- irrespective of what 'binding agreement' the OP's solicitor comes up with- or indeed, what level the OP sets the rent at..........

If the OP is genuinely worried about his/her property- they should set an appropriate deposit commensurate to the risk they associate with the property- and/or do their utmost to ensure the tenant they procure for their property takes the level of care of the property that the OP considers appropriate.

Personally- I abhor the OP's suggested course of action- and feel it is dangerous and sets them up for a dispute with their 'tenant' down the road. It doesn't matter what level you set the rent at- if the tenant has a reasonable expectation of peace and quiet- and you randomly parachute in on top of them- when they don't want you to- it doesn't matter what agreement you have- or what rent they're paying- you are disturbing their peaceful living- and they will be pissed- wholly irrespective of what you've made them sign. It is a recipe for strife.

4ensic15

The_Conductor wrote: »

Key to this- in my mind- is where the landlord is 'ordinarily resident'. If the landlord cannot be said to be ordinarily resident in the property- irrespective of the fact that he/she has kept a bedroom free for their use- the licensee or tenant (whatever they are determined to be) could justifiably argue- and good luck refuting it- that they ordinarily have and are entitled to- sole and peaceful occupancy of the dwelling...........

The occupants can't argue that they are entitled to possession of the entire if all they have leased is one bedroom. The issue is whether they are entitled to be deemd to be a tenant of a dwelling, which the Tribunal in Zhang says they are and the High Court agrees, and if so is the o/p obliged to pursue them through the RTB if they act up, refusing to pay rent, damaging the property etc.
At the very least no guarantees can be given to the o/p that they will succeed in keeping the letting out of the clutches of the RTB. The decisions of that body indicate otherwise. The o/p could end up with the worst of both worlds, no rent from the vacant room and an expensive legal case plus a troublesome tenant.

The_Conductor

I am only aware of this interpretation falling- where there were multiple bedrooms let in the property- and the licensee shared common areas. This licensee could quite legitimately argue that they aren't sharing common areas- they ordinarily have sole use of all areas (of course bar the bedroom in question- however- if thats ordinarily vacant- I'd argue that its moot........)

All it takes is the occupant to dispute the position with the RTB- and you'd have strangers looking at it- who may go either way.

4ensic15

The_Conductor wrote: »

I am only aware of this interpretation falling- where there were multiple bedrooms let in the property- and the licensee shared common areas. This licensee could quite legitimately argue that they aren't sharing common areas- they ordinarily have sole use of all areas (of course bar the bedroom in question- however- if thats ordinarily vacant- I'd argue that its moot........)

All it takes is the occupant to dispute the position with the RTB- and you'd have strangers looking at it- who may go either way.

Zhang was the only occupant.

SarahMollie

It sounds to me like the OP is trying to mitigate against giving tenants any real rights by offering a reduced rent for 98% use of a 2 bed apartment.

Maybe someone will go for it, maybe not.

I personally don't think there is anyway to give a cast iron guarantee that this arrangement will protect him in the future if he happens to get into a dispute with the people also living there.

I think you should either rent it properly or set it up as an AirBnB.

Having access for 5 nights a year doesn't make sense as hotels/taxis are going to be much more cost effective. I think any court could likely interpret this arrangement as seeking to circumvent tenants rights.

yqtwqxqm

OP I have several family members including myself involved in letting property.
One is a brother who stays in a room in his property once a month or so (probably not even that often). He lives in a different property that he owns.
He rents out the other room on a room only basis.
He advertised it as a room share and treats it like a room share.
Halfs the electricity bill but no other bills.
He has taken the necessary steps to ensure that this is all above board.
Talk to a solicitor who you are happy is up to date on lettings and get advice from them.
I can tell you that what is allowed is to rent a room in house share and keep the other room for your use and the person renting the other room is a licensee.
But you should go and get independent advice and not take mine or anybody elses opinion on the internet as fact. Satisfy yourself so you arent afraid of a knock at the door in a few years.

4ensic15

yqtwqxqm wrote: »

OP I have several family members including myself involved in letting property.
One is a brother who stays in a room in his property once a month or so (probably not even that often). He lives in a different property that he owns.
He rents out the other room on a room only basis.
He advertised it as a room share and treats it like a room share.
Halfs the electricity bill but no other bills.
He has taken the necessary steps to ensure that this is all above board.
Talk to a solicitor who you are happy is up to date on lettings and get advice from them.
I can tell you that what is allowed is to rent a room in house share and keep the other room for your use and the person renting the other room is a licensee.
But you should go and get independent advice and not take mine or anybody elses opinion on the internet as fact. Satisfy yourself so you arent afraid of a knock at the door in a few years.

Has your brother had to go to the RTB at any stage?

gabsdot40

If you'll only use the room 5 times a year why not rent out the whole flat and stay in a hotel on the 5 occassions, you'll be quids in.