Giving Tenant Notice

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 Section 42 of the RTA 2004 was repealed by the RTA 2016: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.