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Joint Tenancy One Tenant Leaving.

  • 19-09-2021 8:12am
    #1
    Registered Users Posts: 25 themoone


    Rather complex case but I hope you can give you expert openion.

    I have a property rented to a group of tenants in a Joint and Several periodic part 4 lease (clearly stated in lease). A while back one tenant contacted and asked about 2 leaving and 2 remaining so advised to issue notice. Heard nothing so I issued a "Notice to Remain" to find out what was going on. Tenant came back to say will be delayed for a week (presume to find a replacement). Then notice came with the name of someone that is not a tenant and informed one of the tenants was leaving at the end of the week. Contacted tenant who confirmed the he was leaving at said time still no notice although was advised but he decided to ignore. Tenants of legal background so should know the law. Anway upon carrying out exit inspection tenant advised he still had stuff and would collect later. But handed over set of keys.

    A week later received notice from one of the remaining tenants requesting to assign part of lease on behalf of vacating tenants. As the RTA prohibits assiging part of the dwelling I refused in addition the lease requires that the consent be done in advance which is not the case.

    Tenant comes back informing that the person will move in as their licencee/lodger and that accordingly they do not need my consent. The Lease states "To use the Dwelling as a residence only for the named tenant".

    Here are my questions:

    • Can they have a licencee/lodger when it states that "only for the named tenant"?
    • How can this be handled with updating tenancy with the RTB or do landlords not bother with that?
    • If the remaining tenants vacate over the years does this licencee/sublet have to leave with the last remaining tenant of the lease. I have read this on the board but not sure, so can you direct me to this?

    Over the years you have been very helpful in providing information and hope that you will be able to explain what is clearly a complex case.



Comments

  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    Looking at the full sentence I would think there could be a difference in the interpretation of

    To use the Dwelling as a residence only for the named tenant.

    and

    To use the Dwelling as a residence for the named tenant only.




  • Registered Users Posts: 631 ✭✭✭ houseyhouse


    Licensee is not the same as a sublet in terms of rights. See here: https://ipoa.ie/difference-between-subletting-an-assignment-and-a-licensee/

    Most standard lease agreements have something about not having other people in the property for more than X nights per month without landlord permission. Do you have anything like that in yours?

    Why were you doing an exit inspection if the lease isn’t ending? You may have shot yourself in the foot by not allowing them to just assign the lease to somebody else. Why not just let them find a new person and vet that person yourself?



  • Registered Users Posts: 5,617 ✭✭✭ Claw Hammer


    I don't see why you didn't approve of an assignment to a new tenant of the old tenants interest in the property. That is not the same as assigning part of the property. Your permission is needed for a sub-lease. You are being very awkward about a straight-forward matter and could well end up being left short of rent as a result.



  • Registered Users Posts: 1,279 ✭✭✭ mrslancaster


    I think this was asked on another thread but cant find it now.

    How can a tenant just move in another person and say they are a licensee? Does anyone know how a licensee is designated? Is it someone who stays full time in the property, part-time, pays rent, contributes to bills only? I cant find that information anywhere.



  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    Just the same as anyone can invite someone into their home.



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  • Registered Users Posts: 25 themoone


    ClawHammer, the vacating tenant never asked to assign/sublet he did not inform me he was moving out I am not even sure he has removed all his belongings. The other tenants just said so and provided a name as replacement. I think they knew that to assign/sublet they must all move out as you can not subdevide the lease. Both RTB and Threshold confirm that that is the case. With hebrid working they could be alternating use of the room and as such over crowding.

    We had a three bedroom on top of them that fell vacant and one of them approched me for his sister but none of them asked for them not sure why but def would have sorted it out in a good way. During that viewing for the 3 bedroom we had a number of enquiries asking if one of the rooms can have alternating occupents. So it seems this is something that going around.

    Post edited by themoone on


  • Registered Users Posts: 25 themoone


    Mrslancaster it is the law article 50 of the RTA. GGTrek talked about this in another thread and the problem with this is as long as the tenant provides you with a name then you have no say. The arrangement is between the licencee and the head tenant. No RTB reg. and any issues must be taken to court. In addition to the problem with insurance which requires landlords to provide detailed info. regarding the tenants. Most landlord insurance covers require this since 2017 due to Grenfell Tower as they had no way of knowing the exact numbers of people staying there. A certain organisation is on one hand advising tenants to do so and on the other hand saying that they are lobbying against it!!.

    My query has been if the lease saying "To only use the residence only for the named tenant" is sufficient (lease was provided by the bar association and used by most solicitors in ireland).

    I also have seen a thread which I can't find now saying that if the last person on the lease vacates then those not named on the lease must do so as well. Can anyone direct me about this.

    Post edited by themoone on


  • Registered Users Posts: 21,759 ✭✭✭✭ ted1


    where a tenant has a licensee, the licensee can ask the landlord that he become a tenant. the landlord doesn't have much of a choice but to accept this


    part7: Residential Tenancies Act 2004, Section 50 (irishstatutebook.ie)



  • Registered Users Posts: 25 themoone


    Ted1, thanks for that I am aware but my queries were:

    • Can they have a licencee/lodger when it states that "only for the named tenant"?
    • How can this be handled with updating tenancy with the RTB or do landlords not bother with that?
    • Also increased insurance premiums
    • If the remaining tenants vacate over the years does this licencee/sublet have to leave with the last remaining tenant of the lease. I have read this on the board but not sure, so can you direct me to this?




  • Registered Users Posts: 21,759 ✭✭✭✭ ted1



    #4. No, the licencee doesn’t have to leave as he can ask to be a tenant. If he doesn’t then he will leave.



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  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    I think the wider context of the l quotation from earlier was "used as a residence only for the named tenant" I would read this as excluding commercial or business use not as restricting the property to single occupancy.

    The fact that there is a joint (and several) tenancy would support the interpretation that the property is not restricted to single occupancy.

    I would expect the tenant to be allowed to enjoy peaceful and exclusive occupation of the dwelling as anyone would their own home, including a partner moving in with them, having guests, having a licencee or licencees and availing of the rent a room scheme if the property is suitably sized, etc...

    Post edited by FishOnABike on


  • Registered Users Posts: 1,279 ✭✭✭ mrslancaster


    Absolutely agree that anyone can invite guests into their home. I'm just trying to understand what exactly is a licensee in the case of a rented property. Is it someone who is living there full time/ part time or pays rent/ contributes to bills or are there other ways someone can be called a licensee so that they can ask the landlord to become a tenant with full rights and protections.

    If a tenancy agreement expressly prohibits anyone else living in a property except the people named on the agreement as in the OP, is it a breach to take in a licensee which could result in a termination notice? Its no good for a tenant if they think something is ok then they get a notice to quit through the door.

    The RTB website has no information about licensees because they don't deal with them.



  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    If a tenancy agreement expressly prohibits anyone else living in a property except the people named on the agreement.

    I think it would be wise to get legal advice on the validity / enforcability of such a clause. It could be seen as being incompatible with the tenants right to enjoy peaceful and exclusive occupation of the dwelling or even their constitutional rights to family life and privacy. Has there been any legal precedent on this?



  • Registered Users Posts: 25 themoone


    Just to clarify, I had been communicating for a whole month with the tenants and was not given any info. actually by law they are supposed to provide a notice when moving out to tell you we will get back to you by the end of the week and then tell you someone is moving out in a few days time is also illegal especially as I have only a name of a person. Also I am not sure if that person actually left.

    Also what if that licencee decides to do something illigal in the property. I know a neighbour that rented a house someone got somebody to replace them that started drug dealing and she had the police at her door in the middle of the night she was at home with two young children husband away on business.

    Also to clarify, they are four indiviuals no family ... etc.

    The other point I am making is that increases insurance as this person is not vetted by me nor am I allowed to do so I bring up with Insurance company and get different quotes and if it is significant increase as I suspect I will be. It is odd that they were advised to do so by an organisation that is also lobbying against it!!.

    Also there was a a suprior 3 bedroom on top of them with the same price tag at that time and were aware of it but did not approach me for them but a sibling of one.



  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    I would think the tenants named on the lease remain responsible for the rent being paid in full and on time. If they are leaving / have left it is in their interest to provide proper notice and have their names removed from the tenancy agreement.

    Provided the rent is paid in full and on time it is immeterial which of the joint and several tenants is paying it.

    If you trust the named tenants surely you should implicitly trust their judgement on who they choose to share or invite into their home as a partner, guest, licencee or whatever.

    Provided the rent is being received in full and on time and any legal conditions in the tenancy agreement are being observed there shouldn't be a problem.

    In renting a property the owner has to ceede some control over the property to their tenant(s), it's part and parcel of being in the property rental business.



  • Registered Users Posts: 25 themoone


    FishOnABike, thanks for your input.

    Sorry maybe I did not make my point clear I am querying the following points:

    • RTB registraion update of tenancy. Or do landlords not provide the RTB with the Update Tenancy form?
    • What are the insurance implicatons, I am reading significant increase but dont have actual figures. Would I be able to pass it on to the tenant?
    • Second I read somewhere on the board a while ago but can not find it. If the last named person on the original lease vacates do the others have to leave? Can anyone confirm this and if so point me to the legistlation.


  • Registered Users Posts: 5,617 ✭✭✭ Claw Hammer


    They do not have to move out. A departing tenant can assign his interest in the contract to someone else with your consent and the consent of the continuing tenants. There is no need for anyone other than the departing tenant to move out.



  • Registered Users Posts: 25 themoone


    ClawHammar,

    Thanks for your input. He is ignoring our communication so I doubt that is an option. At this stage I have accepted that he is not going to cooperate he did not even bother to inform me he was moving out.

    So that leaves me with the follwoign queries:

    • RTB Update of Tenancy do I inform them he has vacated and what about the replacement box. This person is not tenant and I dont have the relevant info either.
    • What are the insurance implicatons, I am reading significant increase but dont have actual figures. Would I be able to pass it on to the tenant?
    • Second I read somewhere on the board a while ago but can not find it. If the last named person on the original lease vacates do the others have to leave? Can anyone confirm this and if so point me to the legistlation.




  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    From what I have been able to work out from RTB and Threshold websites part of a lease cannot be assigned.

    Ideally what should happen is that the current tenants (all four) should ask to have the lease assigned so the departing tenant can be removed and a new lease drawn up to reflect the new tenancy situation.

    This could be assigning the lease to the three remaining tenants (who could then take in a licencee to replace the departed tenant, or equally leave the room empty and make up the difference in rental contribution, it's up to them).

    Equally it could be assigning the lease to the three remaining tenants plus a fourth replacement tenant for the departing one.

    I can't see how it is not in the departing tenant's interest to not cooperate with this as so long as they remain on the lease they are jointly and severally liable for any rent and for the property. If the tenants are of a legal background they should appreciate this.

    The difference between the two scenarios is largely academic because if three tenants take in a licencee, that licencee can ask to be added to the part four tenancy after six months.

    As a landlord I would not want a 'ghost' tenant on a lease as it would complicate future tenancy changes if a tenant named on the lease were not available or contactable at some point in the future to facilitate assigning a lease to a new set of tenants.



  • Registered Users Posts: 1,279 ✭✭✭ mrslancaster


    Is this a way the landlord could manage a houseshare with changing tenants:

    • continue the existing part4 agreement
    • remove the departing tenant name/s from the RTB register
    • add any replacement names (licensees) to the register after six months as named tenants for the remainder of the part4 term

    If the remaining original tenants do not bring in a replacement, they are liable for the full rent as the part4 agreement is still in existence.

    All the tenants are on the same part4 agreement term/dates no matter when they are actually added to the RTB register.

    Thanks for the info.

    Post edited by mrslancaster on


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  • Registered Users Posts: 3,454 ✭✭✭ FishOnABike


    Assigning the lease would require the agreement of both the existing named tenants on the lease and the named tenants the lease is assigned to.

    The part four status of tenants who are named on both leases would be unchanged.

    You may want to get advice on whether the new lease might constitute a rent review to avoid potentially tieing your hands for a period before a rent review could be issued.

    RTB details should be updated once the new tenancy agreement is signed.

    Tenants should inform landlord of any licencee.

    Landlord should update RTB records with licencee details once notified by tenants.

    The licencee doesn't automatically become a tenant after six months, they have to request to be added as a tenant but they cannot be unreasonably refused.

    If the licencee is added as a tenant the landlord should update the RTB records.

    AFAIK know each tenant's part four status is determined individually so different tenants may be at different stages of their part four tenancy cycle depending on when their individual tenancy began.



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