withholding rent

ganmo

If there are problems in the property are tenants within their rights to withhold a portion of the rent until the problems are sorted?

CIARAN_BOYLE

no they aren't.

neither are landlords allowed withold sorting out the problems until rent is paid.

Baby01032012

to finish your title....withholding rent...is illegal.

ganmo

so the only way to force landlords to fix things is through the prtb?

BrokenArrows

ganmo wrote: »

so the only way to force landlords to fix things is through the prtb?

yes or at least threaten to go. Usually that will light a fire under their ass.

ganmo

thanks.
mods can close if they wish

Samuel T. Cogley

If it's urgent, register a case with the RTB, withold the rent ONLY to the value of ABSOLUTELY necessary repairs and do them. This amounts to self help but if you've no heating or no cooker then ... keep the reciepts.

No you can't punatively stop paying rent though.

RTA 2004 12 (g)

(g) without prejudice to any other liability attaching in this case, reimburse the tenant in respect of all reasonable and vouched for expenses that may be incurred by the tenant in carrying out repairs to the structure or interior of the dwelling for which the landlord is responsible under paragraph (b) where the following conditions are satisfied—


(i) the landlord has refused or failed to carry out the repairs at the time the tenant requests him or her to do so, and


(ii) the postponement of the repairs to some subsequent date would have been unreasonable having regard to either—


(I) a significant risk the matters calling for repair posed to the health or safety of the tenant or other lawful occupants of the dwelling, or


(II) a significant reduction that those matters caused in the quality of the tenant's or other such occupants' living environment,

NOTE: This is NOT the same as witholding the rent, you should pay fopr the repairs yourself but if that's a non-runner I venture you'd find a sypathetic RTB.

dennyk

That clause unfortunately doesn't allow the tenant to withhold rent, it only says that the landlord must reimburse the tenant for critical repairs they had to pay out of pocket for because the landlord refused to address them within a reasonable time. Withholding rent regardless of the circumstances can still get you a 14+28 day notice and it will likely still be deemed valid. There is no situation which allows a tenant in Ireland to withhold rent legally without being subject to termination for rent arrears; the only remedy they have is to bring a dispute to the PRTB (and/or to the local housing authority if it relates to a breach of the minimum standards). It's always possible that an RTB mediator or adjudicator might side with the tenant if they did withhold for a particularly egregious violation, but it's still a huge gamble and if the tenant loses, they're out on the street with little warning.

Cheshire Cat

Unfortunately it is illegal in Ireland. It is allowed in Germany where there are detailed tables that tell you exactly how much you can withhold in which case. It helps to speed things up and gives the tenant some leverage and compensation.

Paz-CCFC

Samuel T. Cogley wrote: »

RTA 2004 12 (g)


NOTE: This is NOT the same as witholding the rent, you should pay fopr the repairs yourself but if that's a non-runner I venture you'd find a sypathetic RTB.

What about section 87 of the Landlord and Tenant (Amendment) Act 1980?

Where a landlord refuses or fails to execute repairs to a tenement which he is bound by covenant or otherwise by law to execute and has been called upon by the tenant to execute, and the tenant executes the repairs at his own expense, the tenant may set off the expenditure against any subsequent gale or gales of rent until it is recouped.

There are some sections of the 1980 Act specifically disapplied for dwellings under the Residential Tenancies Act 2004, but section 87 isn't one of them. In fact, it's specifically applied in the context of RTB determinations.

Under section 119 of the 2004 Act, the RTB may reduce any award for arrears of rent by "any set-off for expenditure on repairs the tenant would be entitled to make under section 87 of the Landlord and Tenant (Amendment) Act 1980". Does "would be entitled" refer to cases where the tenant was actually entitled to make such set-off or is it saying that the RTB (and only the RTB) may do so, akin situations where tenants may set-off under the 1980 Act (but residential tenants actually can't)? Or is that distinction unnecessary and it's simply a case that section 87 applies, if it is not repealed or disapplied?

This might be more suited to Legal Discussion than A&P.

4ensic15

Re-imbursement or the tenant enforcing the re-imbursement wouldn't amount to witholding rent. It would be an absurdity if the tenant had to pay rent to the landlord and then wait for the landlord to pay the tenant for repairs. Technically when the repairs are carried out, the landlord should pay immediately for them or re-imburse the tenant, but if the landlord has not done so then deducting the cost from the next rent due is reasonable and legal. What the tenant can't do is withold payment without doing the repairs himself.

Fol20

4ensic15 wrote: »

Re-imbursement or the tenant enforcing the re-imbursement wouldn't amount to witholding rent. It would be an absurdity if the tenant had to pay rent to the landlord and then wait for the landlord to pay the tenant for repairs. Technically when the repairs are carried out, the landlord should pay immediately for them or re-imburse the tenant, but if the landlord has not done so then deducting the cost from the next rent due is reasonable and legal. What the tenant can't do is withold payment without doing the repairs himself.

If any tenant withholds rent to do a job, they will be receiving an arrears\ eviction notice from me.

Someone brought up an interesting point. If a tenant is in rent arrears of say 3months and are refusing to leave. Can the landlord be held liable if say the shower isn’t working or whatever else can commonly occur and the ll are refusing to fix it due to a non paying tenant.

4ensic15

Fol20 wrote: »

If any tenant withholds rent to do a job, they will be receiving an arrears\ eviction notice from me.

If you haven't done a necessary job, the tenant is entitled to do it and charge you for it. Your eviction notice would be invalid and you might have to pay a penalty.

ted1

ganmo wrote: »

If there are problems in the property are tenants within their rights to withhold a portion of the rent until the problems are sorted?

No

Graces7

It gets very hard when tenants are hard pressed financially. In my previous tenancy, the "mountain stream" water system broke down and when emails to the agent went unanswered, I organised repairs. And buying water while waiting for parts put me three days behind with the rent. Paid it as soon as my pension came in. The resulting letter from the owner was abusive.

Edgware

ganmo wrote: »

If there are problems in the property are tenants within their rights to withhold a portion of the rent until the problems are sorted?

If there are problems with the tenant can the landlord breach the agreement and throw the tenant out?
No. Well it works both ways. There is a process in place to be followed. Why do people think that a rental contract has less obligations than any other contract?

Samuel T. Cogley

Edgware wrote: »

If there are problems with the tenant can the landlord breach the agreement and throw the tenant out?
No. Well it works both ways. There is a process in place to be followed. Why do people think that a rental contract has less obligations than any other contract?

Because they are tightly contolled by statute, the sailient points of which have been posted.

Samuel T. Cogley

Fol20 wrote: »

If any tenant withholds rent to do a job, they will be receiving an arrears\ eviction notice from me.

Someone brought up an interesting point. If a tenant is in rent arrears of say 3months and are refusing to leave. Can the landlord be held liable if say the shower isn’t working or whatever else can commonly occur and the ll are refusing to fix it due to a non paying tenant.

To your first point; we're not talking about some peeling paint work, we're talking a catastrophic leak or failure of the heating system.


Secondly in my view no. The legilsation does not allow for a landlord to be relieved of his/her obligations due to non-payment of rent. I defer, of course, to anyone with linked legislation.

GGTrek

Paz-CCFC wrote: »

Samuel T. Cogley wrote: »

RTA 2004 12 (g)


NOTE: This is NOT the same as witholding the rent, you should pay fopr  the repairs yourself but if that's a non-runner I venture you'd find a  sypathetic RTB.

What about section 87 of the Landlord and Tenant (Amendment) Act 1980?

Where a landlord refuses or fails to execute repairs to a tenement which  he is bound by covenant or otherwise by law to execute and has been  called upon by the tenant to execute, and the tenant executes the  repairs at his own expense, the tenant may set off the expenditure  against any subsequent gale or gales of rent until it is recouped.

There  are some sections of the 1980 Act specifically disapplied for dwellings under the Residential Tenancies Act 2004, but section 87 isn't one of  them. In fact, it's specifically applied in the context of RTB  determinations.

Under section 119 of the  2004 Act, the RTB may reduce any award for arrears of rent by "any  set-off for expenditure on repairs the tenant would be entitled to make  under section 87  of the Landlord and Tenant (Amendment) Act  1980". Does "would be entitled" refer to cases where the tenant was  actually entitled to make such set-off or is it saying that the RTB (and  only the RTB) may do so, akin situations where tenants  may set-off under the  1980 Act (but residential tenants actually can't)? Or is that distinction unnecessary and it's simply a case  that section 87 applies, if it is not repealed or disapplied?

This might be more suited to Legal Discussion than A&P.

I shall reply directly to this post since it is the most pertinent post of the whole thread in my opinion. The poster mixed up tenants obligation with the issue of the calculation of arrears of rent in an adjudication and it is a massive error that could cost the tenant his tenancy. Let's split the two:

Most important for the continuation of the tenancy is section 16(a) of the RTA:
"16.—In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall—   
(a) pay to the landlord or his or her authorised agent (or any other person where required to do so by any enactment)—
(i) the rent provided for under the tenancy concerned on the date it falls due for payment, and"

For any breach of such section irrespective of any reason alleged by the tenant the landlord can issue a 14 days warning notice for breach of tenant obligations (in this particular case payment of rent) followed by a termination notice for non payment of rent. You will notice that the RTA when detailing the sections for notices of termination for breach of tenants obligations does not have any entry where repairs could be used as an excuse to withold rent or to make the notice of termination invalid. The reason is very simple: any kind of repair excuse could be used to withold rent and it would very difficult to frame in legislation. For example this happens in the UK for Section 8 terminations (non payment of rent or other breaches) that have been emasculated by legislation not fit for purpose that allows tenants to allege without any proof that any type of repairs were needed in order to delay eviction.

Once the termination notice has been issued and disputed at the RTB, the adjudicator will verify the amount of the arrears (this is a second phase) to see if the termination notice for non payment of rent was indeed valid. In such case he/she can apply section 119(b) (in reality the whole section 119) in conjuction however with section 16(d) (tenant had to notify landlord about the necessity of repairs and will have to show proof) 16(e) (allow landlord or his people access) and especially section 16(l) (request written permission for the repairs from the landlord, which the landlord cannot unreasonably withold in case of repairing or painting or decorating).

As the poster can see there are a lot of conditions to be satisfied before a tenant is allowed to perform repairs and then withold rent for the cost of the repairs. The tenant is taking a big risk since there is a lot of subjectivity if the repair cost/necessity is disputed or any of the conditions of section 16 is not satisfied and even a single euro in rent arrears calculated because of the repairs will cause the notice of termination to be valid and the tenant ordered to vacate. The statute is very much against the tenant performing repairs and/or witholding rent (and for good reasons). The safest course of action for emergency repairs that for any reason were not performed by the landlord, would be to notify landlord in written form that the tenant will perform the emergency repairs giving a deadline to the landlord to agree, continue to pay the rent and then request reimbursement from the landlord and if there is no agreement about the necessity or cost of the repairs go to RTB mediation or adjudication. Witholding rent is the riskiest course of action for the tenant whatever the reason, even if the landlord is found in breach of section 12, the tenant if found in breach of section 16 will be ordered to vacate and there are tons of these cases in the RTB case law.

Paz-CCFC

Samuel T. Cogley wrote: »

To your first point; we're not talking about some peeling paint work, we're talking a catastrophic leak or failure of the heating system.


Secondly in my view no. The legilsation does not allow for a landlord to be relieved of his/her obligations due to non-payment of rent. I defer, of course, to anyone with linked legislation.

Section 16(b) of the 2004 Act? It's a tenant's obligation to ensure no act or omission of his causes the landlord to fail to comply with his obligations, in particular with section 18 of the Housing (Miscellaneous Provisions) Act 1992, the provision that gives rise to the minimum standards regulations. If a tenant consistently fails to pay rent, I think it'd be fair for the landlord to say that he can't afford to pay for the repairs and comply with his obligations.

As you alluded to above re a tenant's ability to set-off/withhold costs, it'd likely depend on the facts. Being a day late with rent probably isn't enough for a landlord to claim he's being prevented from complying with his obligations, but going a number of month's without payment might be.

4ensic15

Paz-CCFC wrote: »

Section 16(b) of the 2004 Act? It's a tenant's obligation to ensure no act or omission of his causes the landlord to fail to comply with his obligations, in particular with section 18 of the Housing (Miscellaneous Provisions) Act 1992, the provision that gives rise to the minimum standards regulations. If a tenant consistently fails to pay rent, I think it'd be fair for the landlord to say that he can't afford to pay for the repairs and comply with his obligations.

As you alluded to above re a tenant's ability to set-off/withhold costs, it'd likely depend on the facts. Being a day late with rent probably isn't enough for a landlord to claim he's being prevented from complying with his obligations, but going a number of month's without payment might be.

If a tenant is failing to pay his rent the landlord should terminate but it is no defence for the landlord to say he cant't afford repairs. For a tenant to withold rent the situation would have to be chronic. The tenant can always bring a claim to the RTB if the landlord is failing to maintain the dwelling at the appropriate standard. The tenant must have written to the landlord complaining about the state of the dwelling. Unless the repair was essential to the habitability of the dwelling the tenant would be foolish undertake it herself. The RTb is pro tenant and a landlord who tried to enforce a notice of termination in a situation where there was a serious problem with repairs would not get a great hearing. Arguing about the cost or outlay would not help if the landlord had left an important repair untouched for weeks.

ganmo

Edgware wrote: »

If there are problems with the tenant can the landlord breach the agreement and throw the tenant out?
No. Well it works both ways. There is a process in place to be followed. Why do people think that a rental contract has less obligations than any other contract?

its a fairly common business practice to withhold/delay payment if the other party was acting up one way or another.

Ray Palmer

ganmo wrote: »

its a fairly common business practice to withhold/delay payment if the other party was acting up one way or another.

It doesn't matter as there are specific laws dealing with residential rentals that make it very clear. A tenant cannot withold rent and there are no ifs, ands, buts.

ganmo

Ray Palmer wrote: »

It doesn't matter as there are specific laws dealing with residential rentals that make it very clear. A tenant cannot withold rent and there are no ifs, ands, buts.

which is why I asked. I got the answer in the first few posts