Giving Tenant Notice

Bingwhoosh

Hi,
A number of years ago I bought a property with a friend where we both lived for a number of years. I moved out and rented out my room. My friend is now in a position where she can afford to pay the rent that the tenant was paying to me and wants me to give the tenant notice and her pay me what he paid.
I have no issue with this but just wondering what do I put in the letter to the tenant, as the house is part owner occupied is this different???

Hoping someone here has been in a similar situation and can advise.

Thanks

Askthe EA

Bingwhoosh wrote: »

Hi,
A number of years ago I bought a property with a friend where we both lived for a number of years. I moved out and rented out my room. My friend is now in a position where she can afford to pay the rent that the tenant was paying to me and wants me to give the tenant notice and her pay me what he paid.
I have no issue with this but just wondering what do I put in the letter to the tenant, as the house is part owner occupied is this different???

Hoping someone here has been in a similar situation and can advise.

Thanks

Well, it depends on the terms of the lease you gave them, we need more info.

Bingwhoosh

What kind of info do you need, it was a very basic lease.

I am talking more along the lines of the reasons PRTB say that you can terminate a lease, my situation doesn't fall under any of them.

I don't think he is the type to go that route but you never know.

1874

your friend lives in the house you bought with them? and there is another person also living in that house renting just a room, so a lodger?
Sounds like the tenant is technically a licensee, I cant see how or why you would approach it any other way?
I would be availing of the ability to transfer a tax free gift from the current resident owner(your friend) to you for any amount of money equivalent to the amount they receive tax free under the rent a room scheme, maybe the lodger could pay you a tax free gift of any balance directly into your account too?
Not sure whats in it for you if in all of this as if tax free gifts from one person exceed a set level, technically you'd have to pay tax on your share of a house you own but dont get to live in, cant the friend afford to buy you out? that might be a better option

Subutai

It doesn't matter that the house is part owner-occupied, the owner-occupier isn't his landlord, you are. You do not live there.

None of the section 34 grounds apply, you aren't selling or moving back in. Unless your friend who owns the property is a relative that's not going to work.

You will have to wait until your tenants part 4 tenancy expires. Other than that you will have to creatively abuse the s 34 grounds - no doubt you will get creative advice here about how to do that.

If you want to stay within the law you should make an arrangement with your tenant for him/her to leave voluntarily. Offer flexibility with notice periods and compensation for ending their tenancy early. This will be a lot quicker, easier, and possibly cheaper than trying to find a way to abuse the 2004 Act.

Bingwhoosh

Yes my friend lives in the house we bought together.
That's what I wasn't sure would the "tenant" be seen as a licensee when he is living with a part owner even though it is me he pays the rent to.

1874 can you expand further on what you mean in relation to the tax free gift.

To me it doesn't matter who pays me the rent be it current tenant or friend, once I receive the money.

unfortunately she can't afford to buy me out at the moment but it may be an option a few years down the line.

1874

A person the OP bought the house with (in common) lives in the house, Id be hard pushed to offer anything close to the benefits of part 4 as an owner lives there, you were mad to start out on a road offering any rights or a lease, I dont think it was applicable, there are people outright up to blatant disregard for part 4 but some one that owns that house lives there, the other person is technically a licensee. You dont have to be creative about it, it just is.

Bingwhoosh

Subutai - he will be 4 years there in June this year so I could end the tenancy then???

My friend didn't want to take over rent until September but we don't always get what we want!

Subutai

1874 wrote: »

A person the OP bought the house with (in common) lives in the house, Id be hard pushed to offer anything close to the benefits of part 4 as an owner lives there, you were mad to start out on a road offering any rights or a lease, I dont think it was applicable, there are people outright up to blatant disregard for part 4 but some one that owns that house lives there, the other person is technically a licensee. You dont have to be creative about it, it just is.

Part 4 rights accrue as a result of a landlord-tenant relationship. That is fundamentally a contractual relationship, which in this case is clearly with OP alone and not the individual who lives in the house. This is demonstrated fairly obviously by the OP's use of the term "lease" and the fact that rent is paid to the OP. Their ownership or not is irrelevant. They have no licensee relationship with that person.

Subutai

Bingwhoosh wrote: »

Subutai - he will be 4 years there in June this year so I could end the tenancy then???

My friend didn't want to take over rent until September but we don't always get what we want!

You could end the tenancy in the six months following his four year anniversary of moving in. Ensure that you provide adequate notice and follow the requirements for a valid notice of termination.

Bingwhoosh

Thanks Subutai, are you sure on the 6 months following June?

So for a valid notice of termination in relation to Part 4 , i don't need to give a particular reason for ending the lease?

I will give him extra time as in fairness he has been a model tenant.

I want to do everything above board as I don't have time to be dealing with the RTB.

1874

you have put yourself in an unnecessary position really, technically the other owner in common with yourself wants the house all back, they should have managed the whole thing, I just dont see the benefit of buttons you will get now over an outright buy out now, cant the other owner buy you out?
Its not you that wants the lodger out, but the other owner, this is in both your favour and your co owner, by all means be pleasant, but you got yourself into an situation needlessly.

1874

Bingwhoosh wrote: »

Subutai - he will be 4 years there in June this year so I could end the tenancy then???

My friend didn't want to take over rent until September but we don't always get what we want!

If you are going down that road of giving notice, then make sure you do it correctly, you could move in between the person leaving and sept (not to have reason to move the person on) but to help in the payments and I consider importantly to stake your ownership with your co owner. Id be leaving the option open of staying every now and again and deduct it from the amount your friends gives for her share.
Anyway I consider you already had valid reason to give no reason, but you have a valid reason under part 4 anyway, ie the 4 years is up, make sure you give notice at the exact correct time or the clock starts ticking then on 6 years.
Should never have conferred any rights on them and let the existing resident owner deal with people as they have to live with them, overcomplicated things in my opinion, out of interest what was the person paying? a room rate or half a house rate, if the former then I still consider them a lodger.

Bingwhoosh

Thanks for the replies, I done a bit more googling so I can end the tenancy prior to June giving him the required notice that will mean move out in September.

An act in 2017 changed the ability to end the tenancy in the six months following.

1874

Id pay for some advice if I was you, be worth it

Browney7

1874 wrote: »

Id pay for some advice if I was you, be worth it

I'd have the co-owner talk with the tenant first to suss them out a bit. Tenant might be happy to move of their own volition.

Messy situation all round here really

Bingwhoosh

I can terminate under expiration of Part 4 Tenancy so it won't be messy.

Baby01032012

Yes you can terminate on the expiration of the part IV, giving notice prior to the 4 year anniversary ending on or after the expiration. Ensure the written notice follows the RTB template.

Alternatively as the (co) owner is moving back in that also gives grounds for termination of a tenancy. Ensure you follow the correct notice terms giving more than the minimum notice.

Subutai

Bingwhoosh wrote: »

Thanks for the replies, I done a bit more googling so I can end the tenancy prior to June giving him the required notice that will mean move out in September.

An act in 2017 changed the ability to end the tenancy in the six months following.

You can serve notice on him now with a notice period ending in September if you like.

You do need to provide a reason (Duniyva v. PRTB) but that reason can simply be "I am relying in my rights under s 34(b) if the Residential Tenancies Act 2004 to terminate the Tenancy by serving a notice of termination giving the required period of notice when that period of notice expires on or after the end of the Part 4 tenancy"

Subutai

1874 wrote: »

, out of interest what was the person paying? a room rate or half a house rate, if the former then I still consider them a lodger.

The RTB won't.

Claw Hammer

Subutai wrote: »

It doesn't matter that the house is part owner-occupied, the owner-occupier isn't his landlord, you are. You do not live there.

.

That is not true. The op and the other owner are joint landlords. The RTA does not apply where the landlord lives in the dwelling.

Subutai

Claw Hammer wrote: »

That is not true. The op and the other owner are joint landlords. The RTA does not apply where the landlord lives in the dwelling.

They're not a landlord both by virtue of having no contractual relationship with the tenant and by virtue of not being encompassed by the definition of a landlord in s 5 of the RTA

The provisions of the RTA would apply, if a lease existed establishing relations of landlord and tenant, even in the case where, for example, the child, parent, or even spouse of a landlord lived in the property but the landlord himself did not as per s 3(2)(h).

There is no reason to believe that they are joint landlords based on the information provided by OP

Spanish Eyes

Holy cow, who the heck would be a landlord and have to trawl through this kind of a minefield.

Wish you well OP. Maybe contact the Landlords association or whatever they are called now, I don't know if they will take queries, but it is worth a shot.

Subutai

Spanish Eyes wrote: »

Holy cow, who the heck would be a landlord and have to trawl through this kind of a minefield.

Wish you well OP. Maybe contact the Landlords association or whatever they are called now, I don't know if they will take queries, but it is worth a shot.

Where's the minefield? OP can serve a notice of termination in pretty clear circumstances.

The minefield only exists when people try to find ways to decide the law doesn't apply.

davindub

Subutai wrote: »

Claw Hammer wrote: »

That is not true. The op and the other owner are joint landlords. The RTA does not apply where the landlord lives in the dwelling.

They're not a landlord both by virtue of having no contractual relationship with the tenant and by virtue of not being encompassed by the definition of a landlord in s 5 of the RTA

The provisions of the RTA would apply, if a lease existed establishing relations of landlord and tenant, even in the case where, for example, the child, parent, or even spouse of a landlord lived in the property but the landlord himself did not as per s 3(2)(h).

There is no reason to believe that they are joint landlords based on the information provided by OP

Just an opinion as there isn't really anything in the act/ cases since the introduction of the RTB act to refer to situations where the proposed lessor does not have the exclusive possession of the property to create a lease, I'd see that as the more probable outcome if tested.

But fair play to the OP, no harm in giving the tenant plenty of notice.

Spanish Eyes

Subutai wrote: »

Where's the minefield? OP can serve a notice of termination in pretty clear circumstances.

The minefield only exists when people try to find ways to decide the law doesn't apply.

Sorry now, but it is not that easy for many LLs to figure it all out. At least the OP has the sense to know that s/he may need some advice on this.

I get the feeling you may retort that Amateur Landlords should be chastised for not knowing every inch of the L + T Act and all its amendments or something.

1874

Hopefully the person is reasonable, but I think the OP tied themselves up in knots conferring rights by stating they were their landlord when the person could easily have been the resident owners licensee. In my view this person is a lodger, and even writing anything down for a licensee is wrong, tenants have plenty of rights, the idea of conferring a tenancy on someone who no doubt has limited use of a specific space in an owner occupied house, with people saying and the OP appearing to have conferred tenancy rights, is just madness, this isnt like some scenraio where an owner isnt occupant and is blatantly playing fast and loose with part 4 to turn a tenant into a licensee, they clearly are a licensee and appear to have been granted more rights than they are entitled to.

Browney7

Would rent a room relief apply in such a case?

Browney7

Spanish Eyes wrote: »

Sorry now, but it is not that easy for many LLs to figure it all out. At least the OP has the sense to know that s/he may need some advice on this.

I get the feeling you may retort that Amateur Landlords should be chastised for not knowing every inch of the L + T Act and all its amendments or something.

In fairness, any landlord handing over control of an asset worth 6 figures should at the very least familiarise themselves with the latest iteration of the RTA.

Spanish Eyes

Browney7 wrote: »

In fairness, any landlord handing over control of an asset worth 6 figures should at the very least familiarise themselves with the latest iteration of the RTA.

I know, but the panic really only applies when the sh hits the fan generally, in fairness.

The situation of OP is somewhat unique too it has to be said, and may have not been tested either in law or with RTB yet.

If it were me, I would make sure my joint tenant played a part in all this. Seems to me that the OP is the concerned person. That is not right, it should be both owners organising this with the tenant. IMV of course.

Marcusm

Bingwhoosh wrote: »

Hi,
A number of years ago I bought a property with a friend where we both lived for a number of years. I moved out and rented out my room. My friend is now in a position where she can afford to pay the rent that the tenant was paying to me and wants me to give the tenant notice and her pay me what he paid.
I have no issue with this but just wondering what do I put in the letter to the tenant, as the house is part owner occupied is this different???

Hoping someone here has been in a similar situation and can advise.

Thanks

The landlord is the person entitled to the rent from the tenant. The RTA does not apply where the landlord lives in the dwelling. You seem to have constructed a scenario where your co-owner does not get protected by this. By any means, do they control tgevtenancy or receive the money in whole or in part?

GGTrek

Subutai wrote: »

You could end the tenancy in the six months following his four year anniversary of moving in. Ensure that you provide adequate notice and follow the requirements for a valid notice of termination.

This is wrong. Section 42 of the RTA 2004 was repealed by the RTA 2016:
http://www.irishstatutebook.ie/eli/2016/act/17/section/41/enacted/en/html#sec41


This is quite (negatively) suprising for a person with legal studies who is legally supporting the govvie in its determination to screw landlords.



OP, please disregard this advice. What you will have to serve is what is called a section 34(b) notice that you will find here:
https://onestopshop.rtb.ie/images/uploads/Disputes/Sample%20Notice%20of%20Termination%20-%20terminating-before-a-further-part-4-commences.docx


You can only serve it BEFORE the 4 years are up and the termination date has to be (ANY) date AFTER the 4 years of the tenancy expire. Be very careful because you only have once chance to serve it. If you fail you will have to wait 6 years in order to provide a similar notice (in 6 years you will be screwed by new regulations anyway! I strongly believe that given the current anti-landlord situation you are doing the right thing and minimizing your risks).


If you are unsure on how to prepare it or to serve it, I suggest you to go to a solicitor specialized in tenancy law (PM me if you need someone in Dublin) to prepare and/or to serve it.

Subutai

davindub wrote: »

Just an opinion as there isn't really anything in the act/ cases since the introduction of the RTB act to refer to situations where the proposed lessor does not have the exclusive possession of the property to create a lease, I'd see that as the more probable outcome if tested.

But fair play to the OP, no harm in giving the tenant plenty of notice.

The act provides a specific statutory definition of what a landlord is for the purposes of the act. There is also abundant case law on the difference between tenants and licensees - proper precedent not just RTB tribunal reports. Exclusive possession is not necessarily determinative in terms of creating landlord/tenant relations. What is really important is the intention of both parties when the agreement was created (Irish Shell Ltd v Costello Ltd [1981] ILRM 66). The fact that OP offered a "standard" lease will be important in establishing that he intended to create landlord and tenant relations. Also important will be the payment of rent to OP.


Exclusive possession refers to the exclusion, in particular, of the landlord. OP's situation would certainly be different if the landlord himself does. He does not. The person who does live there is not the landlord. Zhang v. Holohan (TR168/2011/DR92/2011) is an important RTB precedent here:

In our view the words “exclusive occupation” have to be interpreted as excluding other persons who have no right to such occupation, rather than “exclusive occupation” being necessary to create a tenancy to which the 2004 Act applies.
We find as a matter of fact in this case, that the Appellant Tenant had an exclusive right to occupation of a bedroom and a non-exclusive right to other rooms in the unit ie bathroom, kitchen, and living room, which she was required to share with whoever else might have a right from time to time to exclusive occupation of the other bedroom. As the Appellant Tenant was paying rent to the Respondent Landlord for this right, we find as a matter of law that there was a tenancy of a “dwelling” within the definition of the 2004 Act as it was a “self-contained residential unit” and consequently the PRTB and this Tribunal has jurisdiction in relation to a dispute in relation to the tenancy.

Much better than going down a route where you will be on very shaky ground is simply terminating the tenancy by mutual agreement or in the manner prescribed in the Act.

Spanish Eyes wrote: »

Sorry now, but it is not that easy for many LLs to figure it all out. At least the OP has the sense to know that s/he may need some advice on this.

I get the feeling you may retort that Amateur Landlords should be chastised for not knowing every inch of the L + T Act and all its amendments or something.

There is no such thing as an amateur landlord. It is a business, and that fact is often cited here to justify quite callous behaviour towards people including rendering individuals homeless. If you're going to operate as a business then understanding the laws that regulate you is important.

I don't expect that they should know every inch of it and all amendments. What is important is understanding the basics of what constitutes a tenancy, how the tenancy can be terminated, and how its terms can be altered. If you don't know that, and lack the ability to look it up (which doesn't apply to OP) then you've to accept that getting legal advice is a cost of doing business. It isn't necessary in most cases, the law regulating landlords is simple enough, lots of plain-English guidance is available (including sample notices) and consolidated versions of the RTA are also available.

GGTrek wrote: »

This is wrong. Section 42 of the RTA 2004 was repealed by the RTA 2016:
http://www.irishstatutebook.ie/eli/2016/act/17/section/41/enacted/en/html#sec41


This is quite (negatively) suprising for a person with legal studies who is legally supporting the govvie in its determination to screw landlords.

Yep, I corrected myself in a later post. I'd be the first to admit to not knowing everything.

I'd love to know on what basis you claim I am legally supporting the government in "screwing landlords". Your victim complex is producing a serious paranoia.

davindub

Subutai wrote: »

The act provides a specific statutory definition of what a landlord is for the purposes of the act. There is also abundant case law on the difference between tenants and licensees - proper precedent not just RTB tribunal reports. Exclusive possession is not necessarily determinative in terms of creating landlord/tenant relations. What is really important is the intention of both parties when the agreement was created (Irish Shell Ltd v Costello Ltd [1981] ILRM 66). The fact that OP offered a "standard" lease will be important in establishing that he intended to create landlord and tenant relations. Also important will be the payment of rent to OP.


Exclusive possession refers to the exclusion, in particular, of the landlord. OP's situation would certainly be different if the landlord himself does. He does not. The person who does live there is not the landlord. Zhang v. Holohan (TR168/2011/DR92/2011) is an important RTB precedent here:

In our view the words “exclusive occupation” have to be interpreted as excluding other persons who have no right to such occupation, rather than “exclusive occupation” being necessary to create a tenancy to which the 2004 Act applies.
We find as a matter of fact in this case, that the Appellant Tenant had an exclusive right to occupation of a bedroom and a non-exclusive right to other rooms in the unit ie bathroom, kitchen, and living room, which she was required to share with whoever else might have a right from time to time to exclusive occupation of the other bedroom. As the Appellant Tenant was paying rent to the Respondent Landlord for this right, we find as a matter of law that there was a tenancy of a “dwelling” within the definition of the 2004 Act as it was a “self-contained residential unit” and consequently the PRTB and this Tribunal has jurisdiction in relation to a dispute in relation to the tenancy.

Much better than going down a route where you will be on very shaky ground is simply terminating the tenancy by mutual agreement or in the manner prescribed in the Act.

I understand where you are coming from, but if the landlord does not have the right to exclude the other owner from the property or a particular area of the dwelling, there is no property right to transfer by means of a lease. Zhang is not really the issue at hand, it would be more similar to 2 tenants, one moves out offering a sublease to their replacement, which cannot happen as the person moving out shares a tenancy with the other tenant. Just on a side note, I don't think exclusive occupation means to exclude the landlord, rather exclude all others with the possible exception of the landlord. Anyway something to think about, Tully (HC) makes good points when considering exclusive occupation. So the OP's situation would likely fail on exclusive occupation and existence of a lease implied or actual.