Valid Eviction Notice?

JayR85

Hi,

Hoping some one can assist with this.

I've been renting a property over 4 years (Model tenant, rent always paid, inspections always immaculate etc.,) and the property was put up for sale recently, and I was told we would be served an eviction notice once the property is sale agreed and be given 4 months notice, I was fine with that.

A few days ago I rang the letting agency looking for an update on the sale, the receptionist told me that it is sale agreed, I explained I haven't heard anything regarding this and will there be an eviction notice sent out? She said she will get one out in the post that day.

I ring again today looking to confirm the eviction date as still no letter received, I this time speak with the letting manager who tells me an eviction letter was sent 2 months ago!

Now I definitely never received this letter! and told the manager this too.

Where do I stand with this? Still no eviction letter received (They claim it was sent and I'm to move out in 2 months) I am happy to move out but expect my 16 weeks notice. Is the eviction notice valid, personally I think they forgot to issue it and are now scrambling hoping that I will just move out early.)

Thanks

The_Conductor

Unless they sent it by some verifiable method- which could be as simple as photographing themselves posting in your letterbox- it is open to dispute- and it does sound from what you've said, like someone forgot to issue the notice, and they are simply scrambling to cover their asses.

Normal practice is to issue notice of termination *before* the property is put on the market- so they have a chance to repaint and tidy it up before they show it off to prospective buyers.

I'd inform them that you have not been served with notice of termination of tenancy, yet, and when they do serve you with notice- that you expect proper notice to be served. If they refuse- lodge a case with the RTB- and everything is on hold until its (the case) is satisfied.

JayR85

The_Conductor wrote: »

Unless they sent it by some verifiable method- which could be as simple as photographing themselves posting in your letterbox- it is open to dispute- and it does sound from what you've said, like someone forgot to issue the notice, and they are simply scrambling to cover their asses.

Normal practice is to issue notice of termination *before* the property is put on the market- so they have a chance to repaint and tidy it up before they show it off to prospective buyers.

I'd inform them that you have not been served with notice of termination of tenancy, yet, and when they do serve you with notice- that you expect proper notice to be served. If they refuse- lodge a case with the RTB- and everything is on hold until its (the case) is satisfied.

Thanks for your help, sort of what I thought was the case. I've emailed them informing them re-iterating my expectance of a valid notice and notice period. They've been very unprofessional up to this point so hopefully they just serve notice period properly and I don't have to go down PRTB route.

Thanks again.

The_Conductor

JayR85 wrote: »

Thanks for your help, sort of what I thought was the case. I've emailed them informing them re-iterating my expectance of a valid notice and notice period. They've been very unprofessional up to this point so hopefully they just serve notice period properly and I don't have to go down PRTB route.

Thanks again.

Honestly- lodging a case with the RTB (it doesn't the 'P' in its title any longer) is a simple process.

Tell them that they follow the letter of the law- or you will hold them to your rights under the Residential Tenancies Act. If they refuse to do what they are legally obliged to do- simply ring the RTB and they will talk you through lodging a formal case (first step is normally telephone mediation- which this shower will probably make a haemes of anyway).

GGTrek

A challenge based on service of the notice is always a very difficult challenge, if the landlord presents a witness at the hearing that says that the notice has been served or a photo with the notice being served the OP will loose the challenge and in addition the RTB adjudicator will set a date for the OP to vacate (probably on the same date the original notice was set, given the fact that there are still two months before the expiry of the notice). I would suggest the OP to investigate the matter further and ask to the agent for any proof of delivery of the notice and a copy of the notice, if they have it the OP would be well advised not to challenge at the RTB for the service of the notice (lots of different better reasons for example the content of the notice), especially a notice to sell where a solicitor witnessed the statutory declaration that comes with the notice.
The relevant section is section 6 of the RTA (which again I suggest to read in detail especially the underlined part so that bad surprised are avoided, sorry for the bad formatting due to copy and paste):

6.—(1) A notice required or authorised to be served or given by or under this Act shall, subject to subsection (2), be addressed to the person concerned by name and may be served on or given to the person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;
(d) where the notice relates to a dwelling and it appears that no person is in actual occupation of the dwelling, by affixing it in a conspicuous position on the outside of the dwelling or the property containing the dwelling.
(2) Where the notice concerned is to be served on or given to a person who is the owner, landlord, tenant or occupier of a dwelling and the name of the person cannot be ascertained by reasonable inquiry it may be addressed to the person by using the words the owner, the landlord, the tenant or the occupier, as the case may require.
(3) For the purposes of this section, a company shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.
(4) A person shall not, at any time during the period of 3 months after a notice is affixed under subsection (1)(d) remove, damage or deface the notice without lawful authority.
(5) A person who contravenes subsection (4) is guilty of an offence.
(6) Where, in proceedings under Part 6, it is shown that a notice was served or given in accordance with the provisions of this section and on the date that it is alleged it was served or given, the onus shall be on the recipient to establish to the Board, the adjudicator or Tribunal's satisfaction that the notice was not received in sufficient time to enable compliance with the relevant time limit specified by or under this Act.

JayR85

@GGTrek thanks for your informative reply, but as I simply haven't received any notice yet, I don't believe it's possible they can have any proof that they even delivered notice.

If by chance they did post a notice via regular post, and the postal service lost that letter, I think the onus is on them to re-issue a new valid notice. Again I have no problem moving out but expect my legal notice period.

As it stands today, I still have not received any official notice letter and as the property is for sale, should the notice be accompanied by a solicitors declaration?

The_Conductor

It doesn't have to be a solicitor's declaration- Threshold will say it does- nope, it doesn't.
You need to hammer home to them that you have not been served with notice to terminate the tenancy- period.
Its not a dispute (at this point) over the legal notice- its that you haven't received notice, full stop.

Get them to clarify the manner/method/means they are suggesting they served the notice- as if you haven't received it- your ongoing tenancy in the unit is in question.

GGTrek

The_Conductor wrote: »

Get them to clarify the manner/method/means they are suggesting they served the notice- as if you haven't received it- your ongoing tenancy in the unit is in question.

This is exactly what the OP should be doing as the top priority, without thinking of any challenge. Maybe they do not have any proof and they really screwed up the service (it would not surprise me, my experience with letting agents in Ireland has been very negative and I stopped using them). The OP has also the right to see a copy of the termination notice.
Having said all this, in a notice of termination due to intention to sell a statutory declaration is now necessary and for a statutory declaration to be valid it has to be dated and witnessed by a commissioner for oaths (solicitor usally or a peace commissioner or a notary public). Now if the copy/original they show him has the signature of the commissioner for oaths with the date of more than 2 months ago, the OP will find it very difficult to challenge the service due to Section 6(6) I quoted in my post above that reverses the burden of the proof, since the letting agent can easily state that he/she left it at the address (section 6(1)(b) satisfied) and has a witness that will confirm it and a solicitor witness proving that the notice was ready at least 2 months ago. In such case challenging the service would be very detrimental to the OP case in many ways.

4ensic15

I have been involved in challenges on service. Any professional will get proof of posting from the post office. If it is claimed there was hand delivery, it will come down to credibility. With the tenant bias in the RTB, the agent is likely to be in trouble unless they tell a very good story.

GGTrek

4ensic15 wrote: »

I have been involved in challenges on service. Any professional will get proof of posting from the post office. If it is claimed there was hand delivery, it will come down to credibility. With the tenant bias in the RTB, the agent is likely to be in trouble unless they tell a very good story.

I disagree on your opinion in this specific case, since statutory declaration will be signed and dated by solicitor which will carry much more credibility than any tenant, in addition by simply presenting a witness together with a photo of the notice at the premises the landlord will reduce any further "credibility" issue. I have never found a Tribunal report where tenants managed to successfully challenge the service of a notice (even though many tried) mostly due to Section 6(6). In my limited experience of 6 RTB adjudications, when you deliver in person and tenant refuses to sign receipt is a clear sign that the tenant is in bad faith, so witness signs and notice is delivered, in addition another notice signed by witness is glued to the entrance door of the dwelling and photo is taken. One of the tenants tried to be smart and say he did not see any witness (I alway take the witness to hearing) the adjudicator dismissed his bu..it straight away. So with respect to service of notices the legislation is quite favourable to the landlord and I did not see any bias from the RTB adjudicators.