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Short term rental - partial deposit returned

  • 19-05-2017 5:30am
    #1
    Xaracatz
    Closed Accounts Posts: 702 ✭✭✭


    Hi guys

    I know there are a lot of threads on deposits, but I'm not sure of the steps in my situation.

    Long story short, I rented a place in Dublin through rents.ie short term. Had a lease for a month, and ended up staying for 6 weeks by agreement.

    The owners (who had stayed there one of the nights after the four weeks) came back for the keys on the last day. All grand, until one of them noticed dust on a shelf thing (dust - I'm not kidding). She went a bit loco, and said she had to get a cleaner in, as the next rental people were arriving the next day. This is odd, as I was told that this apartment was leased out while they were on holidays, and only available until the date I was moving out, as the owners would be moving back in.

    Anyhow - from the deposit of €1,000, I received €600 back. All by bank transfer (I sent the deposit to their solicitor, and received the partial deposit back from the owners).

    I've messaged them asking the reason for the €400 deduction, and for a breakdown of costs, but they haven't replied. They won't answer my calls either. and I've let the solicitor know, but she seems to have been acting as a friend to them and will not get involved any further.

    So - sorry this was a bit longer than planned, but, could anybody advise on what are my next steps? I've had a look, and short term rentals should be still registered with the RTB from what I can see. I don't want to let this go, as I am a bit fecked off with the situation, and from the way it played out, it seemed like this person was looking for a reason to withhold some of the deposit.

    Thanks!


Comments

  • #2
    davindub
    Registered Users, Registered Users 2 Posts: 1,447 ✭✭✭davindub


    Yep comes under rtb.


  • #3
    Xaracatz
    Closed Accounts Posts: 702 ✭✭✭Xaracatz


    davindub wrote: »
    Yep comes under rtb.

    Cheers. So I'll just ring them tomorrow.

    If anybody has any suggestions on what they might do, it would be great. Would rather just get onto the owners and say that I'm getting in touch with the RTB if they can't send me the info I'm looking for in the hopes that they may respond to me then.

    I'm out of the country now and would rather just get this sorted quickly!


  • #4
    wordofwarning
    Closed Accounts Posts: 697 ✭✭✭wordofwarning


    davindub wrote: »
    Yep comes under rtb.

    I disagree. IMO it is a case for the small claims court.

    Nothing indicates that this was a tenancy falling under the RTB. OP never had exclusive possession, which is the most basic thing a tenancy needs to be, for it to be in fact a bona fide tenancy. This to be seems like a short term let, like taking a holiday home for a few weeks in the West.

    Why do you think it falls under the RTB?


  • #5
    davindub
    Registered Users, Registered Users 2 Posts: 1,447 ✭✭✭davindub


    wordofwarning wrote: »
    I disagree. IMO it is a case for the small claims court.

    Nothing indicates that this was a tenancy falling under the RTB. OP never had exclusive possession, which is the most basic thing a tenancy needs to be, for it to be in fact a bona fide tenancy. This to be seems like a short term let, like taking a holiday home for a few weeks in the West.

    Why do you think it falls under the RTB?

    Simple enough,

    1. It involved a lease.
    2. The lease subject was residential
    3. It fails the exceptions to the application of the act:
    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—

    (c) a dwelling let by or to—

    (f) a dwelling let to a person whose entitlement to occupation is for the purpose of a holiday only,

    (g) a dwelling within which the landlord also resides,

    (h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling,

    4. Substance over form, the LL is clearly making an attempt to avoid the RTB legislation, and you see a lot of them on Daft, minimum term 1 month, 3 months, etc. Contracts and Deposits required, the deduction from the deposit for cleaning, this is not similar say to Airbnb, B&B, Hotel where you book a room and stay. Short term holiday lettings are clearly exempt, other short term are not mentioned. The LL is not carrying on a trade as a hotel or B&B is either.

    5. Exclusive possession was mentioned in a case, it was never a widely applicable test, it was used to determine whether one property came under the RTB act, I believe it was actually a B&B type arrangement. It is often stated here that just by staying a night or retaining a room in a property avoids RTB, this is careless interpretation of the meaning of the act.

    6. The LL spent 1 night there out of 42, but responsibility for the cleaning and upkeep was placed on the tenant. So they clearly don't reside there. The LL did say the apartment was only available whilst the LL was on Holidays, they appear to have not been away and have rented the apartment again, logically they have another residence.

    Now granted you have a point, and I don't know for certain if the OP will ring the RTB and be told otherwise, but the intention of the act was to apply to all residential lettings unless exempted by the above section. It would actually be the reverse that needs to proven, that the RTB act does not apply to the letting. You might have more problems getting the small claims procedure to take the case.

    OP you will need to explain the above carefully, I wouldn't ring them, they don't provide advice over the phone really, they will help you, but its not the same as taking a case and having the act applied by an adjudicator. Threshold might be a better option if you want to discuss, email explaining the above.


  • #6
    wordofwarning
    Closed Accounts Posts: 697 ✭✭✭wordofwarning


    davindub wrote: »
    Simple enough,

    1. It involved a lease.
    2. The lease subject was residential

    A license or a lease? Regardless of whether it had a lease, it does not make it a bona fide letting if it was not legal in the first place.

    What is the difference between a residential and a holiday let? The name?
    davindub wrote: »
    3. It fails the exceptions to the application of the act:

    What is the difference between holiday and short term lets? Does a business trip not qualify as an exception as the purpose is not a holiday?
    davindub wrote: »
    4. Substance over form, the LL is clearly making an attempt to avoid the RTB legislation, and you see a lot of them on Daft, minimum term 1 month, 3 months, etc. Contracts and Deposits required, the deduction from the deposit for cleaning, this is not similar say to Airbnb, B&B, Hotel where you book a room and stay. Short term holiday lettings are clearly exempt, other short term are not mentioned. The LL is not carrying on a trade as a hotel or B&B is either.

    People avoid taxes. It is entirely legally and accepted under the law. Tens of thousands of student beds in the state avoid tenancy law, there is nothing illegal about that

    There is a contract and a deposit required on Airbnb too. I am struggling to see the difference between a 3 month let on Airbnb with zero cleaning and a month booked off short term lets on daft with a weekly cleaning. You are saying the Airbnb letting is a holiday letting and latter is a letting that requires RTB registration?

    What is the difference between a short term let and a holiday let? It appears to be nothing more than the name
    davindub wrote: »

    5. Exclusive possession was mentioned in a case, it was never a widely applicable test, it was used to determine whether one property came under the RTB act, I believe it was actually a B&B type arrangement. It is often stated here that just by staying a night or retaining a room in a property avoids RTB, this is careless interpretation of the meaning of the act.

    It has been in several cases in fact. The RTB wants to see if a letting is in fact a tenancy arrangement or a license agreement. If what a 'tenant' considered a tenancy turns out to be a license arrangement, the RTB will refuse to listen to the case. If you don't have exclusive possession, you don't have a legal tenancy. You have a license agreement

    davindub wrote: »
    6. The LL spent 1 night there out of 42, but responsibility for the cleaning and upkeep was placed on the tenant. So they clearly don't reside there. The LL did say the apartment was only available whilst the LL was on Holidays, they appear to have not been away and have rented the apartment again, logically they have another residence.

    The landlords clearly does not live there? He may work for an American IT company and is normally resided in that property. He lets it when he is on business trips. It is not uncommon for someone working for a MNC not to be on non-stop business trips. You can't just assume he does not live there. Like why would he spend the night with a stranger ?

    I honestly can't understand from your post what makes a short term let immediately covered by the RTA and what makes a letting, a holiday let. I get from your post calling it a holiday let, makes it is a holiday let. Call it a short term let and it is covered by the RTB under the RTA. You make little distinction between a holiday let and a short term let other than their name


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  • #7
    davindub
    Registered Users, Registered Users 2 Posts: 1,447 ✭✭✭davindub


    hmm....

    There has only been about 5/6 cases in the HC regarding the RTB act, exclusive possession was mentioned in one case where it was actually difficult to establish the nature of the accommodation. I have never seen it as a test at tribunal stage, the legislation has its own means to establish if the act applies (all residential lettings, with the exception of...) but then I wouldn't read all cases, but you can have a look here if you want https://www.rtb.ie/dispute-resolution/prtb-dispute-outcomes.

    Exclusive possession is actually not contained the RTB act, its source is common law in relation to having use of land but not exclusive use = no legal interest in the land = you only have a personal representation allowing you to use the land = licensee. With the RTB act, you actually just look at the legislation, assume it applies if the nature is residential and then see if it is exempt.

    I actually directly quoted from the act in regards exemptions, it is not my narrative. "Short term" is not mentioned in the act at all. Purpose of holidays is, that has not been defined further, you could expand on the meaning to include holiday homes, but I see it as being based on the intention of the tenant rather than how the LL positions the property on the market.

    If the intention of the tenant is questioned, you can imagine it is easy enough to determine what constitutes holidays.

    Student accommodation is not excepted from the act either, there is a term preventing part 4 tenancies from arising in purpose designated student accommodation. The act also applies to bedsits, rooms let where common areas are shared (LL not residing in the building).

    There would be no distinction between using airbnb or daft to rent a property. But it might reflect on the purpose of the person seeking accommodation, airbnb booked for 2 nights might relate better to an holiday than an apartment on daft with a minimum rent of 1 month. Thats not conclusive though. In practice holiday lets may have an cleaning charge, or be included in the price, you wouldn't really expect a penalty for dust would you?, a lease would expect you to receive the apartment back in the same condition you received it in. But these are just examples of how i would distinguish between the two situations.

    If the LL did live there and travelled for business, fine, prove it, I would assume from the OP's description on the balance of probabilities, the LL does not live there. They are trying to avoid the legislation, not illegal or anything to do with taxes, but ineffective as it appears they reside somewhere else.


  • #8
    wordofwarning
    Closed Accounts Posts: 697 ✭✭✭wordofwarning


    davindub wrote: »

    There has only been about 5/6 cases in the HC regarding the RTB act, exclusive possession was mentioned in one case where it was actually difficult to establish the nature of the accommodation. I have never seen it as a test at tribunal stage, the legislation has its own means to establish if the act applies (all residential lettings, with the exception of...) but then I wouldn't read all cases, but you can have a look here if you want https://www.rtb.ie/dispute-resolution/prtb-dispute-outcomes.

    There have been several cases at the RTB where they trying to find out whether a person letting a room was a tenant or a license holder. Until recent case law, if you rent a single room from a property, you were not covered by the RTB regardless if the landlord lived there or not.
    davindub wrote: »

    I actually directly quoted from the act in regards exemptions, it is not my narrative. "Short term" is not mentioned in the act at all. Purpose of holidays is, that has not been defined further, you could expand on the meaning to include holiday homes, but I see it as being based on the intention of the tenant rather than how the LL positions the property on the market.


    If the intention of the tenant is questioned, you can imagine it is easy enough to determine what constitutes holidays.

    So if I moved from the San Francisco office to the Dublin office of my employer and I rent a property from daft.ie on a short term let for 2 weeks to find my own place. Am I in fact a tenant?

    Or if I am an American spending the Summer in the West renting a house. Does that make a holiday maker?

    IMO it is not easy to determine what makes a holiday let and a short term let. IMO I think the only difference is name
    davindub wrote: »
    There would be no distinction between using airbnb or daft to rent a property. But it might reflect on the purpose of the person seeking accommodation, airbnb booked for 2 nights might relate better to an holiday than an apartment on daft with a minimum rent of 1 month. Thats not conclusive though. In practice holiday lets may have an cleaning charge, or be included in the price, you wouldn't really expect a penalty for dust would you?, a lease would expect you to receive the apartment back in the same condition you received it in. But these are just examples of how i would distinguish between the two situations.

    So if OP told them he was on holidays here rather than a short term let it would be a different kettle of fish?

    There was a post on the consumer issues / legal discussions/travel about someone getting hit with a spoilage fee from a hotel. There is nothing stopping a holiday home billing you for leaving a house in a poor condition after a few weeks.
    davindub wrote: »
    If the LL did live there and travelled for business, fine, prove it, I would assume from the OP's description on the balance of probabilities, the LL does not live there. They are trying to avoid the legislation, not illegal or anything to do with taxes, but ineffective as it appears they reside somewhere else.

    Prove it by getting his bills sent to the house and paying rent in cash for anywhere else he lets so there is no trace?


  • #9
    davindub
    Registered Users, Registered Users 2 Posts: 1,447 ✭✭✭davindub


    wordofwarning wrote: »
    There have been several cases at the RTB where they trying to find out whether a person letting a room was a tenant or a license holder. Until recent case law, if you rent a single room from a property, you were not covered by the RTB regardless if the landlord lived there or not.

    Im sorry that could not be the case, it would be a scandal if the RTB started setting case law (your words, no case law, only interpretation), not even the HC can contradict the legislation, it has jurisdiction only on point of law. But look there will be a public record of all tribunal cases, if you know of a case, link to it.


    wordofwarning wrote: »
    So if I moved from the San Francisco office to the Dublin office of my employer and I rent a property from daft.ie on a short term let for 2 weeks to find my own place. Am I in fact a tenant?

    Yes, if you are not on holidays. Not much difference than renting somewhere immediately for 6 months. But I agree there should have been a distinction somewhere regarding short term lets, but there is not.
    wordofwarning wrote: »
    Or if I am an American spending the Summer in the West renting a house. Does that make a holiday maker?

    Yes if you are on holidays.
    wordofwarning wrote: »
    IMO it is not easy to determine what makes a holiday let and a short term let. IMO I think the only difference is name

    The RTB/ HC will have to find someway, it is in the legislation.

    wordofwarning wrote: »
    So if OP told them he was on holidays here rather than a short term let it would be a different kettle of fish?

    Yes the OP would be on holidays, hard to claim you lied about your intentions after the fact.
    wordofwarning wrote: »
    There was a post on the consumer issues / legal discussions/travel about someone getting hit with a spoilage fee from a hotel. There is nothing stopping a holiday home billing you for leaving a house in a poor condition after a few weeks.

    Spoilage and poor condition are extraordinary charges, different standard of condition for leases. But then that is my own opinion again.

    wordofwarning wrote: »
    Prove it by getting his bills sent to the house and paying rent in cash for anywhere else he lets so there is no trace?

    No, you would have to explain your absence, these silly answers under oath never work, same goes for any other lie you attempt to tell. Remember cases are decided on the balance of probabilities, so if evidence is given you weren't there and you have no evidence to explain where you were....


  • #10
    wordofwarning
    Closed Accounts Posts: 697 ✭✭✭wordofwarning


    davindub wrote: »

    Yes, if you are not on holidays. Not much difference than renting somewhere immediately for 6 months. But I agree there should have been a distinction somewhere regarding short term lets, but there is not.

    So an Americans coming here and renting for 6 months in the West is grand. They are a 'holiday maker'. But if someone rents a place off daft.ie for a week to find a new place is immediately a tenant? Someone comes here a business trip is also a tenant even on here for a few weeks?
    davindub wrote: »

    The RTB/ HC will have to find someway, it is in the legislation.

    Where? In the past, you have said certain things are covered by the law but clarify or state where
    davindub wrote: »
    Yes the OP would be on holidays, hard to claim you lied about your intentions after the fact.

    Someone comes to my Airbnb with a suitcase. How am I supposed to know that Jane Doe is on holidays or just moved here to start a new role with their company in the IFSC? I am just supposed to believe their email?


  • #11
    davindub
    Registered Users, Registered Users 2 Posts: 1,447 ✭✭✭davindub


    wordofwarning wrote: »
    Where? In the past, you have said certain things are covered by the law but clarify or state where

    Some things I am not going to reference properly, but on this occasion it is simple to reference, so I have provided a link to the relevant section of the RTB act. I believe I know the post you are talking about, where common law is involved, there are principles and legal tests and doctrines, to discuss and reference would require significant time.

    This is all you need to know on the application of the act:
    http://www.irishstatutebook.ie/eli/2004/act/27/enacted/en/print#sec3

    In fact have a read of the entire act over the next few days / weeks. It is a simple / brief enough act, so you would learn a lot from reading it.

    also if you have an interest go to
    http://www.bailii.org/cgi-bin/lucy_search_1.cgi?sort=rank&method=boolean&results=200&mask_path=ie/cases%20ie/legis%20ie/other&query=(rtb)&highlight=1

    and read the cases there. The judges comments might seem like a lot of waffle but if you read them you will see how the judge reasons about terms in the act.


    wordofwarning wrote: »
    Someone comes to my Airbnb with a suitcase. How am I supposed to know that Jane Doe is on holidays or just moved here to start a new role with their company in the IFSC? I am just supposed to believe their email?

    I wouldn't really know? The act gives no guidance on how to avoid tenancies from arising.


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