Can a landlord refuse Part 4? also address query

TonyTBB

Hi,

If a tenant send, three months before the end of his fixed-term lease/contract (not too early, not too late), a letter to his landlord to ask for a Part 4 Tenancy, can the landlord refuse it and ask him to leave at the end of the fixed-term?

Thanks

Also

If nothing related is specified on the lease:
- Can a tenant use his home address as the registered address of his (private limited) company?
- Can the company issue invoices from this address (ie. use the address as business address)?

Thanks,

athtrasna

TonyTBB wrote: »

Hi,

If a tenant send, three months before the end of his fixed-term lease/contract (not too early, not too late), a letter to his landlord to ask for a Part 4 Tenancy, can the landlord refuse it and ask him to leave at the end of the fixed-term?

Thanks,

Only if the fixed term was less than six months or was for 4 years only. Part IV rights are acquired after six months

Pro Hoc Vice

TonyTBB wrote: »

Hi,

If a tenant send, three months before the end of his fixed-term lease/contract (not too early, not too late), a letter to his landlord to ask for a Part 4 Tenancy, can the landlord refuse it and ask him to leave at the end of the fixed-term?

Thanks,

That's not how it works, by operation of law after 6 months a part 4 comes in to existence.

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.

TonyTBB

In that case, this is a 12 months fixed-term contract, so the tenant has been in occupation for more than 6 months.

athtrasna

TonyTBB wrote: »

In that case, this is a 12 months fixed-term contract, so the tenant has been in occupation for more than 6 months.

Then they already have part IV protection

TonyTBB

So, what is the point to signing a lease for more than 6 months? Is it useless?

athtrasna

TonyTBB wrote: »

So, what is the point to signing a lease for more than 6 months? Is it useless?

It cannot be terminated until the fixed term element has expired, in theory anyway.

The_Conductor

TonyTBB wrote: »

So, what is the point to signing a lease for more than 6 months? Is it useless?

A formal fixed term lease cannot take from any of the terms of a Part IV tenancy- it can however give additional rights to a tenant (notably security of tenure)- and it is normally used as a mechanism for spelling out the terms of the tenancy (the rights and obligations of both the tenant and the landlord).

Any stipulations in a fixed term lease- which run contrary to the terms as spelt out in the Residential Tenancies Act for a Part IV tenancy- are null and void and unenforceable- as a tenant cannot, under law, be offered, or agree to accept, conditions which are not at least as good as those afforded to a Part IV tenancy.

Note- a landlord can activate clauses to terminate a Part IV tenancy for a variety of reasons (listed in the Act)- a tenant with a Fixed Term Lease- will normally be protected from a landlord doing this. An example of which would be the landlord stating that he or a family member required the property- or that major works are to be undertaken in the property (for example).

There are pros and cons to both a Part IV and a Fixed term lease- however- the Residential Tenancies Act is firmly in tenant's favour- whether they realise it or not.

whomitconcerns

Op your latter points would usually be breach of a lease. Conducting a business from a residential address will usually not be allowed.

The_Conductor

With respect of a tenant using a residential address as a company address- or indeed issuing invoices etc from the address- I don't see what the issue is- providing they are not in fact conducting business from the address. If they step over the threshold of conducting business from the address however- it opens other issues- such as a change of use for the address- and the probability of the local authority/council demanding commercial rates (in addition to property tax- which may be calculated differently if its no longer solely a residential dwelling.

You need to get proper advice on this- and you need to have all your facts straight beforehand. Don't rely on information you find on the internet.

whomitconcerns

Well if it's the registered address of a company I want to serve papers on or visit or make a delivery to etc then I will be turning up at that address. Surely that sufficient for overstepping the usage?

whomitconcerns

whomitconcerns wrote: »

Well if it's the registered address of a company I want to serve papers on or visit or make a delivery to etc then I will be turning up at that address. Surely that sufficient for overstepping the usage?

If the work isn't happening at the address or only a limited amount (such as doing paper work in the evening etc) then I can't see why there would have to be a change of use. By your reckoning every self employed tradesman would have to either change the use of his home to a business or get a separate business address, both of which would be complete madness which I'm sure you would agree.

whomitconcerns

But I mean in terms of a lease. It's always been very clear in any lease I had that no form of business dealings could be based there. In general somone owning their own home I would agree.

Lux23

The_Conductor wrote: »

With respect of a tenant using a residential address as a company address- or indeed issuing invoices etc from the address- I don't see what the issue is- providing they are not in fact conducting business from the address. If they step over the threshold of conducting business from the address however- it opens other issues- such as a change of use for the address- and the probability of the local authority/council demanding commercial rates (in addition to property tax- which may be calculated differently if its no longer solely a residential dwelling.

You need to get proper advice on this- and you need to have all your facts straight beforehand. Don't rely on information you find on the internet.

Maybe the CRO or Rev Commissioners would be better placed to answer that query.

Pro Hoc Vice

whomitconcerns wrote: »

But I mean in terms of a lease. It's always been very clear in any lease I had that no form of business dealings could be based there. In general somone owning their own home I would agree.

From the OP "If nothing related is specified on the lease:"

TonyTBB

Thanks everyone for your information.

4ensic15

The_Conductor wrote: »

With respect of a tenant using a residential address as a company address- or indeed issuing invoices etc from the address- I don't see what the issue is- providing they are not in fact conducting business from the address. If they step over the threshold of conducting business from the address however- it opens other issues- such as a change of use for the address- and the probability of the local authority/council demanding commercial rates (in addition to property tax- which may be calculated differently if its no longer solely a residential dwelling.

You need to get proper advice on this- and you need to have all your facts straight beforehand. Don't rely on information you find on the internet.

A registered company has to have a plate on display outside its place of business and has to have books available for inspection by shareholders at the address. Also the Companies Act requires service of notices on the company to be served at the registered office. Registration at an address automatically causes business to be done there. Most people use a company secretarial office or an accountants office as the registered address so that their private home is not linked to their business.

Pro Hoc Vice

4ensic15 wrote: »

A registered company has to have a plate on display outside its place of business and has to have books available for inspection by shareholders at the address. Also the Companies Act requires service of notices on the company to be served at the registered office. Registration at an address automatically causes business to be done there. Most people use a company secretarial office or an accountants office as the registered address so that their private home is not linked to their business.

The requirement is to display the name of the company in a "conspicuous position, in letters easily legible, outside ". In relation to the books these are only to be made available to the shareholders, in most cases that is no more than the two people involved. To the best of my knowledge there is no case on the issue, but for example if it was a planning issue I do not think the courts would find a material change of use.

mahamageehad

Maybe I'm not reading this right, but are you guys saying that at the end of a fixed term one year lease, you can't ask a tenant to leave? Surely that's the point of a fixed term lease? Is extending the lease not the landlords prerogative??

Pro Hoc Vice

mahamageehad wrote: »

Maybe I'm not reading this right, but are you guys saying that at the end of a fixed term one year lease, you can't ask a tenant to leave? Surely that's the point of a fixed term lease? Is extending the lease not the landlords prerogative??

You can always ask a tenant to leave. The only thing is once a Part IV tenancy is in place then certain rules apply.

paul71

Pro Hoc Vice wrote: »

The requirement is to display the name of the company in a "conspicuous position, in letters easily legible, outside ". In relation to the books these are only to be made available to the shareholders, in most cases that is no more than the two people involved. To the best of my knowledge there is no case on the issue, but for example if it was a planning issue I do not think the courts would find a material change of use.

The books he is referring to are the Shareholders register, the articles and association of the company and the certificate of incorporation. These items are required under the Companies act to be available for inspection by any member of the public at the Companies registered office.

Pro Hoc Vice

paul71 wrote: »

The books he is referring to are the Shareholders register, the articles and association of the company and the certificate of incorporation. These items are required under the Companies act to be available for inspection by any member of the public at the Companies registered office.

(9) The following shall be open to the inspection of any other person, on payment of the relevant fee:

(a) the directors' and secretaries' register;

(b) the disclosable interests register;

(c) the members' register.

http://www.irishstatutebook.ie/eli/2014/act/38/section/216/enacted/en/html

(3) Subject to subsections (4) and (5), a register or document to which this section applies shall be kept at—

(a) the registered office of the company;

(b) its principal place of business within the State; or

(c) another place within the State.

The_Conductor

Guys- we're swerving so far off the remit of this forum here, its not funny.
Back on the Accommodation and Property aspect of the OP's query- or else I'll have to move this thread elsewhere.

ted1

TonyTBB wrote: »

So, what is the point to signing a lease for more than 6 months? Is it useless?

Because you then have a duty to provide notice to the landlord

4ensic15

Pro Hoc Vice wrote: »

The requirement is to display the name of the company in a "conspicuous position, in letters easily legible, outside ". In relation to the books these are only to be made available to the shareholders, in most cases that is no more than the two people involved. To the best of my knowledge there is no case on the issue, but for example if it was a planning issue I do not think the courts would find a material change of use.

There is case law regarding planning but that is not the relevant issue. The question is whether
this sectiuon is opoerative thus taking the tenancy out of the ambit of the RTb

3.—(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act).

(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—

(a) a dwelling that is used wholly or partly for the purpose of carrying on a business, such that the occupier could, after the tenancy has lasted 5 years, make an application under section 13 (1)(a) of the Landlord and Tenant (Amendment) Act 1980 in respect of it,

Pro Hoc Vice

4ensic15 wrote: »

There is case law regarding planning but that is not the relevant issue. The question is whether
this sectiuon is opoerative thus taking the tenancy out of the ambit of the RTb

3.—(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act).

(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—

(a) a dwelling that is used wholly or partly for the purpose of carrying on a business, such that the occupier could, after the tenancy has lasted 5 years, make an application under section 13 (1)(a) of the Landlord and Tenant (Amendment) Act 1980 in respect of it,

2 (a) applies to commercial lettings, I'm sure the OP does not want to go down that road as if he claims it's a commercial letting then PRTB does not apply and the tenant maybe entitled to a long lease.i am assuming the OP is a LL.

Planning legislation will apply as decisions in that area about material change of use would be looked at by the court as I am not aware of any case law in landlord and tenant law.

Also the relevant section says subject to 4 (2) which says

"2) The definition of “dwelling” in subsection (1) shall not apply in relation to the construction of references to “dwelling” to which this subsection applies; each such reference shall be construed as a reference to any building or part of a building used as a dwelling (whether or not a dwelling let for rent or valuable consideration) and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it."

The definition of dwelling

"dwelling” means, subject to subsection (2), a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel and a vehicle (whether mobile or not);"

Taking your logic to its conclusion, I move into a house I set up a limited liability company, I send out my invoices and receive post I put my company name up on my post box. Then five years later I demand a long lease under the 1980 Act from my landlord.

4ensic15

Pro Hoc Vice wrote: »

2 (a) applies to commercial lettings, I'm sure the OP does not want to go down that road as if he claims it's a commercial letting then PRTB does not apply and the tenant maybe entitled to a long lease.i am assuming the OP is a LL.

Planning legislation will apply as decisions in that area about material change of use would be looked at by the court as I am not aware of any case law in landlord and tenant law.

Also the relevant section says subject to 4 (2) which says

"2) The definition of “dwelling” in subsection (1) shall not apply in relation to the construction of references to “dwelling” to which this subsection applies; each such reference shall be construed as a reference to any building or part of a building used as a dwelling (whether or not a dwelling let for rent or valuable consideration) and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it."

The definition of dwelling

"dwelling” means, subject to subsection (2), a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel and a vehicle (whether mobile or not);"

Taking your logic to its conclusion, I move into a house I set up a limited liability company, I send out my invoices and receive post I put my company name up on my post box. Then five years later I demand a long lease under the 1980 Act from my landlord.

It is not the o/p who would want to go the commercial route. There is normally a clause in residential leases obliging the tenant to use the property as a residence only and not to carry on any business, trade or profession from it. Registering a company may put a tenant in breach of this covenant even if there is no breach of planning. The landlord may restrict business use lest he be hit with an application under the 1981 Act which would devalue his property.