Problem with the RTB - notice of termination

erudec · 02-01-2017 9:58am #1

My cousin has a problem with the flat he owns. He's been renting it for years to this couple. He's been trying and failing to get them evicted for two years now, as he needs to sell it.

He's recently developed cancer and has been fighting it. Unfortunately this has meant he's been too sick from the chemo to attend many meetings with lawyers.

He's gone through more than one lawyer. His first one was a family lawyer and they served a notice of termination on his tenants. The tenants stayed on past the notice of termination and asked for more time.

My cousin was going to take a case against the tenants with the RTB, but he got sick and for months was unable to do anything. The tenants stayed put and kept paying rent. When he finally got well enough to deal with his property matters again, his lawyer (whose practice is based four hours drive from the rented house) told him that my cousin should get another lawyer, one based in the same area as the flat. Otherwise, the original lawyer said, he'd need to charge my cousin extra for the travel to and from the RTB hearings. Also, the lawyer said that he should go and see a property specialist.

So he went to a new solicitor, and he said "we've looked at your file and we suggest you send a new notice of termination to the tenants. "

So he did that: signed the new notice of termination and the new lawyer submitted it. He was still rather sick so didn't look into the terms of the new notice of termination.

But when he did he immediately had a conversation with the new lawyer who said "There have been some new changes to the RTB law giving extra notice periods to long-term tenants, so they won't be required to leave until late 2017. And if they refuse to leave again, you'll have to wait until the RTB sets a hearing, so you could be looking at 2018 before you can sell the house".

He's quite upset about this, as he had thought the original notice of termination was sufficient grounds to ask them to leave immediately, as they had stayed on long beyond the stated date.

The lawyer, of course, is off on a sun holiday for the next while, so he's upset over the situation and can't get answers. I have offered to read up and try to research this, to figure out what might have gone wrong while he was sick with chemo.

Here's what I know: the original notice of termination was based on the online template from the RTB. It gave what appears to me to be the correct notice period based on the law at the time. It was served on the tenants in the proper fashion.

Now I'm stumped. Why wouldn't the new lawyers be able to go to the RTB based on the original notice of termination?

Yes, my cousin was totally inactive during his chemo, not managing any of his business affairs. Why would the new lawyer be saying "get a new notice of termination, including a new year-long wait before the tenants get out" unless the old notice of termination was faulty in some way?

Or was there something that he should have done regarding the old notice of termination after it was served? Can he ask the RTB to make an exception as he was too sick to do anything after the old notice of termination was served?

My main questions: Is there some kind of a "time limit" on a notice of termination?

Is there "use it or lose it" element to a notice of termination? I have read through the law in its entirety and there is no reference to any time limit.

From what I understood of the law, the fact that he was sick with chemo shouldn't mean that the first notice of termination becomes invalid. If the notice of termination was valid to begin with, the fact that he was sick and unable to come to any tribunals shouldn't wreck his case, should it?

If you have experience with the RTB from the landlord's side, I'd welcome any serious speculations you might have about this. His plans have been destroyed by the news that he's stuck with these tenants for another year.

ED E · 02-01-2017 10:04am

How long were the tenants in situe when the first notice was served, and how long are they now?

erudec · 02-01-2017 10:19am

ED E wrote: »

How long were the tenants in situe when the first notice was served, and how long are they now?

Not 100% sure, I believe it was over 4 years, though.

While he was sick, some of his paperwork went missing. We think it was thrown in the bin by a relative who was looking after him and didn't understand how important the paperwork was.

His lawyer has managed to look at the paperwork and he did actually establish the starting date of the tenancy, but I don't have that document to hand and the lawyer is unavailable.

All I have are approximate dates.

As it was over 4 years, my understanding is that a new part IV tenancy would have applied.

He could (I think) have evicted them in this period and given them somewhere between 28 and 56 days notice. Of course he did nothing but try to beat cancer. And it feels like he's being punished for being sick.

ED E · 02-01-2017 10:35am

Not 56 I'm afraid.

The length of notice required depends on the length of your tenancy. The Residential Tenancies (Amendment) Act 2015 increased the notice periods for tenancies of 5 years or longer in duration, with effect from 4 December 2015.

Length of tenancy	Notice that the landlord must give
Less than 6 months	4 weeks (28 days)
6 months or longer but less than 1 year	5 weeks (35 days)
1 year or longer but less than 2 years	6 weeks (42 days)
2 years or longer but less than 3 years	8 weeks (56 days)
3 years or longer but less than 4 years	12 weeks (84 days)
4 years or longer but less than 5 years	16 weeks (112 days)
5 years or longer but less than 6 years	20 weeks (140 days)
6 years or longer but less than 7 years	24 weeks (168 days)
7 years or longer but less than 8 years	28 weeks (196 days)
8 years or longer	32 weeks (224 days)

In the absence of hard info lets say its at least 140 days.

...so they won't be required to leave until late 2017. And if they refuse to leave again, you'll have to wait until the RTB sets a hearing, so you could be looking at 2018 before you can sell the house

So assuming the new notice was recent then keys should be back around April (early 2017 not late) unless they're there longer. The second part of what the new solicitor said refers to them ignoring a valid termination. Thats a 12-36 month process as you must go through the RTB and once concluded go to the courts to receive enforcement. Its a worst case scenario. A common tactic in those circumstances is to pay(bribe) the tenant to leave of their own accord as its cheaper than the correct process. A solicitor may not suggest it as its not in their interest.

erudec · 02-01-2017 10:45am

<quote snipped>

I believe the original notice of termination was served prior to 4 December 2015. If I understand correctly, that means the extra notice periods do not apply.

Again, due to the missing documents I can't say for sure.

If I follow you correctly, you are saying "maybe the original notice of termination was invalid due to giving the incorrect notice period"?

Because the original notice of termination was drawn up and submitted entirely on the advice of the first solicitor. If the solicitor provided an invalid document, does that mean my cousin might have some recourse against that solicitor, in theory, hypothetically?

ED E wrote: »

Thats a 12-36 month process as you must go through the RTB and once concluded go to the courts to receive enforcement.

If you have the time, could you sketch out that process? I thought the RTB usually granted hearings within 3-4 months.

Rachiee · 02-01-2017 11:15am

It sounds like a very long time may have passed between now and the time the original notice was issued. So the tenant may argue that when they werent persued through the rtb initially the landlord implicitly agreed for them to continue their tenancy. Although its probably possible to apply to the rtb stating they have been overholding since the original notice of termination the outcome is more likely to be decided in your cousins favour if he has all his ducks in row and re-issues the notice of termination as recommended by the solicitor.

davindub · 02-01-2017 11:35am

Just explain to the tenants the house is going on the market and there will be people coming to view the property on 3/4 dates. Tell them you need vacant possession

Then give notice using this template - watch the notice period, assume the original notice was invalid if you are not sure!
http://www.rtb.ie/dispute-resolution/dispute-resolution/sample-notices-of-termination

If the tenants refuse to move try this 1st:
http://www.rtb.ie/telephone-mediation-process

If they are resolute to overhold, you have a longer process. But in the meantime, increase the rent if you can (2 years between rent reviews and then proper notice). But once the tenants realise the property is to be sold, they will normally start looking for somewhere else. But because they have already overheld (but paid rent) expect the worse. But raise hell in other ways, if your cousin agrees, his would be an interesting story for the press - needs money for treatment and this family won't let him raise it, etc

erudec · 02-01-2017 11:37am

Rachiee wrote: »

It sounds like a very long time may have passed between now and the time the original notice was issued. So the tenant may argue that when they werent persued through the rtb initially the landlord implicitly agreed for them to continue their tenancy. Although its probably possible to apply to the rtb stating they have been overholding since the original notice of termination the outcome is more likely to be decided in your uncles favour if he has all his ducks in row and re-issues the notice of termination as recommended by the solicitor.

My cousin says he assumes that the new notice supercedes the original notice.

Do you have any experience with the RTB? I don't. ED E says the process to pursue them for ignoring the original notice might take between 12 and 36 months.

When he first raised this issue of the RTB, he was told by the solicitor that he should expect his hearing in 2 to 6 months.

I presume this means the process is something like:

(remember the list below is guesswork, nobody should use this list as a reference!)

Go to RTB to pursue them for failure to comply with valid notice.
Wait for hearing (several months).
Attend hearing.
Wait for determination order (several months).
Tenants appeal determination order.
Wait for appeal hearing (several months).
Attend appeal hearing.
Wait for appeal decision (several months).
RTB confirms determination order.
Apply to court for "eviction permit" (sorry, I know it's probably called something else; several months).
Court grants "eviction permit".
Tenants appeal "eviction permit" in court.
Wait for appeal decision (several years?) from court.
Appeal rejected by court.
Apply to sheriff to take place in the queue to evict tenants (several months).
Sheriff evicts tenants.

If anyone knows the process and sees some errors in my guesswork, I would be hugely grateful if you could point it out.

Mrs OBumble · 02-01-2017 12:44pm

I'm not going to comment on the process.

But the reality is that a professional landlord would offer to give the tenants an excellent reference (which they'll need to find somewhere else) and to pay them for leaving swiftly. You can mess around with the RTB etc process for years, or you can make things happen. But not both.

GGTrek · 02-01-2017 12:59pm

I see a few overestimations in the eviction process and it needs some fixing up. A suggestion of going to the press is useful, it is about time the other side of the story is heard, particularly now with the new regulations.

First of all, the main question, are the tenants wealthy? You need real wealth do perform some of the steps you outlined above after RTB process, government legal aid has been severly curtailed and I seriously doubt the government is going to pay a barrister for the tenants for an eviction case where the tenant has already lost all the RTB process. So assuming your tenants have limited means what is going to happen is:

- Present the new notice of termination to tenant using the template that was provided above with the right period of notice (you have not said how long the tenants have been inside the property, so no way to answer)

- Wait for the tenant to overhold, on the first day of overholding submit an adjudication dispute to RTB (you could try mediation if you have the feeling the tenants are reasonable people, but for the looks of all their current overholding they are not)

- At the moment an RTB adjudication hearing happens between 4-6 weeks after submitting the dispute, attend the hearing with someone that understands tenancy law in Ireland

- Within 10-14 calendar days from the hearing the adjudicator will issue his report ordering to vacate the dwelling

- With the new rules introduced in December 2016, the tenant has 10 calendar days to appeal the RTB adjudication to Tribunal

- If the tenant appeals, then expect a wait that goes from 3 to 6 months (more on the 6 months side for sale related terminations), put pressure on RTB case officers using the health state to get the Tribunal hearing as soon as possible

- Attend the Tribunal hearing with a Solicitor who is well versed in Tenancy law. You will need a solicitor that knows Irish Tenancy Law for the Tribunal, since it is a much more formal process. Solicitor attending and presenting your case will cost you between 300-700 euros.

- Within a month the Tribunal will issue its report to vacate.

- At this point unless the tenant is very wealthy or very knowledgeable to appeal to High Court, the RTB process will stop in 99% of the cases

- As soon as report becomes effective (published and within the timeframes established to vacate by the Tribunal) and the tenant keeps overholding, unless you want to wait for the RTB to enforce it (you can use again the health reason to request urgency), you need to instruct your solicitor to hire a Barrister at the District Court to enforce the RTB order. This will cost you between 1500 and 3000 euros in solicitor and barrister fees (of which you will recover very little from tenant unless your landlord insurance covers legal fees)

- Depending on the District Court waiting times (could be from a few weeks to a few months) your barrister will attend the hearing and get summons to evict the tenant with sheriff. You have not said where the property is located so not possible to even guess the District Court. Forget appealing the District Court summons, in 99% of the cases the tenants have neither the legal skills nor the financial means to do this.

- Finally you pay eviction fees to the local sheriff and wait in his queue (again length of queue depends on location) for a few weeks (not months), I read in some paper that it is always good to request presence of Garda at the time/day of eviction if force is needed to kick out the tenants (rare, but it happens) and even more important hire a locksmith to be available at the same time the sheriff is there to open the doors forcefully (the sheriff will not do it) and immediately change all the locks

Good luck, you will need it

erudec · 02-01-2017 1:03pm

Mrs OBumble wrote: »

I'm not going to comment on the process.

But the reality is that a professional landlord would offer to give the tenants an excellent reference (which they'll need to find somewhere else) and to pay them for leaving swiftly. You can mess around with the RTB etc process for years, or you can make things happen. But not both.

Edit: I posted this before seeing GGTrek's post. Feel free to ignore it!

I hear you.

I respect your decision not to talk about the process.

I still humbly request of other posters who may know what the RTB process is to write as much as they know, or think they know about it here.

My cousin will certainly not do anything until the process question is cleared up. If nobody on here feels like saying anything, that's truly fine, I will not be nasty about it. He'll find out from the lawyer when he gets back from the tropics. If you accidentally give him the wrong info, you are automatically forgiven and have no liability. It is better to say something wrong than to say nothing.

If you're worried that you might send him wrong, please don't worry. He and I know full well that nothing posted on here constitutes legal advice. He's a very cautious man, and he won't commit to any course of action without triple-checking with a legal professional, and getting advice in writing.

It would be a certain relief, though, if a poster were to say "I think the process is X instead of Y". And if the poster is wrong, no worries, the lawyer will put him straight.

GGTrek · 02-01-2017 1:13pm

If your cousin property is in Dublin, I can refer some solicitors that are experienced on Tenancy Law (i.e. the Residential Tenancies Act 2004, its amendments and case law). Please send me a private message if needed.

Also I made an error in the process described above, at the moment the enforcement is done in Circuit Court, however there is a law already approved by the Oireachtas that will move the enforcement to the District Court, it needs the go-ahead from a Minister, so not sure when this is going to happen.

GGTrek · 02-01-2017 1:26pm

Deep pockets for High Court? We are talking tens of thousand of euros in legal costs here! At the High Court they will go straight against the RTB (i.e. the government), not you directly. The RTB has some of the best barristers available in Ireland to defend its cases at the High Court. The very few tenants that appealed to High Court were either test cases supported by some big tenant associations or tenants who were very skilled and in person (no barrister for them).

erudec · 02-01-2017 1:35pm

GGTrek wrote: »

Deep pockets for High Court? We are talking tens of thousand of euros in legal costs here! At the High Court they will go straight against the RTB (i.e. the government), not you directly. The RTB has some of the best barristers available in Ireland to defend its cases at the High Court. The very few tenants that appealed to High Court were either test cases supported by some big tenant associations or tenants who were very skilled and in person (no barrister for them).

Well, that's heartening! I assumed it was more like five or six thousand.:)

Is this one of those situations where you can only appeal against the RTB on a point of law?

Also, I know it's probably unlikely to arise, but did you ever hear of any of these tenants succeeding in their High Court cases against the RTB?

Please accept my extreme gratitude, GG!

davindub · 02-01-2017 7:16pm

erudec wrote: »

Well, that's heartening! I assumed it was more like five or six thousand.:)

Is this one of those situations where you can only appeal against the RTB on a point of law?

Also, I know it's probably unlikely to arise, but did you ever hear of any of these tenants succeeding in their High Court cases against the RTB?

Please accept my extreme gratitude, GG!

Yes, there was one case taken to the HC this year where intention to sell was an issue. But there was some relevant comments from the judge on the meaning of intent to sell. But obviously this decision is now binding on the adjudication process.

Your solicitor will go through the meaning of that case for you if adjudication route is used (i.e. will be bound by HC ruling) rather than mediation (try to reach mutual agreement).

GGTrek · 02-01-2017 8:51pm

erudec wrote: »

GGTrek wrote: »

Deep pockets for High Court? We are talking tens of thousand of euros in legal costs here! At the High Court they will go straight against the RTB (i.e. the government), not you directly. The RTB has some of the best barristers available in Ireland to defend its cases at the High Court. The very few tenants that appealed to High Court were either test cases supported by some big tenant associations or tenants who were very skilled and in person (no barrister for them).

Well, that's heartening! I assumed it was more like five or six thousand.:)

Is this one of those situations where you can only appeal against the RTB on a point of law?

Also, I know it's probably unlikely to arise, but did you ever hear of any of these tenants succeeding in their High Court cases against the RTB?

Please accept my extreme gratitude, GG!

Correct you can only appeal a decision of the RTB Tribunal to the High Court on point of law (for all practical effects it is a judicial review).

The case that Davindub was referring to is Hennessy vs PRTB:
http://www.courts.ie/Judgments.nsf/0/03AD319C75E2F3C580257F9A002F232B

One of the solicitors references I gave you by PM was the solicitor of Hennessy in this case and I used his services.

This is the important bit of the judgement:
"required as a matter of law not merely to state, as the notice in the present case did state, that the landlord intended to sell the premises, but that it must state that he intended to sell the premises within three months of the termination of the tenancy"

The RTB sample of notice of termination for sale of dwelling now complies with this judgement:
http://www.rtb.ie/docs/default-source/notice-of-terminations-landlord-pdf/landlord-intends-to-sell-the-dwelling.pdf?sfvrsn=2

Problem with the RTB - notice of termination

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