Part IV tenant, "relative wishes to move in"

Wheres Me Jumper?

Apologies if this query has already been covered

well here goes

My question/query is simple (famous last words i hear you sneer).

Can a LL move a Part IV tenant out of his/her property on the grounds that a "relative/family" member wishes to move in, if that person is his/her common-law husband/wife ie a co-habiting partner?
does that constitute a "proper" relationship under the Act, or could a tenant challenge such a Notice of Termination?

circular flexing

Your post is not very clear (to me anyway).

The tenant wishes to move their partner in or does the landlord want to move their partner in and in effect evict the tenant?

Graham

Wheres Me Jumper? wrote: »

Apologies if this query has already been covered

well here goes

My question/query is simple (famous last words i hear you sneer).

Can a LL move a Part IV tenant out of his/her property on the grounds that a "relative/family" member wishes to move in, if that person is his/her common-law husband/wife ie a co-habiting partner?
does that constitute a "proper" relationship under the Act, or could a tenant challenge such a Notice of Termination?

This is what I found last time I looked at the definition of 'family member' for the purposes of the residential tenancies act:

(4) In paragraph 4 of the Table the reference to a member of the landlord's family is a reference to any spouse, child, stepchild, foster child, grandchild, parent, grandparent, step parent, parent-in-law, brother, sister, nephew or niece of the landlord or a person adopted by the landlord under the Adoption Acts 1952 to 1998.

Source: http://www.irishstatutebook.ie/eli/2004/act/27/enacted/en/print#sec35

The_Conductor

Wheres Me Jumper? wrote: »

Apologies if this query has already been covered

well here goes

My question/query is simple (famous last words i hear you sneer).

Can a LL move a Part IV tenant out of his/her property on the grounds that a "relative/family" member wishes to move in, if that person is his/her common-law husband/wife ie a co-habiting partner?
does that constitute a "proper" relationship under the Act, or could a tenant challenge such a Notice of Termination?

Yes- it is a valid ground for terminating a Part IV tenancy under the Act.

dennyk

The_Conductor wrote: »

Yes- it is a valid ground for terminating a Part IV tenancy under the Act.

That might actually be a good question, though, as I don't believe an unmarried cohabiting partner would technically be considered a "spouse" under Irish law, would they? Unless the partner in question was also a joint/in-common owner of the property (in which case they'd probably fall under the "owner" clause anyway), I'm not sure it would actually qualify them as a family member as defined by the RTA.

Legal status of a cohabiting partner aside, it would also be something of a red flag if a landlord claims they needs the property for their spouse to move into. The tenant probably couldn't successfully challenge it in the case of an actual spouse, of course, but I certainly wouldn't be surprised to see that property go up on Daft within the month at half again the old rent in that case; the former tenant ought to keep an eye out and at least make a complaint to the PRTB if that does happen so the landlord doesn't get away with such shenanigans.

FishOnABike

Apart from the question of whether a partner / cohabitant could be considered a spouse it relative, I think it would have to be asked why the partner / cohabitant is not living with the LL in their house. Surely if they are no longer living with the LL they are no longer a partner or cohabitant but merely a friend or acquaintance.

I might be being very cynical, but this notice has more red flags than a victory day parade in cold war era USSR.

Baralis1

Sounds like a very obvious greedy landlord ploy to radically increase his rental return

frag420

Baralis1 wrote: »

Sounds like a very obvious greedy landlord ploy to radically increase his rental return

That’s the conclusion I immediately jumped to too with I heard landlord, relative and part 4 in one sentence...ha ha

Baralis1

Ask him if there is any chance that you could stay if you paid more rent and ask how much. Record the conversation covertly on your phone. Don't agree to the rental increase there and then.

Paz-CCFC

There is no such thing in Irish law as a "common law husband/wife". If they are legally married, they are spouses. If they are not married, then they are not spouses. Unless the RTB or the courts have interpreted "spouse" in this context to include cohabitants - which I would be very surprised with - then a landlord may not terminate a tenancy for this reason.

The section was extended to include civil partners by the Civil Partnership and Certain Rights and Obligations of Cohabitants act 2010. Since this same act deals with cohabitation rights and it didn't include cohabitants as a family member for the purposes of terminating a tenancy, we can safely say that the Oireachtas never intended to include non-married or non-civil partners.

Also, under the legislation, a landlord must "require" the dwelling for the occupation of his or her family member. A family member may not merely "wish" to move in, the landlord must require the dwelling and sign a statutory declaration to that effect. If the family member leaves the dwelling within six months of the tenant moving out, then the landlord must offer it back to the tenant, if the tenant has given contact details.

listermint

My thoughts exactly. I think some of the LL above are interpreting the wording incorrectly

This LL may aswell be saying 'i want to move a friend in' which doesn't fly under the spouse definition

TheAnalyst_

No. How would it be a common law spouse if they live in separate houses?

Wheres Me Jumper?

Thanks for your answers guys!
Many of you reflect my concerns exactly.

TheAnalyst_ wrote: »

No. How would it be a common law spouse if they live in separate houses?

LL says her partner/husband/co-habitee needs the property for 6 months as a base while in Dublin as he will be there for business reasons. They actually live in Wexford.

Paz-CCFC wrote: »

There is no such thing in Irish law as a "common law husband/wife". If they are legally married, they are spouses. If they are not married, then they are not spouses. Unless the RTB or the courts have interpreted "spouse" in this context to include cohabitants - which I would be very surprised with - then a landlord may not terminate a tenancy for this reason.

The section was extended to include civil partners by the Civil Partnership and Certain Rights and Obligations of Cohabitants act 2010. Since this same act deals with cohabitation rights and it didn't include cohabitants as a family member for the purposes of terminating a tenancy, we can safely say that the Oireachtas never intended to include non-married or non-civil partners.

Excellent point. LL's partner is also the father of their 3 young children. Does that not "solidify" their relationship? They haven't just met and lived together for a few months.

FishOnABike wrote: »

Apart from the question of whether a partner / cohabitant could be considered a spouse it relative, I think it would have to be asked why the partner / cohabitant is not living with the LL in their house. Surely if they are no longer living with the LL they are no longer a partner or cohabitant but merely a friend or acquaintance.

I might be being very cynical, but this notice has more red flags than a victory day parade in cold war era USSR.

Me too. Good point but please see above "explanation"

GGTrek

OP, after the additional information you provided, I believe you would be taking a test case. Since the landlord and her partner would definitely be considered cohabitants ("they must have stayed together a few months to have three children!? please let's avoid making jokes on such matters) see part 15 of this act: http://www.irishstatutebook.ie/eli/2010/act/24/enacted/en/html

The adjudicators are bound by the whole Irish statute book when looking at a definition at what a spouse is and bound to avoid discrimination, not just bound by the literal interpretation of the RTA taken on its own. There is also the Equal Status Act 2000 that prohibits discrimination against a person on the grounds that the person is single, married, separated, divorced or widowed. The same prohibition against discrimination under such Act might apply in favour of those who are cohabiting and living as family for such a long time.

The only point I want to make to you is that you do not have such a clear cut case as some other posters are assuming. My suggestion is to go to a Tenancy law solicitor and present your case with all the details (sometimes first consultation is free), before making assumptions. Best of luck

Paz-CCFC

Wheres Me Jumper? wrote: »

Thanks for your answers guys!
Many of you reflect my concerns exactly.


LL says her partner/husband/co-habitee needs the property for 6 months as a base while in Dublin as he will be there for business reasons. They actually live in Wexford.


Excellent point. LL's partner is also the father of their 3 young children. Does that not "solidify" their relationship? They haven't just met and lived together for a few months.


Me too. Good point but please see above "explanation"

Since the act specifies "spouse", I don't think it would matter how "solid" the relationship is. Elsewhere in the act (section 39), it makes reference to cohabitants. So, if the Oireachtas stated cohabitant as separate from spouse on this section, why would it not do the same regarding section 34? As it didn't, then in my opinion, it shows that the Oireachtas did not intend section 34 to apply to cohabitants of the landlord.

If "spouse" could be interpreted so as to include non-married couples, then it would have a massive effect on reams of legislation and probably be unconstitutional, due to the special position of the family based on marriage. And it would've been a huge waste of time bringing in half of the 2010 Act, if the courts could have just interpreted spouse as including cohabiting couples.

Anyway, this is hypothetical discussion on my part. If you're looking for actual legal advice, then you should go to a solicitor, FLAC or Threshold (the latter is often derided on this forum, but I'd put more faith in Threshold than I would on anonymous users of an internet forum). For discussion of interpretation and definition of terms in legislation, you could also try posting in Legal Discussion.

Lumen

If a person has children by ten different partners, can any of those ten be moved in?

If that was the intent of the law, the law would specify "mother of child" and "father of child" in similar way to that used in the laws about who you're not allowed to marry (for which there is a recent thread in Legal Discussion).

The_Conductor

OP- good luck with it.
Following your clarification- and this is entirely as a lay person- I don't see how you could try and argue that the 'spouse' is anything other than as intended in the RTA. Fight it by all means- however, as alluded to above, you may very well simply be clarifying a point of law- and your challenge could very well serve to define the term spouse (at least in the context of the RTA- if not the constitution itself).

I think that regardless of what happens- you're fighting a battle you can't win- you can however take a few hostages with you en route- if you so choose to do so.

I also think that once you explain the situation to a solicitor familiar with tenancy law- he/she would be very silly not to engage the services of a constitutional barrister for assistance (there are more than a few hanging out in the Law Libraries- however, their services don't come cheap). You might win the battle- you might loose the battle- one thing for sure- the only people who'll make money on it are the lawyers.........

Samuel T. Cogley

Lumen wrote: »

If a person has children by ten different partners, can any of those ten be moved in?

If that was the intent of the law, the law would specify "mother of child" and "father of child" in similar way to that used in the laws about who you're not allowed to marry (for which there is a recent thread in Legal Discussion).

Bear in mind that while the partners may, or may not, be able to move in, the children certainly can. I see nothing in the act stating the children must be the primary tenant.

Wheres Me Jumper?

The_Conductor wrote: »

OP- good luck with it.
Following your clarification- and this is entirely as a lay person- I don't see how you could try and argue that the 'spouse' is anything other than as intended in the RTA. Fight it by all means- however, as alluded to above, you may very well simply be clarifying a point of law- and your challenge could very well serve to define the term spouse (at least in the context of the RTA- if not the constitution itself).

I think that regardless of what happens- you're fighting a battle you can't win- you can however take a few hostages with you en route- if you so choose to do so.

I also think that once you explain the situation to a solicitor familiar with tenancy law- he/she would be very silly not to engage the services of a constitutional barrister for assistance (there are more than a few hanging out in the Law Libraries- however, their services don't come cheap). You might win the battle- you might loose the battle- one thing for sure- the only people who'll make money on it are the lawyers.........

in order to clarify this issue for everybody, tenants, LLs etc.
maybe threshold or even the rtb might want to pursue this case on my behalf?:D


like most tenants i suspect, i would not have the resources to be employing Legal eagles.

this needs clarification as otherwise any LL can ask a tenant to quit on the basis that he needs to move his/her "partner" in. and as other posters have alluded to, that so-called "partner" could well be a friend, a colleague, or even another tenant who for whatever reason, is prepared to go along with the charade.
and to be fair to the many decent LLs out there, of which my current LL is one, they also need to know were they stand so as not to fall foul of the law.

Samuel T. Cogley

Wheres Me Jumper? wrote: »

in order to clarify this issue for everybody, tenants, LLs etc.
maybe threshold or even the rtb might want to pursue this case on my behalf?:D


like most tenants i suspect, i would not have the resources to be employing Legal eagles.

this needs clarification as otherwise any LL can ask a tenant to quit on the basis that he needs to move his/her "partner" in. and as other posters have alluded to, that so-called "partner" could well be a friend, a colleague, or even another tenant who for whatever reason, is prepared to go along with the charade.
and to be fair to the many decent LLs out there, of which my current LL is one, they also need to know were they stand so as not to fall foul of the law.

One way this would get an airing at the RTB at least is an over-holding tenant. As it stands the tenant would be perfectly within their rights to stay put.

Can the RTB refer cases to the superior courts?

FishOnABike

The clarification does make it that bit trickier OK and as others have pointed out, taking a test caae on the legal definition of spouse would be prohibitively expensive.

I'm a natural cynic but it does seem very convenient that the spouse needs to move in for just long enough to relieve the LL of their obligation to give you first refusal on the property when it is put back on the rental market.

How long have you been living there, how long a notice period do you have or are there any other potential issues with the notice on which it might be challenged ?

Irrespective of whether the LL is trying to pull a fast one of not you need to consider what is in your own best interests. If you can find somewhere else within your notice period it might be best to just suck it up and walk away with a good reference. If you can't find somewhere else then you will have to consider challenging the notice through the RTB dispute process.

If going down the RTB route I'd get proper advice on whether it is best for you to proactively open a dispute based on the validity of the notice or to over hold and have the LL open a dispute against you. AFAIK you cannot be required to move out while the dispute is open.

Validity of the notice might come down to how genuine the RTB viewed the LL's partner's needs, e.g. evidence of the need, how many days of the six months did they need to be in Dublin, is it 9 to 5 every working day or a few business meetings here and there, do they need to stay in Dublen every night, it a genuine need or just convenient, are there reasonable alternatives e.g. them them renting somewhere else or b+b a few nights each week given the short term nature of their 'need', the cost of that to them vs the rental income lost if you move out, etc...

I'd also look for advice on the implications on whether it was you or the LL who open a dispute with the RTB and if the dispute process found against you if the LL could seek damages against you (either at the RTB or in a separate civil case) if the partner incurred any extra costs due to not having the use of the property when they needed to be in Dublin.

Mercy Law Resource Centre might also be a place worth checking for advice.

davindub

Paz-CCFC wrote: »

There is no such thing in Irish law as a "common law husband/wife". If they are legally married, they are spouses. If they are not married, then they are not spouses. Unless the RTB or the courts have interpreted "spouse" in this context to include cohabitants - which I would be very surprised with - then a landlord may not terminate a tenancy for this reason.

The section was extended to include civil partners by the Civil Partnership and Certain Rights and Obligations of Cohabitants act 2010. Since this same act deals with cohabitation rights and it didn't include cohabitants as a family member for the purposes of terminating a tenancy, we can safely say that the Oireachtas never intended to include non-married or non-civil partners.

Also, under the legislation, a landlord must "require" the dwelling for the occupation of his or her family member. A family member may not merely "wish" to move in, the landlord must require the dwelling and sign a statutory declaration to that effect. If the family member leaves the dwelling within six months of the tenant moving out, then the landlord must offer it back to the tenant, if the tenant has given contact details.

Section 35 (supplemental to s.34) was actually modified by the Cohabitants Act 2010.

updated s.35,4
In paragraph 4 of the Table the reference to a member of the landlord’s family is a reference to any spouse, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, child, stepchild, foster child, grandchild, parent, grandparent, step parent, parent-in-law, brother, sister, nephew or niece of the landlord or a person adopted by the landlord under the Adoption Acts 1952 to 1998

OP unfortunately, in regards the definition of spouse, you will have to consider if they meet the criteria of civil partner as well.

It would be unwise to take a test case or spend money on legal advice if the person moving in satisfies the criteria of civil partner.

Wheres Me Jumper?

davindub wrote: »

Section 35 (supplemental to s.34) was actually modified by the Cohabitants Act 2010.

updated s.35,4
In paragraph 4 of the Table the reference to a member of the landlord’s family is a reference to any spouse, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, child, stepchild, foster child, grandchild, parent, grandparent, step parent, parent-in-law, brother, sister, nephew or niece of the landlord or a person adopted by the landlord under the Adoption Acts 1952 to 1998

OP unfortunately, in regards the definition of spouse, you will have to consider if they meet the criteria of civil partner as well.

It would be unwise to take a test case or spend money on legal advice if the person moving in satisfies the criteria of civil partner.

thanks for that, but my understanding is they are NOT civil partners. i know this because a family friend of ours knows the LL particularly well.

(btw can hetrosexual couples even become civil partners? i might be wrong but i thought not.)

Klinkhammer

Wheres Me Jumper? wrote: »

thanks for that, but my understanding is they are NOT civil partners. i know this because a family friend of ours knows the LL particularly well.

(btw can hetrosexual couples even become civil partners? i might be wrong but i thought not.)

There is no civil partnership anymore.

I don't think in the eyes of the law he can be perceived as a relative. My wife and I went through a 6 month battle with the Irish embassy abroad to acknowledge our 15 year relationship as common law. We failed and had to get married. We were pretty much told marriage is marriage and anything else is not.

davindub

Wheres Me Jumper? wrote: »

thanks for that, but my understanding is they are NOT civil partners. i know this because a family friend of ours knows the LL particularly well.

(btw can hetrosexual couples even become civil partners? i might be wrong but i thought not.)

No it was exclusively for same sex, i should have read from the start!....(the status is still valid btw for anyone already registered).

Wheres Me Jumper?

davindub wrote: »

No it was exclusively for same sex, i should have read from the start!....(the status is still valid btw for anyone already registered).

surely that's discrimination against hetrosexual couples?
that Act as more holes in it than me grannies' bloomers.:eek:
talk about making it up as you go along ......:rolleyes:

davindub

Wheres Me Jumper? wrote: »

surely that's discrimination against hetrosexual couples?
that Act as more holes in it than me grannies' bloomers.:eek:
talk about making it up as you go along ......:rolleyes:

It was replaced by the marriage act anyway, so level playing field now

The rationale was probably that hetrosexual couples can get married whereas at the time, that option was not there for same sex. But that doesn't suit everyone either.

Tigger

If she’s moving in then he can say he’s moving in
Is there any reason that he’d want you out?