Fixed Term Lease

BrianHartigan

I rented an apartment in August with a one-year fixed term lease. It was a rough time for me personally, and I didn't pay enough attention to the lease at the time, but re-reading it now, it has a very liberal break clause for the landlord:

The landlord can terminate the tenancy without specifying grounds during the first 6 months, but once a tenancy has lasted 6 months, the landlord will be able to terminate that tenancy during the following 3½ years only if any of the following apply;

The tenant does not comply with the obligations of the tenancy
· The dwelling is no longer suited to the occupants accommodation needs (e.g. overcrowded)
· The landlord intends to sell the dwelling in the next 3 months
· The landlord requires the dwelling for own or family member occupation
· The landlord intends to refurbish the dwelling
· The landlord intends to change the business use of the dwelling.

Duration of Tenancy Notice by Landlord

Less than 6 months 28 days
6 or more months but less than 1 year 35 days
1 year or more but less than 2 years 42 days
2 years or more but less than 3 years 56 days
3 years or more but less than 4 years 84 days
4 years or more but less than 5 years 112 days
5 years or more but less than 6 years 140 days
6 years or more but less than 7 years 168 days
7 years or more but less than 8 years 196 days
8 or more years 224 days

This seems to be exactly the terms for a Part 4 tenancy so have I signed a fixed term lease that's only really a fixed term for me? I know I should have paid more attention to this before I signed and I don't think the landlord is planning to kick me out, but it looks like they could with just 28 days notice?

Pkiernan

How on earth is that a liberal break clause for a landlord?

That is the Residential Tenancies Act.

Baby01032012

It’s a Part IV where is fixed term mentioned?

Fixed term doesn’t really add much. Once there 6 months you have right to continue up to 6 years with only very limited reasons under which landlord can terminate. Which are about to become even more strict.

Graham

Pkiernan wrote: »

How on earth is that a liberal break clause for a landlord?

That is the Residential Tenancies Act.

It's not unusual for a lease to confer additional rights over and above those acquired under a part 4.

Pkiernan

Graham wrote: »

It's not unusual for a lease to confer additional rights over and above those acquired under a part 4.

There is nothing liberal about the break clauses listed above whatsoever.

Graham

Pkiernan wrote: »

There is nothing liberal about the break clauses listed above whatsoever.

They are quite liberal when compared to a fixed term lease that has no such break clauses.

Pkiernan

Graham wrote: »

They are quite liberal when compared to a fixed term lease that has no such break clauses.

Please show me an example of such a lease.

Your anti landlord bias is showing again my friend!

Graham

Pkiernan wrote: »

Please show me an example of such a lease.

Up until quite recently residential leases with break clauses were the exception rather than the norm. Over the last few years, break clauses such as the above have become increasingly common (if not the current norm).

Anecdotally there are plenty of previous thread discussing both break clauses & the lack of break clauses from both a landlord and tenants perspective.

If you're able to read some of anti-landlord bias into that, well fair play to you.

BrianHartigan

Pkiernan wrote: »

How on earth is that a liberal break clause for a landlord?

That is the Residential Tenancies Act.

That's kind of what I'm getting at. Even though I signed a one-year fixed term lease, I only have the protections of a Part 4. However, I can't break the lease under any circumstances until August 14th 2019.

The fixed term lease that I had in my previous apartment had a break clause for the landlord at six months. This one only seems to be fixed term for me and basically a Part 4 for the landlord.

Baby01032012 wrote: »

It’s a Part IV where is fixed term mentioned?

Fixed term doesn’t really add much. Once there 6 months you have right to continue up to 6 years with only very limited reasons under which landlord can terminate. Which are about to become even more strict.

The term is further up in the lease.

Term 12 Months
Fixed term tenancy agreement beginning on August 15th 2018 and ending on August 14th 2019

It also says my deposit will be kept if I don't complete the term.

Graham

BrianHartigan wrote: »

It also says my deposit will be kept if I don't complete the term.

Legally speaking you could be held liable for the full rent up-to the end of the term unless the landlord has refused reassignment.

wonski

It's a standard lease.

Graham

Certainly sounds that way.

Most residential leases appear to be based on or around a handful of standard templates these days.

Samuel T. Cogley

Graham wrote: »

Legally speaking you could be held liable for the full rent up-to the end of the term unless the landlord has refused reassignment.

LL has a duty to mitigate loss. I can't see how, in this climate, he could hold the tenant liable to the end of the lease.

The_Conductor

Samuel T. Cogley wrote: »

LL has a duty to mitigate loss. I can't see how, in this climate, he could hold the tenant liable to the end of the lease.

+1
3-4 weeks in the case of a lease broken without consent or in breach of its covenants- is standard- any more and it would, quite legitimately, be challenged. 3-4 weeks is reasonable though- given refurbishment etc necessary between lettings.

4ensic15

Graham wrote: »

Legally speaking you could be held liable for the full rent up-to the end of the term unless the landlord has refused reassignment.

Legally speaking, its assignment not reassignment. A landlord is expected to mitigate his loss so a tenant wouldn't have to pay the full rent up to the end of the term. As I see it, those break clauses are inconsistent with the existence of a fixed term. If the landlord attempted to terminate within the fixed term I would expect the o/p to be able to challenge it successfully.

dennyk

That doesn't look like a "break clause", it looks like standard RTA Part 4 boilerplate that's been included in your lease (and which is also incorrect now in any case, as the Part 4 term for new tenancies is now six years, not four...). Many standard leases include similar wording simply to advise tenants of their rights under Part 4. The existence of a fixed term lease overrides the rights of the landlord to terminate the tenancy during the specified term even for a valid Part 4 reason, however, so they cannot terminate your lease during the one-year fixed term for any reason (except for breach of the lease terms or anti-social behaviour on your part).

meijin

have a read of https://onestopshop.rtb.ie/ending-a-tenancy/ending-a-fixed-term-tenancy/what-is-a-fixed-term-tenancy-what-is-a-part-4-tenancy/

A fixed term tenancy is a tenancy that lasts for a specific amount of time as set out in your tenancy agreement or lease. A ‘part 4’ tenancy runs alongside a fixed term tenancy

and http://www.citizensinformation.ie/en/housing/renting_a_home/types_of_tenancy.html#l3381e

BrianHartigan

dennyk wrote: »

That doesn't look like a "break clause", it looks like standard RTA Part 4 boilerplate that's been included in your lease (and which is also incorrect now in any case, as the Part 4 term for new tenancies is now six years, not four...). Many standard leases include similar wording simply to advise tenants of their rights under Part 4. The existence of a fixed term lease overrides the rights of the landlord to terminate the tenancy during the specified term even for a valid Part 4 reason, however, so they cannot terminate your lease during the one-year fixed term for any reason (except for breach of the lease terms or anti-social behaviour on your part).

I was wondering if that might be the case. As in can it really be a fixed term if the term isn't fixed for both sides?

The entire section has the title "Break clause" though. I'm very happy here so I'd much prefer the right to stay for the sense of security. I wonder whether the break clause or fixed term takes precedence?

davindub

dennyk wrote: »

That doesn't look like a "break clause", it looks like standard RTA Part 4 boilerplate that's been included in your lease (and which is also incorrect now in any case, as the Part 4 term for new tenancies is now six years, not four...). Many standard leases include similar wording simply to advise tenants of their rights under Part 4. The existence of a fixed term lease overrides the rights of the landlord to terminate the tenancy during the specified term even for a valid Part 4 reason, however, so they cannot terminate your lease during the one-year fixed term for any reason (except for breach of the lease terms or anti-social behaviour on your part).

If the lease states the part 4 break terms as break clauses, the fixed term can be terminated for the same reasons.

Baby01032012

The residential tenancies acts as a minimum apply. That has sufficient protection for tenants. A fixed term can add to the security but it doesn’t have to.

I’ve no idea what is thread is about and am worried about some of the responses setting an agenda

Graham

As far as I can make out, residential fixed term leases are largely useless from both a landlord and tenants perspective.

It is rare for any recent residential lease to grant a tenant any additional rights/protections over and above those the tenant would ordinarily acquire under part 4.
On the other hand a landlord (mostly) cannot enforce one of the primary benefits of a lease, i.e. the fixed term.

The only benefit I can see for either side is the clear definition of the rights/responsibilities of each party where those rights/responsibilities are not clearly defined in legislation.

BrianHartigan

Baby01032012 wrote: »

I’ve no idea what is thread is about and am worried about some of the responses setting an agenda

It's clear enough. My last fixed term lease meant I could stay for at least the year as long as I didn't breach the terms but this fixed term has no more protections than a part 4 tenancy. This wasn't always normal, but maybe it is now?

The_Conductor

BrianHartigan wrote: »

It's clear enough. My last fixed term lease meant I could stay for at least the year as long as I didn't breach the terms but this fixed term has no more protections than a part 4 tenancy. This wasn't always normal, but maybe it is now?

Thats not the case.
A landlord cannot serve you with a termination of contract- even under Part IV terms- if you have a fixed term lease- until the elapse of the fixed term lease- regardless of what clauses and articles he/she puts in the lease (even if its a simple cut and paste from the Residential Tenancies Act- the fact that its a fixed term lease overrides these terms- and the more favourable aspect of the fixed term lease applies to the tenant (but not the landlord).

There is no benefit whatsoever for a landlord to give a tenant a fixed term lease- all the benefits accrue to the tenant (if it ever goes to arbitration.)

wonski

Funnily enough I have been getting fixed term tenancy agreements every year from the same landlord, despite me accruing part 4 rights anyway.

The landlord hired agency to deal with contracts only, so they just reissue them every year charging him for the privilege.

OP regardless of what is in the contract cannot reduce any of your rights and you don't have to worry at all. The landlord can't really add any break out clauses that do not comply with tenancy act so you are as safe (or even safer as other poster mentioned) as any other tenant.

The_Conductor

Correct- a formal fixed term lease cannot dilute your rights under the Residential Tenancies Act in any manner- it does however, by virtue of it being a fixed term lease- confer significant additional rights on a tenant which he/she would not have under the Act. Aka- its stupid of the landlord to keep issuing fixed term leases- he is putting constraints on himself that wouldn't otherwise be in force.

Graham

The_Conductor wrote: »

Thats not the case.
A landlord cannot serve you with a termination of contract- even under Part IV terms- if you have a fixed term lease- until the elapse of the fixed term lease- regardless of what clauses and articles he/she puts in the lease (even if its a simple cut and paste from the Residential Tenancies Act- the fact that its a fixed term lease overrides these terms- and the more favourable aspect of the fixed term lease applies to the tenant (but not the landlord).

How does that align with a fixed term lease which provides specific break clauses?

wonski

Graham wrote: »

How does that align with a fixed term lease which provides specific break clauses?

There are no enforceable break clauses in fixed term tenancy agreement. They aren't worth writing down by landlord.

Graham

The RTB suggest otherwise.

Break clause
A break clause may be provided for in a fixed term tenancy agreement. If, for example, the break clause could be exercised after 18 months, and the landlord wanted to exercise the break clause after this time, the tenant could rely on their Part 4 rights to remain in the dwelling. However, if the tenant wanted to exercise the break clause, it would have to be agreed by the tenant and landlord.

Source: RTB https://onestopshop.rtb.ie/ending-a-tenancy/ending-a-fixed-term-tenancy/

wonski

Graham wrote: »

Source: RTB https://onestopshop.rtb.ie/ending-a-tenancy/ending-a-fixed-term-tenancy/

Which confirms that the tenant still can obtain part 4 rights regardless, however if the tenant wants to use it, it would just have to be agreed by both the tenant and the landlord.

This is not enforceable just because it is in contract and it does put the tenant in better position than landlord.

In short the tenant has to agree first.

I think we are thinking the same thing just from different perspective.

Graham

So a break clause in a fixed term tenancy that allows a landlord to terminate the lease prior to the end of the term to sell the property for example is a legitimate break clause as it aligns with the Part 4 rights of the tenant. (as long as the correct notice is given)

wonski

Graham wrote: »

So a break clause in a fixed term tenancy that allows a landlord to terminate the lease prior to the end of the term to sell the property for example is a legitimate break clause as it aligns with the Part 4 rights of the tenant. (as long as the correct notice is given)

The opposite really. I can pick part 4 or fixed term whichever suits me.

Graham

wonski wrote: »

The opposite really. I can pick part 4 or fixed term whichever suits me.

I'm fairly certain that's the whole point for residential lease break clauses mirroring the allowable reasons under Part 4.

I'm still struggling to see how such clauses would be unenforceable. They don't take away the tenants part 4 rights.

4ensic15

Graham wrote: »

I'm fairly certain that's the whole point for residential lease break clauses mirroring the allowable reasons under Part 4.

I'm still struggling to see how such clauses would be unenforceable. They don't take away the tenants part 4 rights.

A fixed term is for a fixed term. The tenant's security of tenure is the greater of part 4 or his lease. Since the same effect could be achieved by having a month to month lease, why is there an end date in the lease?

wonski

Graham wrote: »

I'm fairly certain that's the whole point for residential lease break clauses mirroring the allowable reasons under Part 4.

I'm still struggling to see how such clauses would be unenforceable. They don't take away the tenants part 4 rights.

If we sign a one year lease today, I can stay for a one year minimum providing I pay rent and everything is fine.

If at the end of the term you ask me to sign another lease again this will give me a right to stay.

You cannot break fixed term lease because you moving in or putting house up for sale, unless the tenant agree.

It is all in the link you provided earlier.

Graham

wonski wrote: »

If we sign a one year lease today, I can stay for a one year minimum providing I pay rent and everything is fine.

Unless there's a break clause that doesn't attempt to remove any of your part 4 rights.

A break clause may be provided for in a fixed term tenancy agreement.

There would be little point in the RTB saying the above if your assertion they can't be enforced were correct.

That also appears to be the interpretation from lawonline:

Generally, the reasons under section 34 are not valid grounds for terminating a fixed term tenancy. They can only be used if they have been incorporated as conditions in the fixed term letting agreement.

The_Conductor

Graham wrote: »

How does that align with a fixed term lease which provides specific break clauses?

Break clauses in a fixed term lease, regardless of whether they mirror the RTA (obviously the Part IV provisions), or not- are wholly unenforceable- and have been found to be unenforceable in various RTB tribunals.

If a landlord intends to make use of the break clauses in the RTA- they had better make sure they don't give the tenant a fixed term lease- regardless of what they put in the fixed term lease. The landlord is unintentionally rescinding his/her rights under the RTA- by simply giving the tenant a fixed term lease- wholly regardless of any break clauses or articles they may include in the lease.

Its a case of damned if you do, and damned if you don't- you can't win.

wonski

Graham wrote: »

Unless there's a break clause that doesn't attempt to remove any of your part 4 rights.



There would be little point in the RTB saying the above if your assertion they can't be enforced were correct.

A fixed term lease is a legally binding contract between you and the tenant.

You cannot evict the tenant before the end of lease even if you become homeless, unless the tenant stopped paying rent etc.

The conditions of breaking the fixed term lease are different from ending part 4 tenancy.

If you serve a notice the tenant will use his rights obtained under fixed term contract to remain in the dwelling until the end of this term.

After 6 months the tenant will obtain further part 4 rights which will allow him to stay in the property for up to 6 years unless you serve a valid notice of termination of part 4 tenancy.

Apologies, but I can't make it any clearer.

I'm short if you sign 12 months lease the tenant have a right to stay for 12 months.

The_Conductor

Graham wrote: »

Unless there's a break clause that doesn't attempt to remove any of your part 4 rights.

There would be little point in the RTB saying the above if your assertion they can't be enforced were correct.

That also appears to be the interpretation from lawonline:

If a landlord were to try and invoke the terms of the lease- according to the RTB- it would become a civil matter between the parties- which may be enforceable by the RTB (however, in practice, they have chosen to ignore any terms, articles or covenants- in favour of a global understanding that it is a fixed term lease).

If a landlord intends to invoke his/her rights to possession under the Act- he/she should ensure the tenancy migrates over to a pure Part IV tenancy- and that they do not give the tenant a formal fixed term lease (wholly regardless of any provisions they may include in it).

A lease can only enhance the rights of a tenant- it can never detract from them- however, in the case of a fixed term lease- not only can it not detract from them- by virtue of the lease existing, period, it imparts additional significant rights to the tenant that he/she would not otherwise have.

Its really not funny how socialist its gone.

davindub

The_Conductor wrote: »

Graham wrote: »

How does that align with a fixed term lease which provides specific break clauses?

Break clauses in a fixed term lease, regardless of whether they mirror the RTA (obviously the Part IV provisions), or not- are wholly unenforceable- and have been found to be unenforceable in various RTB tribunals.

If a landlord intends to make use of the break clauses in the RTA- they had better make sure they don't give the tenant a fixed term lease- regardless of what they put in the fixed term lease. The landlord is unintentionally rescinding his/her rights under the RTA- by simply giving the tenant a fixed term lease- wholly regardless of any break clauses or articles they may include in the lease.

Its a case of damned if you do, and damned if you don't- you can't win.

Have you an example of where such break clauses have been unenforceable?

Its simple enough you have a lease with an end date 12 months later unless the landlord wants to break for the reasons given. Perfectly valid assuming there are no conflicting terms.

As the break clauses are those permitted by the act, there is no unlawful terms in the lease.

BrianHartigan

The_Conductor wrote: »

Break clauses in a fixed term lease, regardless of whether they mirror the RTA (obviously the Part IV provisions), or not- are wholly unenforceable- and have been found to be unenforceable in various RTB tribunals.

If a landlord intends to make use of the break clauses in the RTA- they had better make sure they don't give the tenant a fixed term lease- regardless of what they put in the fixed term lease. The landlord is unintentionally rescinding his/her rights under the RTA- by simply giving the tenant a fixed term lease- wholly regardless of any break clauses or articles they may include in the lease.

Its a case of damned if you do, and damned if you don't- you can't win.

Are the break clauses unenforceable? They're in the lease and like other posters have said they don't contradict the Part 4 rights.

wonski wrote: »

I'm short if you sign 12 months lease the tenant have a right to stay for 12 months.

This makes sense to me. Otherwise how can you ever feel at home in the first six months if you only have 28 days guaranteed in the apartment. But the lease does have a break clause so it does seem that I can be served notice at any time.

daithi7

So are fixed term contracts effectively things of the past now?

I.e. Are all private lettings now effectively part 4 lettings, governed by the Rtb provisions??

The_Conductor

daithi7 wrote: »

So are fixed term contracts effectively things of the past now?

I.e. Are all private lettings now effectively part 4 lettings, governed by the Rtb provisions??

All private lettings are effectively Part IV lettings- once they reach the 6 month period at which Part IV rights accrue- regardless of whether (or not) there is a lease or any other provisions in place. A lease or any other provisions- can only give a tenant rights additional to those they enjoy in the Residential Tenancies Act- they cannot detract from those rights in any manner. Once a tenant reaches 6 months- a part IV tenancy automatically vests. Up to the 6 month period- you can have whatever the hell you'd like in a lease- however, once you hit 6 months- a tenant as a very minimum has Part IV rights- and anything else in a lease that is beneficial to a tenant- accrues- anything that isn't- doesn't.

A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

4ensic15

The_Conductor wrote: »

A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

A landlord certainly can give themselves rights in a lease they do not have in the act. A landlord can and most do refuse to allow animals as pets to be kept in the property. There is nothing in the act about pets. Other clauses can be added in. The landlord can't reduce a tenants security of tenure by way of contractual provisions but in other ways, landlords can insert clauses giving them various rights.

4ensic15

The_Conductor wrote: »

A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

A landlord certainly can give themselves rights in a lease they do not have in the act. A landlord can and most do refuse to allow animals as pets to be kept in the property. There is nothing in the act about pets. Other clauses can be added in. The landlord can't reduce a tenants security of tenure by way of contractual provisions but in other ways, landlords can insert clauses giving them various rights.

daithi7

The_Conductor wrote: »

All private lettings are effectively Part IV lettings- once they reach the 6 month period at which Part IV rights accrue- regardless of whether (or not) there is a lease or any other provisions in place. A lease or any other provisions- can only give a tenant rights additional to those they enjoy in the Residential Tenancies Act- they cannot detract from those rights in any manner. Once a tenant reaches 6 months- a part IV tenancy automatically vests. Up to the 6 month period- you can have whatever the hell you'd like in a lease- however, once you hit 6 months- a tenant as a very minimum has Part IV rights- and anything else in a lease that is beneficial to a tenant- accrues- anything that isn't- doesn't.

A landlord cannot give themselves rights they do not have in the Act- in a lease- they can however, even by default, impart significant rights in a lease to a tenant that they would not otherwise have under the Act.

Scary stuff. And this is why politicians, trying to appeal to a larger group of people (i.e. those who rent) disadvantage a smaller group of people, who provide the housing needs of others, and in doing so, mess the whole thing up for everybody, imho.

E.g. Holiday lettings, airbnb, not letting at all options are now often more attractive to more landlords because of this penalising, one sided legislation. Stupid, imho.

P s. I wonder did fine gael introduce such draconian, once sided legislation cos they'd see many small landlords as more likely to be supporters of Fianna Fail!?!