Is this deemed a "substantial change"??

Blub123

The sister has a 2 bed property currently rented out to a great tenant.

The property is in a rpz zone.

Given the quality of the tenant she hasn't put the rent up in years.

Up to now, one of the bedrooms in the property has been locked as she used it for storage of some things.

The apartment therefore, tho a 2 bed had been rented out at the market rate at the time of a 1 bed in the area.

The tenant has given her notice.

The Sister now intends to clear out the storage room and rent the apartment as a 2 bed proper.

Is this deemed a "substantial change" to the property, and can she therefore look to rent it at the market rate or is she locked into the previous rental rate plus the rpz allowed increase, Which would mean rental of a 2 bed property for the rate that a 1 bed currently sits at.

Thanks

Graham

Unlocking a door is not a substantial change by any stretch of the imagination.

Blub123

https://www.boards.ie/discussion/comment/117693746#Comment_117693746

Would you consider yourself knowledgeable in the area Graham or is this an off the cuff remark?

Graham

https://www.boards.ie/discussion/comment/117693773#Comment_117693773

Not to be considered legal advice but there is not a hope in hell that unlocking a door would pass as a substantial change in the nature of the property.

The RTB have a guidance document on what constitutes substantial change, I strongly suggest you seek it out.

Peregrinus

It's possible but unlikely that this is a substantial change.

You could argue that the dwelling you have been letting up to now is the property exclusive of the locked room, to which the tenant has no access and of which the tenant has no use. Now, you'll be letting a larger dwelling which includes the formerly locked room.

Residential Tenancies Act 2004 s. 19(5A) (as inserted by Residential Tenancies (Amendment) Act 2019 s. 6) sets out the tests for what constitutes a substantial change to the dwelling.

One test is that works done have created a permanent extension that increases floor area by at least 25%. You could argue that unlocking the door amounts to "works" creating an extension to the dwelling (given that the dwelling let to date didn't include the second bedroom) but it's a strained argument. It's even more strained to suggest that it creates a "permanent" extension - if locking the door meant that the room was excluded from the dwelling, well, the door could be locked again; there's nothing permanent about the extension. But there's no point in even attempting these arguments unless adding the second bedroom increases the total floor area by at least 25%, which is not very likely. So, probably, no mileage here.

An alternative test is that you have done "works" (again, unlocking the door, which is a bit iffy) which result in any three of the following things happening:

• permanent change to the internal layout - check (if unlocking the door is "permanent").
• permanent increase in the number of rooms - check (again, if unlocking is "permament").
• dwelling adapted to provide for access and use by person with disability - nope.
• a specified improvement to the dwelling's BER - again, nope.

So, even on the most extravagant interpretation of what can amount to "works", it doesn't seem that the "works" here can amount to a "substantial change" to the nature of the accommodation provided.

Mrs OBumble

What is being let now is a different property though: it used to have 1brm, now it has two.

DubLad69

If she was not renting out the full property then could it be argued that she was only renting this person a room in the apartment? And she kept the other room.

Now she is not renting the rooms separately, she is renting an entire apartment. So the old rent would be irrelevant.

Graham

https://www.boards.ie/discussion/comment/117693914#Comment_117693914

I'd love to watch someone try and argue a property had been extended by unlocking a room that had always been there. While the nature of the next tenancy may have changed the nature of the property certainly hasn't.

Equally it would be fun to see someone try and equate opening a door as a change to the internal layout of a property.

While someone with very deep pockets and may want to test their unique interpretations of the legislation in court, most won't. It will start and end at the RTB.

Varik

It's either a substantial change or there was never exclusive use.

FishOnABike

https://www.boards.ie/discussion/comment/117694310#Comment_117694310

It might be instructive to look at previous RTB rulings on the relevance of 'holding back' one room in a property has on the nature of the occupancy / tenancy of the property.

Blub123

Thanks all.

I'll get her to contact the RTB.

While I understand that Unlocking the door, as one poster has reiterated a couple of times, (I presume in case the point wasn't taken on board) , does not constitute an extension of the property, likewise there is a change in the nr of beds being rented which would in many peoples opinion constitute a substantial change to the property ( I know if my current 4 bed suddenly grew a fifth bedroom I'd view it as substantial! 😉)

I'll update this once she gets some feedback so as to improve the knowledge piece.

Thanks all

antix80

https://www.boards.ie/discussion/comment/117694261#Comment_117694261

I agree.

It would be a stretch to say the tenant was a licensee as owner reserved one room.

But this isn't the case here.before, a one bed apartment was being rented out. There was an adjacent storage area which owner had access to... but now, a 2 bed apartment is being rented out, no storage and no owner access....

Sure board pleanala, rtb and tenants can all have opinions and there may be some burden of proof, but if it's as op states then adding an extra bedroom justifies a higher rent.

Graham

https://www.boards.ie/discussion/comment/117694716#Comment_117694716

That's the avenue I'd be exploring.

Previous rent was set based on partial use of the property.

FishOnABike

https://www.boards.ie/discussion/comment/117695459#Comment_117695459

I would have thought the balance would probably fall the other way. AFAIK the RTB has previously ruled that the token retaining of a room in a property did not make the occupancy a licencee agreement and recognised it was in practice a tenancy agreement.

Peregrinus

https://www.boards.ie/discussion/comment/117695276#Comment_117695276

It doesn't matter what constitutes a substantial change "in many people's opinion"; the applicable legislation sets out what counts as a substantial change, and all that matters is whether what has been done falls within the four corners of the legislation. If it does, its' a substantial change; if it doesn't, it isn't. In neither case does the opinion of the masses count for anything at all.

JimmyVik

I wouldnt be thinking about it from a substantial change point of view at all.

You were renting out a 1 bed apartment.

You are now renting out a 2 bed a apartment.

Totally different rentals.

But, I think you should talk to an expert in these matters to find out for sure.

Graham

https://www.boards.ie/discussion/comment/117697822#Comment_117697822

+1

I think what many people would consider right or fair to landlords in these (or similar) circumstances just isn't supported by the legislation.

Many landlords have found themselves effectively punished with permanent below market rates out of kindness, ignorance or circumstance. Overall, in the longer term it benefits neither landlords or tenants as it's only likely to force more landlords from the market.

mrslancaster

https://www.boards.ie/discussion/comment/117698675#Comment_117698675

+1

Say a landlord has a 4 bed house that he lets room by room. Year 1 he only manages to find 3 tenants for say 500pm each (1500 total). Year 2 he finds 4 tenants for his 4 rooms. Does that mean he has to rent each room at 375pm instead of 500?

Peregrinus

https://www.boards.ie/discussion/comment/117702551#Comment_117702551

If he has let a four-bedroomed house for 1500 pm in year 1 then in year 2 he has to let it for 1500 pm. The size of the group to whom he lets it each year is irrelevant; it's the same house.

This cuts both ways; he could let it to a couple or a single person and still charge 1500 pm.

mrslancaster

https://www.boards.ie/discussion/comment/117702827#Comment_117702827

fair point. So if he advertised & expected to rent 4 beds @ 500 each with separate tenancy agreements & had 4 lets agreed but one tenant left after a few days & he couldn't find a replacement, would the house total be set at 2000 then? Just curious about how this actually works.

Aint Eazy Being Cheezy

https://www.boards.ie/discussion/comment/117704064#Comment_117704064

No. Each tenant is an individual, they’d just continue to pay their €500, and the landlord takes the hit up until he gets the vacant room filled.

mrslancaster

https://www.boards.ie/discussion/comment/117704182#Comment_117704182

thanks. So if OP has been letting one bed with one tenancy agreement whats the problem with now letting the 2nd bed with two separate tenancy agreements. The original room would have to be let as per current rent rules but could the new room not be let at market rate if it wasn't let before?

Edit: otherwise anyone who changes the internal layout to increase bedrooms would not be able to charge rent on the extra bedrooms.

Ray Palmer

It really depends on what was filled out on registering the place to rent in the first place. If it was rented as a one bed with no access to the other bedroom and now is a 2 bed it is a different substantially different rental. The rental property for rent has increased substantially.

It will only be an issue if somebody complains and the RTB agree and decide to pursue a case and try to make the argument the property for rent was the same as before and judge to agree. I think that is highly unlikely to happen and even then is the judge going to punish somebody to the full power under a circumstance that are at least questionable.

Get legal advice but ultimately it is likely a calculated view rather than a definitive answer

Tar.Aldarion

From reading the rules on "substantial change" this does not meet them.

Marcusm

https://www.boards.ie/discussion/comment/117693914#Comment_117693914

Peregrinus, is there merit in arguing that the "dwelling" which is offered for lease is a different "dwelling" from that which was the subject of the prior tenancy? In this regard, we might need to establish whether there was any documentary evidence that the prior tenant had neither permission nor the opportunity to utilise the additional bedroom.

Otherwise, I would be less hopeful as the term "substantial nature of the accommodation provided" is defined on an exclusive basis which is the tricky point. Without (5A), I think it would be easy for the landlord to argue based on a construction of the term "substantial change to the nature of the accommodation provided" as it is plainly the case that the nature of a 1 bed flat is different from one which has 2 bedrooms. the initial tenant did not benefit from the second bedroom and thus has different accommodation. However, i do not think it is open to take that argument because of "shall only have taken place where...".

This is a truly unfair situation as it's clearly one of those cases where the attempt to narrow the ecxlusion has become penal.

Blub123

OK, so the RTB were contacted (via the live chat function which was very handy)... Put the query to the lady dealing and she confirmed this would be deemed a substantial change.

There is a facility to email the chat to yourself which was done for record purposes.

So yes, there it is...perhaps the law is not an ass after all.

JimmyVik

https://www.boards.ie/discussion/comment/117718279#Comment_117718279

It would be totally unfair if this were not allowed.

Glad common sense prevailed.

Next thing we would have every house rented by the room, even if the entire house is rented to the one family, just so the landlord could protect themselves from that kind of crap.