backdating tenancy

mrslancaster

How can OP find out how long the tenancy agreement is in place if it is not registered with the RTB and the tenant has no written lease?

Could the tenant get copy utility bills with the address as proof of when they moved in - the esb could provide details of when the account was opened. If the utilities are still in the previous owners name and still working who has been paying the bills? maybe tenant could provide a copy of a Revenue document or a letter from DSP showing the address? (other details redacted for GDPR)

Mad_maxx

Ballso wrote: »

There's no such thing as a 'no fixed term lease', it's a part 4 tenancy. This is basic tenancy law 101. Not hard to see why robust protection for tenants is required, this is cowboy stuff.

Dav said a "no fixed term lease" trumps a part 4 tenancy

From a tenants point of view, it's far more valuable

meijin

Mad_maxx wrote: »

Thank you

I'm sitting here in deep shock, while I do not know for sure, it seems if a "no fixed term lease" exists and the conditions are that i must pay for the electricity and gas bills while collecting no more than 500 quid per month, the term of this arrangement is infinite.

The property is effectively locked into a bum deal permanently

no, you can change the rent amount

you keep asking random questions... instead you should:
1. establish facts from tenants or previous owners
2. read rtb.ie and educate yourself how tenancies work in Ireland
3. then ask questions

Graham

Mod Note

Ballso, turn down the outrage please. I would be more concerned by a new landlord that wasn't asking questions.

dancingqueen

Mad_maxx wrote: »

Thank you

I'm sitting here in deep shock, while I do not know for sure, it seems if a "no fixed term lease" exists and the conditions are that i must pay for the electricity and gas bills while collecting no more than 500 quid per month, the term of this arrangement is infinite.

The property is effectively locked into a bum deal permanently

Even if the tenants had a fixed term lease, they are protected by Part 4 once they are there over 6 months. If they are correct in their saying they are there over 6 years then they are protected by this law. Once a new 4 years starts within the first 6 months you can end their tenancy for no good reason.

As for paying utility bills, this seems strange.. and I don't trust it. You need to seek legal advice and get solid proof of this. How can they have been living there since the receiver took it over - did the receiver take over the utility bills? If not, they would have been cut off surely for non payment.

Graham

meijin wrote: »

2. read rtb.ie and educate yourself how tenancies work in Ireland

This is good advice.

OP, a tenant automatically acquires Part 4 rights after 6 months. A lease can only add to the Part 4 rights, it can't remove anything or impose lesser anything.

You can only end a part 4 tenancy for specific reasons and subject to specific notice periods. The only exception to this is at the end of a 4yr or 6yr period but you would definitely want professional advice there.

Mad_maxx

meijin wrote: »

no, you can change the rent amount

you keep asking random questions... instead you should:
1. establish facts from tenants or previous owners
2. read rtb.ie and educate yourself how tenancies work in Ireland
3. then ask questions

Hi Meijin

i was a LL before , i just didnt realise that any of this was a possibility and neither did my solicitor . they told me if i was a cash buyer and prepared to spend two years going through an eviction process with the occupants , they could approve the deal as the title was good broadly speaking , the vendor has been asked to try and get something related to a pre existing tenancy but are under no obligation to provide same.

dav made it clear earlier that a no fixed lease ( no matter how onerous the conditions therein ) trumps any future attempts by the LL to update the rent to reflect market rates. no one has yet disagreed with him either , its an astonishing revelation to me that an agreement can be infinite , im absolutely in shock

Mad_maxx

mrslancaster wrote: »

How can OP find out how long the tenancy agreement is in place if it is not registered with the RTB and the tenant has no written lease?

Could the tenant get copy utility bills with the address as proof of when they moved in - the esb could provide details of when the account was opened. If the utilities are still in the previous owners name and still working who has been paying the bills? maybe tenant could provide a copy of a Revenue document or a letter from DSP showing the address? (other details redacted for GDPR)

the tenant is paying the utility bills i presume , previous landlord lost the property to receivers

Mad_maxx

dancingqueen wrote: »

Even if the tenants had a fixed term lease, they are protected by Part 4 once they are there over 6 months. If they are correct in their saying they are there over 6 years then they are protected by this law. Once a new 4 years starts within the first 6 months you can end their tenancy for no good reason.

As for paying utility bills, this seems strange.. and I don't trust it. You need to seek legal advice and get solid proof of this. How can they have been living there since the receiver took it over - did the receiver take over the utility bills? If not, they would have been cut off surely for non payment.

none of that is as important as what dav said

if the previous landlord entered into a " no fixed term " lease with the tenants which states that the rent is 500 quid per month and that the landlord pays the electricity and gas bills . , that agreement is for an infinite period

this is a hypothetical of course , there may be no written lease stating those conditions but if there is (and the tenant told me he used to pay 500 but the landlord covered the utility bills ) , its an unmitigated disaster for me and i would have to forfeit on my deposit if there is any conceivable scenario where the original landlord entered into such an arrangement , it would be too late after closing to do anything about it so i will have to seek professional advice in the next three weeks in relation to what a " no fixed term lease " can bestow upon a new owner , there is no way anyone could live with a mere 500 euro per month and pay utility bills for good measure

Graham

A part 4 tenancy isn't really 'infinite' there are just limitations on when/why/how it can be ended.

It would be in your own interest to rapidly familiarise yourself with the when/why how.

If the property is not within an RPZ, you may also consider bringing the rent up-to market rates sooner rather than later.

Claw Hammer

it isn't just as simple as forfeiting the deposit. The defaulting purchaser can be sued for specific performance and or damages in lieu.
The o/p needs specialist legal advice. Very few solicitors are knowledgeable about the Residential Tenancies Act. The O/p will need counsel before this turns into a bigger mess.

meijin

Mad_maxx wrote: »

if the previous landlord entered into a " no fixed term " lease with the tenants which states that the rent is 500 quid per month and that the landlord pays the electricity and gas bills . , that agreement is for an infinite period

there is no "no fixed term" lease definition; it's pointless to discuss this until you learn what is Part 4 tenancy; and of course you can change the rent...

again... go to rtb.ie and read

Mad_maxx

Graham wrote: »

This is good advice.

OP, a tenant automatically acquires Part 4 rights after 6 months. A lease can only add to the Part 4 rights, it can't remove anything or impose lesser anything.

You can only end a part 4 tenancy for specific reasons and subject to specific notice periods. The only exception to this is at the end of a 4yr or 6yr period but you would definitely want professional advice there.

Graham , i know all of the above , im entirely focused right now on what dav said earlier , if a " no fixed term " lease exists and was drawn up with a very low rent and an obligation on my part to cover utility bills , this deal is now set in stone , infinite and mine to hold and keep

Mad_maxx

Graham wrote: »

A part 4 tenancy isn't really 'infinite' there are just limitations on when/why/how it can be ended.

It would be in your own interest to rapidly familiarise yourself with the when/why how.

If the property is not within an RPZ, you may also consider bringing the rent up-to market rates sooner rather than later.

dav said a " no fixed term lease " prevents you from bringing the rent up to market rate

Graham

I've never seen or heard of a "no fixed term lease", certainly in the context of Irish residential leases.

Mad_maxx

Claw Hammer wrote: »

it isn't just as simple as forfeiting the deposit. The defaulting purchaser can be sued for specific performance and or damages in lieu.
The o/p needs specialist legal advice. Very few solicitors are knowledgeable about the Residential Tenancies Act. The O/p will need counsel before this turns into a bigger mess.

im going to need hospitalisation based on what dav has posted earlier , im actually in shock

i was always prepared to not get paid any rent for two years , to have to spend money if the occupants damaged the property if an eviction was required , what i wasnt prepared for was a previously agreed rent amount and attached conditions having an infinite duration while the tenants remaining in situ

Mad_maxx

Graham wrote: »

I've never seen or heard of a "no fixed term lease", certainly in the context of Irish residential leases.

dav posted a link earlier , neither you or anyone else picked a bone with his posts on this thread and the bulk of them were truly extrordinary statements

L1011

Mad_maxx wrote: »

dav posted a link earlier , neither you or anyone else picked a bone with his posts on this thread and the bulk of them were truly extrordinary statements

You've misread or misinterpreted some of what's been posted here. Dav010s posts are correct from what I've seen on a quick read back of the thread but don't say quite what you seem to have picked up

Also the "no fixed term lease" wording you have there is not a type of lease. Or actually used by anyone else as far as I can see.

mrslancaster

Max, I look after a house for a family member who works away so not as familiar with the legislation as others are. The house is in an rpz area and is way under rents in the area. The rent was low when they left and then the rpz rules came in. They will be away for another couple of years and a while ago they were looking to see how to bring the rent a bit nearer to market rates. It turns out it can only be done if they build an extension or do other major work. Even if the tenant moves out, there is only a few things that can bring it up to market rates and I don't know how the allowed works could be done in an apartment.

Claw Hammer

mrslancaster wrote: »

Max, I look after a house for a family member who works away so not as familiar with the legislation as others are. The house is in an rpz area and is way under rents in the area. The rent was low when they left and then the rpz rules came in. They will be away for another couple of years and a while ago they were looking at how to bring the rent a bit nearer to market rates. It turns out it can only be done if they build an extension or do other major work. Even if the tenant moves out, there is only a few things that can bring it up to market rates and I don't know how the allowed works could be done in an apartment.

The o/p is a long way from even thinking about getting the rent up. He is going into a situation which he is unprepared for. When in a hole, stop digging.

Mad_maxx

L1011 wrote: »

You've misread or misinterpreted some of what's been posted here. Dav010s posts are correct from what I've seen on a quick read back of the thread but don't say quite what you seem to have picked up

Also the "no fixed term lease" wording you have there is not a type of lease. Or actually used by anyone else as far as I can see.

it is my interpretation ( according to dav ) that i would inherit all and any of what was in a potential lease agreed in the past between the previous landlord and the current occupants and that i would have no way of nullifying said conditions outside of evicting the current occupants ? , that outside of an eviction , i have no recourse here to change anything up to and including a standard rent review ? , never mind the potential obligation to cover utility bills .

if i cant do a rent review , i cannot easily move to evict as i have to give other reasons apart from a refusal to pay a newly revised rent , tenants dont need to agree to a new rent if a previously agreed lease blocks a desired rent review on the part of the landlord

it means im boxed in .

Mad_maxx

mrslancaster wrote: »

Max, I look after a house for a family member who works away so not as familiar with the legislation as others are. The house is in an rpz area and is way under rents in the area. The rent was low when they left and then the rpz rules came in. They will be away for another couple of years and a while ago they were looking to see how to bring the rent a bit nearer to market rates. It turns out it can only be done if they build an extension or do other major work. Even if the tenant moves out, there is only a few things that can bring it up to market rates and I don't know how the allowed works could be done in an apartment.

this property is not in a RPZ but if SF get their way , every part of the country will be frozen for three years .

Claw Hammer

Its not the end of the world!

Mad_maxx

Claw Hammer wrote: »

Its not the end of the world!

Nicest thing you've said so far

TheChizler

You inherit the conditions but you can still do rent reviews. Forgot about the infinite thing it doesn't happen.

dennyk

Mad_maxx wrote: »

it is my interpretation ( according to dav ) that i would inherit all and any of what was in a potential lease agreed in the past between the previous landlord and the current occupants and that i would have no way of nullifying said conditions outside of evicting the current occupants ? , that outside of an eviction , i have no recourse here to change anything up to and including a standard rent review ? , never mind the potential obligation to cover utility bills .

if i cant do a rent review , i cannot easily move to evict as i have to give other reasons apart from a refusal to pay a newly revised rent , tenants dont need to agree to a new rent if a previously agreed lease blocks a desired rent review on the part of the landlord

it means im boxed in .

Take a breath, man; you're conflating a lot of different terms here and things most likely aren't as bad as you're thinking.

A fixed term lease is an agreement which specifies the tenant's right to occupy the property for a specific term. These are generally relatively short terms; a year is fairly common, and anything longer is unusual, but the length of the term must be fixed and specified in the lease; there is no such thing as an "indefinite" or "infinite" term lease. The landlord generally can't terminate a tenancy during a fixed term even for the allowable reasons under Part 4, or change the rent during the term (which isn't usually an issue anyway, as again most fixed term leases are for a year or less, so no rent review would be possible in that timeframe anyway). Once the current fixed term has ended, the tenant still has the right to remain under Part 4 of the RTA, but at that point the landlord can terminate the tenancy for an allowable reason. Fixed terms can be renewed by the tenant and landlord signing a new fixed term lease, but if no new lease is signed, the tenancy generally reverts to a periodic tenancy.

A tenancy agreement is the agreement of the terms of the tenancy between the landlord and the tenant. This agreement might accompany an initial fixed term lease, or it may not specify any particular term, in which case the tenancy is simply a periodic tenancy from the beginning. Regardless of whether there was an initial fixed term in the original agreement or not, the other terms of the tenancy agreement unrelated to the length of tenancy or the rent amount will generally persist for the life of the tenancy (including all Further Part 4 tenancy periods), unless a new agreement is signed by both parties that modifies or supersedes them.
A tenancy agreement can't override the tenant's statutory rights, only add to them, so a tenant can't contract out of their Part 4 rights or agree to illegal rent increases or waive their right to statutory notice periods in advance via an agreement. It can, however, grant the tenant additional rights.

Outside of a fixed term, a landlord can conduct a rent review at the intervals permitted by the RTA; even if an initial rent was specified in the original agreement, it would generally only be binding for the length of the agreed fixed term, and if there was no fixed term, then the landlord could review the rent as early as the law allows. You are not permanently stuck with the original rent amount agreed on, so long as the last fixed term the tenants entered into with the previous landlord has expired.

Utility bills could be a potential issue; if the current tenancy agreement really does specify that the landlord is responsible for the utility bills, that would in fact become your responsibility for the duration of the tenancy. If the tenants can't produce a written agreement to that effect with the previous landlord, though, and the current utility services are in the tenant's name, then it would be really difficult for them to prove that such an agreement existed; it would be a very unusual arrangement, assuming the property is a standard self-contained residence with separate utility metering, so the RTB may not be willing to simply accept the tenant's word on that matter with no evidence to back it up. That'd be a matter to discuss with your solicitor to work out how best to approach that, for sure.

As for ending the tenancy, that can only be done for any of the valid reasons under Part 4, or it can be done at the end of the tenants' current Further Part 4 cycle (which, unfortunately, won't be for another 3-4 years, depending on the exact date when their tenancy commenced). As others have pointed out, neither the lack of RTB registration or their previous nonpayment of rent invalidates their current tenancy or affects their rights under the RTA.

If you wanted to play hardball, there's a potential matter of their current arrears; if they haven't been paying rent as agreed to the receiver this whole time, they are technically in arrears, and could be issued a 14 day notice to correct followed by a 28 day notice to vacate on those grounds. I'd strongly recommend discussing that with your solicitor, though, as it's a potentially complex situation due to the receivership and subsequent transfer of ownership of the property during the time in which the arrears were originally due. (Also, keep in mind that even if you did take that approach, if they did pay the full amount of the arrears within 14 days then the matter would be settled and you could no longer issue a notice to vacate, so it isn't a guaranteed way to get them out...).

Mad_maxx

TheChizler wrote: »

You inherit the conditions but you can still do rent reviews. Forgot about the infinite thing it doesn't happen.

So if i register the tenancy, seeing as you must give three months notice for a rent review, presumably that means I must receive 500 euro per month and cover the utility bills for the first three months as the tenants word on it alone guarantees this is the conditions inherent?

what if after three months and the tenants choose not to pay the extra rent, am I stuck with the utility bills obligation, i can issue a termination notice for rent arrears but that would leave me paying for the electricity and gas until i managed to get them out as you can't simply turn off the power

dennyk

Mad_maxx wrote: »

what if after three months and the tenants choose not to pay the extra rent, am I stuck with the utility bills obligation, i can issue a termination notice for rent arrears but that would leave me paying for the electricity and gas until i managed to get them out as you can't simply turn off the power

Whose name are the utilities currently in? Have you actually seen a written tenancy agreement stating that the landlord is responsible for utilities, or are you just going by the word of the tenant? If the utilities are currently in the tenant's name and they have no evidence of any such agreement with the previous landlord, then you're most likely under no obligation to take over the utility bills or to reimburse the tenant for them, and if the tenant quits paying their own bills and gets their services shut off, that's going to be on them, not on you.

Mad_maxx

dennyk wrote: »

Take a breath, man; you're conflating a lot of different terms here and things most likely aren't as bad as you're thinking.

A fixed term lease is an agreement which specifies the tenant's right to occupy the property for a specific term. These are generally relatively short terms; a year is fairly common, and anything longer is unusual, but the length of the term must be fixed and specified in the lease; there is no such thing as an "indefinite" or "infinite" term lease. The landlord generally can't terminate a tenancy during a fixed term even for the allowable reasons under Part 4, or change the rent during the term (which isn't usually an issue anyway, as again most fixed term leases are for a year or less, so no rent review would be possible in that timeframe anyway). Once the current fixed term has ended, the tenant still has the right to remain under Part 4 of the RTA, but at that point the landlord can terminate the tenancy for an allowable reason. Fixed terms can be renewed by the tenant and landlord signing a new fixed term lease, but if no new lease is signed, the tenancy generally reverts to a periodic tenancy.

A tenancy agreement is the agreement of the terms of the tenancy between the landlord and the tenant. This agreement might accompany an initial fixed term lease, or it may not specify any particular term, in which case the tenancy is simply a periodic tenancy from the beginning. Regardless of whether there was an initial fixed term in the original agreement or not, the other terms of the tenancy agreement unrelated to the length of tenancy or the rent amount will generally persist for the life of the tenancy (including all Further Part 4 tenancy periods), unless a new agreement is signed by both parties that modifies or supersedes them.
A tenancy agreement can't override the tenant's statutory rights, only add to them, so a tenant can't contract out of their Part 4 rights or agree to illegal rent increases or waive their right to statutory notice periods in advance via an agreement. It can, however, grant the tenant additional rights.

Outside of a fixed term, a landlord can conduct a rent review at the intervals permitted by the RTA; even if an initial rent was specified in the original agreement, it would generally only be binding for the length of the agreed fixed term, and if there was no fixed term, then the landlord could review the rent as early as the law allows. You are not permanently stuck with the original rent amount agreed on, so long as the last fixed term the tenants entered into with the previous landlord has expired.

Utility bills could be a potential issue; if the current tenancy agreement really does specify that the landlord is responsible for the utility bills, that would in fact become your responsibility for the duration of the tenancy. If the tenants can't produce a written agreement to that effect with the previous landlord, though, and the current utility services are in the tenant's name, then it would be really difficult for them to prove that such an agreement existed; it would be a very unusual arrangement, assuming the property is a standard self-contained residence with separate utility metering, so the RTB may not be willing to simply accept the tenant's word on that matter with no evidence to back it up. That'd be a matter to discuss with your solicitor to work out how best to approach that, for sure.

As for ending the tenancy, that can only be done for any of the valid reasons under Part 4, or it can be done at the end of the tenants' current Further Part 4 cycle (which, unfortunately, won't be for another 3-4 years, depending on the exact date when their tenancy commenced). As others have pointed out, neither the lack of RTB registration or their previous nonpayment of rent invalidates their current tenancy or affects their rights under the RTA.

If you wanted to play hardball, there's a potential matter of their current arrears; if they haven't been paying rent as agreed to the receiver this whole time, they are technically in arrears, and could be issued a 14 day notice to correct followed by a 28 day notice to vacate on those grounds. I'd strongly recommend discussing that with your solicitor, though, as it's a potentially complex situation due to the receivership and subsequent transfer of ownership of the property during the time in which the arrears were originally due. (Also, keep in mind that even if you did take that approach, if they did pay the full amount of the arrears within 14 days then the matter would be settled and you could no longer issue a notice to vacate, so it isn't a guaranteed way to get them out...).

a few questions , as its not possible to conduct a rent review while in a fixed term lease , what is the longest possible duration for a fixed term lease ? , it sounds possible that any fixed term lease may have expired and thus things have since refereed to part 4 or further part 4 tenancy rules ?

again what is the maximum length a fixed term lease can be ?

under the further part 4 cycle , assuming i can still carry out a rent review ? , can i issue a rent arrears as a prelude to an eviction notice or does the further part 4 shield the tenants from this even they dont pay the increased rent post review ?

to reiterate , even with further part 4 tenancy in place , would not agreeing to a rent review - increase in the rent , allow for me issuing a notice of termination

my goal at the start was to set a new rent , i would not have bought a property with a low rent in a RPZ , never thought about a possible fixed term lease thwarting my plans , hopefully i can get hold of any lease that was agreed between now and the thirty day closing period

Mad_maxx

dennyk wrote: »

Whose name are the utilities currently in? Have you actually seen a written tenancy agreement stating that the landlord is responsible for utilities, or are you just going by the word of the tenant? If the utilities are currently in the tenant's name and they have no evidence of any such agreement with the previous landlord, then you're most likely under no obligation to take over the utility bills or to reimburse the tenant for them, and if the tenant quits paying their own bills and gets their services shut off, that's going to be on them, not on you.

the property is a two bed apartment , i can only assume the utility bills are in the occupants name but i will look into that , i should have done so when i visited the place last friday night .

if the fixed term lease duration has expired , granted the tenants still have protection under part 4 or further part 4 but do any conditions like utility bills live on , if those unusual conditions were put in a fixed term lease and that lease was only for a year , one might think those no longer transferred to me ?