Advertisement
If you have a new account but are having problems posting or verifying your account, please email us on hello@boards.ie for help. Thanks :)
Hello all! Please ensure that you are posting a new thread or question in the appropriate forum. The Feedback forum is overwhelmed with questions that are having to be moved elsewhere. If you need help to verify your account contact hello@boards.ie

What defines a tenant and rights of the owner

Options
  • 05-05-2020 3:22pm
    #1
    Registered Users Posts: 13


    Apartment was briefly let as an airBnB before the world as we know it ended mid March.
    Handled by an airBnB handover agent I used. After its clear no more short term lets he gets a ‘tenant’ in on a 90 day agreed lease with an agreed rent.
    However, unbeknownst to me ( owner - working abroad), he incredibly handed over keys( including car park fob) without 1. A written signed lease agreement 2. Any rent in advance 3. Agreeing or taking a deposit 4. Reading the meter
    The ‘agreement’ was a series of watsapps. ‘Tenant’ promised to pay within first day or two but immediately became redundant upon moving in ( announced the next day).
    Into 7th week and no money ever handed over.
    Belligerent ultra left anti landlord boyfriend then comes out of woodwork and the lies and accusations begin.
    After requests for payment he claims everything imaginable from covid to shingles to pregnancy for his girlfriend ( the one the ‘agreement’ was supposedly with - she’s now taken a back seat).
    So my point/question is this. Will they be considered as tenants by the system if no rent was ever handed over. I believe its called consideration in law and is necessary to commence a legal tenancy in some systems. Am I in a strong position to re claim my property myself if they are basically squatters?
    I am intimidated by the strongly pro tenant regime in this country and the prospect of a long expensive battle to remove them.
    Any feedback appreciated


«1

Comments

  • Registered Users Posts: 1,697 ✭✭✭dennyk


    Yes, that would probably be considered a tenancy; a written agreement is not strictly required, and 90 days is well over the period that would be considered a short-term let. Your agent has screwed you big time. You should speak with a solicitor ASAP about how to proceed given the current circumstances, since you may not be able to give your tenants notice at this time. You should still be able to issue the 14-day notice of arrears, I believe (and should do so immediately if your solicitor advises it), but you'll have to wait to issue the 28-day notice to vacate until a certain period of time after the current emergency period expires. Your tenants should *not* acquire Part 4 rights during this period, however, even if they end up in there longer than six months due to the current ban on eviction notices.

    Unfortunately you can likely expect to have a long and expensive fight on your hands, to never see a dime of rent money, and quite possibly to have a lot of cleanup and/or remodeling work ahead of you once you finally do get them out in a year or three. You might also want to check with your solicitor about whether it would make sense to pursue your agent for the expenses you're going to incur as a result of their negligence.


  • Registered Users Posts: 37,299 ✭✭✭✭the_syco


    Handled by an airBnB handover agent I used. After its clear no more short term lets he gets a ‘tenant’ in on a 90 day agreed lease with an agreed rent.
    However, unbeknownst to me ( owner - working abroad), he incredibly handed over keys( including car park fob) without 1. A written signed lease agreement 2. Any rent in advance 3. Agreeing or taking a deposit 4. Reading the meter
    Stop contacting the agent for the moment, and get an Ireland based solicitor. Preferably one recommended by someone else who has property.

    Check with the solicitor if the agent is liable for the costs. Also, do a bit of checking on social media to see if the agent & the girl or boyfriend know each other.


  • Registered Users Posts: 6,230 ✭✭✭Claw Hammer


    Did you and your spouse live in the apartment at any time?


  • Registered Users Posts: 19,454 ✭✭✭✭Donald Trump


    Seems like squatters to me. Unless the agent had permission to rent out your property they are no better than the fellas who used to rip off students taking deposits for property that they didn't own.


  • Registered Users Posts: 6,308 ✭✭✭alias no.9


    Get a solicitor ASAP, one who covers both tenancy and contract law. The first angle you need them to explore is whether any contract exists at all given the lack of consideration {payment}.

    If you can get legal opinion {may need a barrister} that no contract has been formed on this basis, regardless of the whatsapps given that everything was conditional on payment, they are squatters {as suggested above} at worst or guests {given the set of keys} who are no longer welcome at best.

    Their failure to pay anything at all could be your trump card.

    Edit... Needless to say, sack that agent and examine any options to recover any costs from them for negligence.


  • Advertisement
  • Posts: 5,369 [Deleted User]


    Apartment was briefly let as an airBnB before the world as we know it ended mid March.
    Handled by an airBnB handover agent I used. After its clear no more short term lets he gets a ‘tenant’ in on a 90 day agreed lease with an agreed rent.
    However, unbeknownst to me ( owner - working abroad), he incredibly handed over keys( including car park fob) without 1. A written signed lease agreement 2. Any rent in advance 3. Agreeing or taking a deposit 4. Reading the meter
    The ‘agreement’ was a series of watsapps. ‘Tenant’ promised to pay within first day or two but immediately became redundant upon moving in ( announced the next day).
    Into 7th week and no money ever handed over.
    Belligerent ultra left anti landlord boyfriend then comes out of woodwork and the lies and accusations begin.
    After requests for payment he claims everything imaginable from covid to shingles to pregnancy for his girlfriend ( the one the ‘agreement’ was supposedly with - she’s now taken a back seat).
    So my point/question is this. Will they be considered as tenants by the system if no rent was ever handed over. I believe its called consideration in law and is necessary to commence a legal tenancy in some systems. Am I in a strong position to re claim my property myself if they are basically squatters?
    I am intimidated by the strongly pro tenant regime in this country and the prospect of a long expensive battle to remove them.
    Any feedback appreciated

    At any stage was the boyfriend mentioned before? If he's not then I wouldn't even entertain him as he's not the tenant.

    Lack of payment, I think your best and only reasonable option is to start proceedings for non payment AND fire the agent


  • Registered Users Posts: 14,494 ✭✭✭✭Dav010


    Out of curiosity, if no contract exists, no payment was ever made, the owner was unaware that the person moved in, whose to say they were actually there? theoretically speaking of course.

    By the way, I think the handler stitched you up when money from Airbnb dried up. This seems all too convenient for everyone except you.


  • Registered Users Posts: 13 Priority seat


    Dav010 wrote: »
    Out of curiosity, if no contract exists, no payment was ever made, the owner was unaware that the person moved in, whose to say they were actually there? theoretically speaking of course.

    By the way, I think the handler stitched you up when money from Airbnb dried up. This seems all too convenient for everyone except you.

    Thanks but she already probably has mail sent to her at the address. That would show a presence there. They probably took photos straight away to show they were there just in case.


  • Registered Users Posts: 13 Priority seat


    alias no.9 wrote: »
    Get a solicitor ASAP, one who covers both tenancy and contract law. The first angle you need them to explore is whether any contract exists at all given the lack of consideration {payment}.

    If you can get legal opinion {may need a barrister} that no contract has been formed on this basis, regardless of the whatsapps given that everything was conditional on payment, they are squatters {as suggested above} at worst or guests {given the set of keys} who are no longer welcome at best.

    Their failure to pay anything at all could be your trump card.

    Edit... Needless to say, sack that agent and examine any options to recover any costs from them for negligence.

    Good advice thanks. I need to approach a solicitor to ask this fundamental question.
    However, if i need a barrister to get an opinion as it’s not clear cut then if i evict them likewise the RTB may find it too hard to fine me for the same reason.
    If i was to consider this road should I wait until after the 27th June or just get on with it because if they aren’t real tenants what difference does it make.


  • Registered Users Posts: 13 Priority seat


    Am certain they don’t, agent was incredibly naive and had been taken in by the girl. He was in the habit of letting her pay late on airbandbs. But with much higher rent and a longer period he ( and therefore me) got caught out. It might have been a scam to set up a history with him and then get him to lower his guard. I just don’t know.
    I need to find out if they could be squatters on basis no rent ever paid combined with no written agreement.


  • Advertisement
  • Registered Users Posts: 13 Priority seat


    Seems like squatters to me. Unless the agent had permission to rent out your property they are no better than the fellas who used to rip off students taking deposits for property that they didn't own.

    Yeah he only had permission for airbandb lets. I was under the (mistaken impression ) this was a 30 day rolling over airbandb let where money’s paid in advance


  • Registered Users Posts: 13 Priority seat


    Did you and your spouse live in the apartment at any time?

    No , our student son lived in it for 18 months up until December. Prior to that it was always long term let.


  • Registered Users Posts: 13 Priority seat


    Dav010 wrote: »
    Out of curiosity, if no contract exists, no payment was ever made, the owner was unaware that the person moved in, whose to say they were actually there? theoretically speaking of course.

    By the way, I think the handler stitched you up when money from Airbnb dried up. This seems all too convenient for everyone except you.


    Am certain they don’t, agent was incredibly naive and had been taken in by the girl. He was in the habit of letting her pay late on airbandbs. But with much higher rent and a longer period he ( and therefore me) got caught out. It might have been a scam to set up a history with him and then get him to lower his guard. I just don’t know.
    I need to find out if they could be squatters on basis no rent ever paid combined with no written agreement.


  • Registered Users Posts: 5,367 ✭✭✭JimmyVik


    That doesnt seem like an agreement to me.
    Talk to a solicitor anyway.
    This kind of thing is what has killed the rental market in Ireland.


  • Registered Users Posts: 1,447 ✭✭✭davindub


    Am certain they don’t, agent was incredibly naive and had been taken in by the girl. He was in the habit of letting her pay late on airbandbs. But with much higher rent and a longer period he ( and therefore me) got caught out. It might have been a scam to set up a history with him and then get him to lower his guard. I just don’t know.
    I need to find out if they could be squatters on basis no rent ever paid combined with no written agreement.

    They are not "squatters" as they are there initially with permission.

    Did you have planning permission for the airbnb you were running? If not you will find the courts unsympathetic to your claims that they are not tenants.


  • Registered Users Posts: 5,367 ✭✭✭JimmyVik


    davindub wrote: »
    They are not "squatters" as they are there initially with permission.

    Did you have planning permission for the airbnb you were running? If not you will find the courts unsympathetic to your claims that they are not tenants.


    Thats not how the courts work.


  • Registered Users Posts: 1,447 ✭✭✭davindub


    JimmyVik wrote: »
    Thats not how the courts work.

    Regarding adverse possession cases or RTA cases brought to the superior courts?


  • Registered Users Posts: 5,367 ✭✭✭JimmyVik


    davindub wrote: »
    Regarding adverse possession cases or RTA cases brought to the superior courts?


    How do you see the court case playing out for the op then?


  • Registered Users Posts: 1,447 ✭✭✭davindub


    JimmyVik wrote: »
    How do you see the court case playing out for the op then?

    Depends on what relief he is looking for and legislation relied on but.....

    There is no adverse possession, AP can never arise where the possession began with the owners (or agent of's) permission.

    The rental was not exempt from the RTA under the Holiday Letting exemption.

    If he takes a district or circuit court case to evict them, it will fail as the RTB is the court of first instance for landlord tenant disputes.


  • Registered Users Posts: 6,230 ✭✭✭Claw Hammer


    davindub wrote: »
    Depends on what relief he is looking for and legislation relied on but.....

    There is no adverse possession, AP can never arise where the possession began with the owners (or agent of's) permission.

    The rental was not exempt from the RTA under the Holiday Letting exemption.

    If he takes a district or circuit court case to evict them, it will fail as the RTB is the court of first instance for landlord tenant disputes.

    that depends on whether they wet in under a tenancy agreement or licence. was the AirbnB agent a licecnsed letting agent? He may not have had authority to bind the o/p. The planning status is irrelevant in any case.


  • Advertisement
  • Registered Users Posts: 1,447 ✭✭✭davindub


    that depends on whether they wet in under a tenancy agreement or licence. was the AirbnB agent a licecnsed letting agent? He may not have had authority to bind the o/p. The planning status is irrelevant in any case.

    An agent of the landlord is an agent whether licensed or not. That argument wouldn't really go anywhere...e.g. the LL's father is the agent so not binding.

    Lease vs licence is a long discussion but if possession of the property is granted and for rent paid or by lease, it is nearly certain it is not a licence unless excluded from the RTA (excluding the purpose built student accommodation, which is excluded on the possession and a few other points)

    I mention planning permission because it is clear that the RTA excludes holiday lets, an argument which has been made successfully in the district court was that it had planning permission as holiday acc. and is subject to the conditions attached to holiday lets so a tenancy would not be possible under the RTA. It is far from the only argument....but it was effective. I don't think stating you had your property advertised on airbnb would be effective.


  • Registered Users Posts: 6,230 ✭✭✭Claw Hammer


    davindub wrote: »
    An agent of the landlord is an agent whether licensed or not. That argument wouldn't really go anywhere...e.g. the LL's father is the agent so not binding.

    Lease vs licence is a long discussion but if possession of the property is granted and for rent paid or by lease, it is nearly certain it is not a licence unless excluded from the RTA (excluding the purpose built student accommodation, which is excluded on the possession and a few other points)

    I mention planning permission because it is clear that the RTA excludes holiday lets, an argument which has been made successfully in the district court was that it had planning permission as holiday acc. and is subject to the conditions attached to holiday lets so a tenancy would not be possible under the RTA. It is far from the only argument....but it was effective. I don't think stating you had your property advertised on airbnb would be effective.

    The issue would come down to the authority or ostensible authority of the agent. Impossible to say definitively from the information given.
    As for the District Court, just because something happened doesn't mean it was correct in law.


  • Registered Users Posts: 5,367 ✭✭✭JimmyVik


    davindub wrote: »
    Depends on what relief he is looking for and legislation relied on but.....

    There is no adverse possession, AP can never arise where the possession began with the owners (or agent of's) permission.

    The rental was not exempt from the RTA under the Holiday Letting exemption.

    If he takes a district or circuit court case to evict them, it will fail as the RTB is the court of first instance for landlord tenant disputes.




    I think you are over thinking this tbh.


  • Registered Users Posts: 1,447 ✭✭✭davindub


    The issue would come down to the authority or ostensible authority of the agent. Impossible to say definitively from the information given.
    As for the District Court, just because something happened doesn't mean it was correct in law.

    Your point seems to have changed there, are you saying that only persons or organisations licensed by the PRSA can act with authority of behalf of the landlord? It is clear from the OP that the agent could manage the property, or maybe the OP could clarfiy that if not rather than guessing.

    I really dislike arguments similar to the xxxx court was incorrect at times therefore you don't consider the judgements to be a valid interpretation of the law or that your own jurisprudence is superior because of that fact.

    How do you think the planning permission of the property is irrelevant as to providing evidence that the property is used for holiday accommodation? Certainly there are no tests in the legislation or HC.


  • Registered Users Posts: 26,280 ✭✭✭✭Eric Cartman


    we had this before with Airbnb clients. 90 days, no part 4 rights, claim trespassing and call the gardai, don't even mention the texts.

    As to how your agent was gullible enough to let it without a deposit or any kind of other payment / a card to charge against is beyond me. Atlas with some corporate / short let services you could bill the card to high heaven.


  • Registered Users Posts: 6,230 ✭✭✭Claw Hammer


    davindub wrote: »
    Your point seems to have changed there, are you saying that only persons or organisations licensed by the PRSA can act with authority of behalf of the landlord? It is clear from the OP that the agent could manage the property, or maybe the OP could clarfiy that if not rather than guessing.

    I really dislike arguments similar to the xxxx court was incorrect at times therefore you don't consider the judgements to be a valid interpretation of the law or that your own jurisprudence is superior because of that fact.

    How do you think the planning permission of the property is irrelevant as to providing evidence that the property is used for holiday accommodation? Certainly there are no tests in the legislation or HC.

    All of the facts are needed but it may be possible that it was clear the person who handed over the keys had no authority to bind the owner. The fact that he is not registered for the purpose of entering ettig agreements may be relevant.
    All that has been said here about courts is some vague reference to the District Court. Without knowing the facts and without knowing the arguments it can't be said whther the District Court was correct or not. I don't put a lot of faith in the District Court generally.

    The planning status is not relevant to the problem the o/p now has. The courts won't be looking into it.
    The o/p is now aced with an issue of how to proceed.
    Is there a letting agreement in place or not. Does the o/p have to go to the RTB or go to court.
    There is not enough information to say on the facts given.
    The question of whether a letting is for a holiday or not is an issue of fact.
    the duration of the letting, whether or not household accounts were transferred, whether linen and towels were supplied, the regularity of cleaning, the amount of the deposit and the payment frequency would all be relevant.


  • Registered Users Posts: 5,367 ✭✭✭JimmyVik


    we had this before with Airbnb clients. 90 days, no part 4 rights, claim trespassing and call the gardai, don't even mention the texts.

    As to how your agent was gullible enough to let it without a deposit or any kind of other payment / a card to charge against is beyond me. Atlas with some corporate / short let services you could bill the card to high heaven.


    Maybe set the solicitor on the agent?


  • Registered Users Posts: 1,447 ✭✭✭davindub


    All of the facts are needed but it may be possible that it was clear the person who handed over the keys had no authority to bind the owner. The fact that he is not registered for the purpose of entering ettig agreements may be relevant.
    All that has been said here about courts is some vague reference to the District Court. Without knowing the facts and without knowing the arguments it can't be said whther the District Court was correct or not. I don't put a lot of faith in the District Court generally.

    The planning status is not relevant to the problem the o/p now has. The courts won't be looking into it.
    The o/p is now aced with an issue of how to proceed.
    Is there a letting agreement in place or not. Does the o/p have to go to the RTB or go to court.
    There is not enough information to say on the facts given.
    The question of whether a letting is for a holiday or not is an issue of fact.
    the duration of the letting, whether or not household accounts were transferred, whether linen and towels were supplied, the regularity of cleaning, the amount of the deposit and the payment frequency would all be relevant.

    It is definitely a case for the RTB. Yes whether or not a agent is licensed is relevant (in the same manner the planning permission is relevant to decide whether or not a tenancy) but it's very common for an agent not to be licensed so not conclusive.

    I don't know what your experience is of the superior courts and whether it was a slip of the tongue to say "look into", but you should be aware that in the superior courts, each party makes their own arguments as to whether the RTA applies and as I said the planning permission has been used (there was another case involving a commercial guesthouse in the news a few years ago where it was held not a residential letting even though the leasee had not operated a guesthouse) to prove exclusion from the act.

    Otherwise it is very difficult to prove that lettings are holiday lettings if the tenant refuses to vacate a dwelling after a longer let. Towels, payment frequencies, where advertised etc would not exactly be conclusive in this situation, almost trivial in my opinion unless the LL is running something like a guesthouse. I think airbnb operators are deluded that the courts will be certain to accept what is essentially a short term let (you frequently see minimum period 1 month, etc) as a holiday letting.

    Anyway I have a feeling the above will feature in a few cases over the next 12 months so we can wait to see what tests the courts will apply.


  • Registered Users Posts: 6,230 ✭✭✭Claw Hammer


    davindub wrote: »
    It is definitely a case for the RTB. Yes whether or not a agent is licensed is relevant (in the same manner the planning permission is relevant to decide whether or not a tenancy) but it's very common for an agent not to be licensed so not conclusive.

    I don't know what your experience is of the superior courts and whether it was a slip of the tongue to say "look into", but you should be aware that in the superior courts, each party makes their own arguments as to whether the RTA applies and as I said the planning permission has been used (there was another case involving a commercial guesthouse in the news a few years ago where it was held not a residential letting even though the leasee had not operated a guesthouse) to prove exclusion from the act.

    Otherwise it is very difficult to prove that lettings are holiday lettings if the tenant refuses to vacate a dwelling after a longer let. Towels, payment frequencies, where advertised etc would not exactly be conclusive in this situation, almost trivial in my opinion unless the LL is running something like a guesthouse. I think airbnb operators are deluded that the courts will be certain to accept what is essentially a short term let (you frequently see minimum period 1 month, etc) as a holiday letting.

    Anyway I have a feeling the above will feature in a few cases over the next 12 months so we can wait to see what tests the courts will apply.

    The guest house case was decided on the basis of the landlord livig i the same dwelling. There is no decided case where the issue of planning perission for user determined whether a tenancy existed.
    The case turns on ostensible authority. If a contract is void there is no tenancy.
    Whatever law books you have read don't cover that situation.


  • Advertisement
  • Registered Users Posts: 1,447 ✭✭✭davindub


    The guest house case was decided on the basis of the landlord livig i the same dwelling. There is no decided case where the issue of planning perission for user determined whether a tenancy existed.
    The case turns on ostensible authority. If a contract is void there is no tenancy.
    Whatever law books you have read don't cover that situation.

    You are refering to a different case (HC) I believe. I have given you two examples, one case where I was present in court, one from the media. Your claim that there is no decided case is therefore incorrect.

    Yes, reading lawbooks was pretty much recommended when I studied law but that was a long time ago.....but I suspect you meant that remark to be demeaning.

    Anyway, just so you are aware:

    "Handled by an airBnB handover agent I used" (OP's words)
    = actual authority

    "I asked the leasee to deal with the agent"
    = Ostensible, which is actually an argument the leasee would make if actual authority did not exist.


This discussion has been closed.
Advertisement