Avoiding the Additional Rights Bestowed by a Further Part 4 Tenancy

Graham

Can a landlord avoid the additional rights granted to a tenant by a Further Part 4 Tenancy.

Specifically, a tenant acquires rights to additional notice periods after a continuous tenancy of 6 months, 1/2/3/4/5/6/7/8years.

Can a landlord avoid the increasing notice requirements by issuing a valid termination notice (say at 4 years) then subsequently allowing the tenant to remain in occupation for following years? Essentially claiming that the first 4 year tenancy has ended but because a valid notice to terminate was issued the next 4 year tenancy is a new Part 4 Tenancy rather than a Further Part 4 tenancy.

Personally I can't see how the RTB or Courts would look at such an action as anything other than an attempt by a landlord to deprive a tenant of his rights under the RTA but I'm open to correction.

This is a purely hypothetical question arising from a suggestion in another thread for a situation that hasn't actually arisen.

TLDR: can a landlord use a valid notice of termination to reset the clock on a subsequently ongoing tenancy?

endacl

Can you bend the rules to suit you, to the detriment of your tenant?

No.

Graham

endacl wrote: »

Can you bend the rules to suit you, to the detriment of your tenant?

No.

That would be my thinking otherwise what would be stopping landlords issuing notice every 5 months and claiming the tenant never acquired part 4 rights.

4ensic15

The only way to know for sure is to try it and see. The RTB is notoriously pro tenant and are likely to construe the situation of the Notice of Termination being withdrawn on the creation of the new lease.

Graham

4ensic15 wrote: »

The RTB is notoriously pro tenant and are likely to construe the situation of the Notice of Termination being withdrawn on the creation of the new lease.

I think that suggested interpretation makes absolute sense. The contrary was suggested with such confidence that I started to question my understanding:

In reality no sane landlord should allow the Tenant to get into a Further Part 4 tenancy: he should give notice as soon as Part 4 expires and propose a new Tenancy Agreement if he wishes to keep the tenant.

GGTrek

4ensic15 wrote: »

The only way to know for sure is to try it and see. The RTB is notoriously pro tenant and are likely to construe the situation of the Notice of Termination being withdrawn on the creation of the new lease.

I agree and such construction could be challenged to the High Court to really set a precedent, I have done some research and the High Court has reverted RTB Tribunal decisions on points of law a few times. But in any case I would not be as sure as the OP is, since the RTA has got no section that expressly prohibits it.

Graham

In this hypothetical scenario the tenant has not given up the property and the notice has not been enforced.

It's not a huge leap to suggest it's an ongoing tenancy based on the continuous occupation.

foggy_lad

Graham wrote: »

In this hypothetical scenario the tenant has not given up the property and the notice has not been enforced.

It's not a huge leap to suggest it's an ongoing tenancy based on the continuous occupation.

Unless the tenant moves out for a period and also moves all their property out there has been no break in the tenancy.

Landlords rarely give leases longer than 9 years and 10 months as if they go over a certain time the tenant obtains security of tenure and to avoid this the tenant must physically break the tenancy by moving out and moving their belongings into storage for about a week afaik

4ensic15

foggy_lad wrote: »

Unless the tenant moves out for a period and also moves all their property out there has been no break in the tenancy.

Landlords rarely give leases longer than 9 years and 10 months as if they go over a certain time the tenant obtains security of tenure and to avoid this the tenant must physically break the tenancy by moving out and moving their belongings into storage for about a week afaik

Tenants never gain security of tenure, no matter how long they reside in a property.

Graham

foggy_lad wrote: »

Unless the tenant moves out for a period and also moves all their property out there has been no break in the tenancy.

That's also the opinion of another Irish law firm:

It should be noted that the creation of successive tenancies of six months shall not defeat the provisions of the Act as it is the period of occupation that triggers the entitlements under Part 4.

It's hard to see how the same wouldn't apply to further part 4 tenancies.

foggy_lad

Graham wrote: »

That's also the opinion of another Irish law firm:



It's hard to see how the same wouldn't apply to further part 4 tenancies.

There is that part in the RTA that states a tenant can't sign away any of the rights or entitlements bestowed on them by the RTA so the Further part 4 is a right the tenant has which can not be signed away by signing a new lease.

If a landlord offers a 4 year lease and gives notice coming to the end of the 4 years the tenant must move out with all their belongings or they are considered to still be tenants. Afaik they must move out for at least 3 weeks for any further rental agreement to be considered a new rental period and not a further part 4.

GGTrek

"Landlords rarely give leases longer than 9 years and 10 months as if they go over a certain time the tenant obtains security of tenure and to avoid this the tenant must physically break the tenancy by moving out and moving their belongings into storage for about a week afaik"

Please quote me the law or any judgement that Tenants obtain security of tenure after 9 years and 10 months. This is a huge leap. It used to be 20 years and I thought it was still valid, but apparently RTA 2004 abolished this possibility for tenancies after RTA.

4ensic15

foggy_lad wrote: »

There is that part in the RTA that states a tenant can't sign away any of the rights or entitlements bestowed on them by the RTA so the Further part 4 is a right the tenant has which can not be signed away by signing a new lease.

If a landlord offers a 4 year lease and gives notice coming to the end of the 4 years the tenant must move out with all their belongings or they are considered to still be tenants. Afaik they must move out for at least 3 weeks for any further rental agreement to be considered a new rental period and not a further part 4.

Where does this 3 week period come from?

Mr. Incognito

If the Notice of Termination is not enforced it lapses and the tenancy continues from the original start date.

foggy_lad

GGTrek wrote: »

"Landlords rarely give leases longer than 9 years and 10 months as if they go over a certain time the tenant obtains security of tenure and to avoid this the tenant must physically break the tenancy by moving out and moving their belongings into storage for about a week afaik"

Please quote me the law or any judgement that Tenants obtain security of tenure after 9 years and 10 months. This is a huge leap. It used to be 20 years and I thought it was still valid, but apparently RTA 2004 abolished this possibility for tenancies after RTA.

4ensic15 wrote: »

Where does this 3 week period come from?

I was thinking of the old system before the RTA where tenants got elevated rights the longer they were tenants, as stated that was removed by the new act.

GGTrek

Correct I found the relevant section of the RTA 2004 mentioned by 4ensic15 that removed long occupation equity (this is the right legal term):
192. (1) In this section Act of 1980 has the same meaning as it has in section 191 .

(2) Subject to subsection (3), on and from the fifth anniversary of the relevant date, Part II of the Act of 1980 shall not apply to a dwelling to which this Act applies.
(3) Subsection (2) does not have effect in relation to a dwelling in respect of which the tenant has served a notice of intention to claim relief under and in accordance with section 20 of the Act of 1980 before the fifth anniversary mentioned in that subsection.