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Just realised my Tenancy is actually a Licence....

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  • 06-05-2019 3:08pm
    #1
    flexcon
    Registered Users Posts: 1,621 ✭✭✭


    So I checked on the boards here and couldn't find a similar thread.

    Our flatmate has a family member who is a barrister and they spotted something on our contract that sort of took us by surprise.

    We are in this private rented house since 2017 on a two year contract. however, she spotted that it is in fact a licence to enter property and NOT a tenancy.

    Does anyone have advice on this? Is this normal and should we be concerned.
    From my limited reading on this through citizen info - it mentions landlords should not do this, and it is a cheeky way to navigate around the Tenancy acts.

    The barrister does not deal in this area so was only giving general advice.

    Any input at all helps - We are being told the landlord wants the house back soon so his "wife" can move in. Looking to see where we might stand

    3 people in a share house all on the same contract. Never missed any payments and its been a perfect two years. We are not having heated discussions with landlord etc at this time.


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    #2
    Del2005
    Registered Users Posts: 18,942 ✭✭✭✭Del2005


    Are any of the owners relatives living there? If not your barrister needs to go back to school. You can't sign away your rights and once no relative of the owner is living there you are tenant's and since you are there 2 years you are Part 4 tenants now.


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    #3
    Samuel T. Cogley
    Registered Users Posts: 10,684 ✭✭✭✭Samuel T. Cogley


    The actual situation will be looked at rather than what is written on the tenancy agreement however there are a couple of issues here.

    (i) There may be an argument that there is no exclusive occupation potentially giving the LL an argument that there is merely a licensee agreement in play.

    (ii) Assuming a Part IV is in play notwithstanding the above, a relative needing the property is grounds for terminating a Part IV.


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    #4
    flexcon
    Registered Users Posts: 1,621 ✭✭✭flexcon


    Del2005 wrote: »
    Are any of the owners relatives living there? If not your barrister needs to go back to school. You can't sign away your rights and once no relative of the owner is living there you are tenant's and since you are there 2 years you are Part 4 tenants now.

    So the barrister friend only saw the contract yesterday.

    No relatives living there. We are all here nearly two years, personally I am here 2 years and 6 months.

    The reason why the advice to get legal advice is according to RTB - they can't do anything as its ambiguous. The landlord does not have to accept my request to become a tenant.I have asked to become a tenant last night and thats why the issue won the "wife" might be moving in the next few months.

    You couldn't make this up honestly.

    Maybe just reassurance that by common logic, I had some safety here?

    Thanks for the quick reply.


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    #5
    awec
    Administrators Posts: 53,509 Admin ✭✭✭✭✭awec


    Unless it's owner occupied you're a tenant, no matter what fancy wording the landlord tries to use in his lease. You don't need to ask to become a tenant, you are one.

    If he wants his wife in he owes you 56 days notice.


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    #6
    thomasjad
    Registered Users Posts: 342 ✭✭thomasjad


    Can you link me to the law that says this?

    Could it be argued in that case that you take a lease out when staying in a hotel if the owner doesn't occupy it?


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    #7
    3DataModem
    Registered Users Posts: 3,963 ✭✭✭3DataModem


    thomasjad wrote: »
    Can you link me to the law that says this?

    Could it be argued in that case that you take a lease out when staying in a hotel if the owner doesn't occupy it?

    No. It is not a dwelling. In the same way the manager of a shop cannot claim they are a resident of their premises. Our laws (mostly) cover this stuff, including hotels.


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    #8
    thomasjad
    Registered Users Posts: 342 ✭✭thomasjad


    Could someone link me to the law where it says that a license is only a license if it's owner occupied? If there's a lease in one persons name and they license it out to others surely they can't turn around a claim the lease as their own?


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    #9
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    thomasjad wrote: »
    Could someone link me to the law where it says that a license is only a license if it's owner occupied? If there's a lease in one persons name and they license it out to others surely they can't turn around a claim the lease as their own?

    Probably more useful to you:

    https://www.flac.ie/download/pdf/landlord_and_tenant2016.pdf

    Otherwise read the RTA 2004 - exemptions from the act.


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    #10
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    thomasjad wrote: »
    Could someone link me to the law where it says that a license is only a license if it's owner occupied? If there's a lease in one persons name and they license it out to others surely they can't turn around a claim the lease as their own?

    There is no law that says any such thing. Look at this case. Building was not owner occupied but it was held to be a licence.

    https://www.rtb.ie/documents/TR0914-000847/TR0914-000847-DR0414-11559%20Report.pdf


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    #11
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    4ensic15 wrote: »
    There is no law that says any such thing. Look at this case. Building was not owner occupied but it was held to be a licence.

    https://www.rtb.ie/documents/TR0914-000847/TR0914-000847-DR0414-11559%20Report.pdf

    Building itself was actually owner occupied: security staff, receptionists, etc.

    But in any case, this type of rental differs vastly from what the OP is referring to, a dwelling.


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    #12
    Marcusm
    Registered Users Posts: 10,227 ✭✭✭✭Marcusm


    thomasjad wrote: »
    Can you link me to the law that says this?

    Could it be argued in that case that you take a lease out when staying in a hotel if the owner doesn't occupy it?

    For a hotel or similar, you are entitled only to accommodation rather than any particular room. The hotel will be permitted to require you to move rooms at their option. One of the most significant or essential distinctions between a lease and a licence is the entitlement tovexckusively occupy the particular property (land, building, room whatever) to the exclusion of anyone else.


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    #13
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    davindub wrote: »
    Building itself was actually owner occupied: security staff, receptionists, etc.

    But in any case, this type of rental differs vastly from what the OP is referring to, a dwelling.

    The owner is a company so it can't reside in the dwelling. The case shows the RTB process. The more different he is from the building in that case, the more likely he is to succeed in claiming a tenancy.


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    #14
    flexcon
    Registered Users Posts: 1,621 ✭✭✭flexcon


    Contacted threshold and had a face to face meeting

    Basically told i have no protection here.

    Even though i am there two years and half on a licence i do not have any rights. I actually showed some of the posts here to the chap and he said they are honestly wrong. He saw my “contract” and sighed.

    It’s common and so far they haven’t had any luck in the courts siding with the supposed tenant, especially since the landlord has already verbally mentioned the house will be needed for his “wife”

    So yeah... i may end up moving now.

    Thanks for the replies - I appreciate the discussion!


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    #15
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    flexcon wrote: »
    Contacted threshold and had a face to face meeting

    Basically told i have no protection here.

    Even though i am there two years and half on a licence i do not have any rights. I actually showed some of the posts here to the chap and he said they are honestly wrong. He saw my “contract” and sighed.

    It’s common and so far they haven’t had any luck in the courts siding with the supposed tenant, especially since the landlord has already verbally mentioned the house will be needed for his “wife”

    So yeah... i may end up moving now.

    Thanks for the replies - I appreciate the discussion!

    Really bizarre, what were the terms/ situation that he thinks constituted license and what situation was common?

    The bolded part makes no sense to a license agreement, only to a tenancy and if so the notice cannot be verbal, it must be a written notice with the required notice and accompanied by a statutory declaration.


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    #16
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    flexcon wrote: »
    Contacted threshold and had a face to face meeting

    Basically told i have no protection here.

    Even though i am there two years and half on a licence i do not have any rights. I actually showed some of the posts here to the chap and he said they are honestly wrong. He saw my “contract” and sighed.

    It’s common and so far they haven’t had any luck in the courts siding with the supposed tenant, especially since the landlord has already verbally mentioned the house will be needed for his “wife”

    So yeah... i may end up moving now.

    Thanks for the replies - I appreciate the discussion!

    That is just bullcrap. Tenancy situations are tested in the RTB, not the courts.
    Licenceees have rights under the RTA. Did he mention Section 50 of the Act?
    Between this no-nothing barrister and alleged Threshold "chap", you seem to have an agenda.


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    #17
    BrokenArrows
    Registered Users Posts: 7,500 ✭✭✭BrokenArrows


    Tenant or licensee is irrelevant in your situation.

    The landlord said he wants the property for a relative, so it doesnt matter. In either case you are required to move out.


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    #18
    awec
    Administrators Posts: 53,509 Admin ✭✭✭✭✭awec


    flexcon wrote: »
    Contacted threshold and had a face to face meeting

    Basically told i have no protection here.

    Even though i am there two years and half on a licence i do not have any rights. I actually showed some of the posts here to the chap and he said they are honestly wrong. He saw my “contract” and sighed.

    It’s common and so far they haven’t had any luck in the courts siding with the supposed tenant, especially since the landlord has already verbally mentioned the house will be needed for his “wife”

    So yeah... i may end up moving now.

    Thanks for the replies - I appreciate the discussion!

    Do you live with your landlord?

    You’ll have to move out regardless, but unless you live with your landlord you are a tenant. You cannot sign away your rights, what your landlord calls you on his lease is of no consequence.


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    #19
    OldMrBrennan83
    Closed Accounts Posts: 26,658 ✭✭✭✭OldMrBrennan83


    BrokenArrows wrote: »
    Tenant or licensee is irrelevant in your situation.

    The landlord said he wants the property for a relative, so it doesnt matter. In either case you are required to move out.

    It matters quite a bit around timeframes.


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    #20
    Cuddlesworth
    Registered Users Posts: 13,983 ✭✭✭✭Cuddlesworth


    awec wrote: »
    Unless it's owner occupied you're a tenant, no matter what fancy wording the landlord tries to use in his lease. You don't need to ask to become a tenant, you are one.

    If he wants his wife in he owes you 56 days notice.
    thomasjad wrote: »
    Can you link me to the law that says this?

    Could it be argued in that case that you take a lease out when staying in a hotel if the owner doesn't occupy it?
    awec wrote: »
    Do you live with your landlord?

    You’ll have to move out regardless, but unless you live with your landlord you are a tenant. You cannot sign away your rights, what your landlord calls you on his lease is of no consequence.

    Tenancy is defined by exclusive use in law currently. If you can show you have exclusive use, then you have a tenancy. The reason why living in a owner occupiers house is so clear cut is because you have no exclusive use to anything in the house, they can walk into your room at any time, you don't get a choice who stays there etc. Same with hotels, some student digs, B&B's etc.

    If the OP has any proof that while renting the room, the room or property was his and the landlord was not allowed into it, its exclusive use. If cleaners waltz'd in and out, other tenants came and went with no say, if he was even given a form that specifically stated he was a licensee in conjunction with the fact he had no exclusive use while he stayed there, the RTB under its own guidelines would deem him a licensee.

    Its worth pointing out, if the landlord gave you written notice of eviction under tenancy law or you have some other proof of it, it would probably get you a RTB win for a tenancy case.


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    #21
    thomasjad
    Registered Users Posts: 342 ✭✭thomasjad


    I agree with the above poster. It is judged on whether you have exclusive control over a property. Whether or not it's owner occupied isn't the legal definition.


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    #22
    flexcon
    Registered Users Posts: 1,621 ✭✭✭flexcon


    4ensic15 wrote: »
    That is just bullcrap. Tenancy situations are tested in the RTB, not the courts.
    Licenceees have rights under the RTA. Did he mention Section 50 of the Act?
    Between this no-nothing barrister and alleged Threshold "chap", you seem to have an agenda.

    What in god’s name...

    Agenda? I am totally new to this area and have no experience. Thanks for the passive aggression though. Really odd response to get I must say!!

    And to counter your RTB bull callout,,, I just called the RTB and they have no power, and directed me to their website...


    So whatever you seem to think you know maybe PM me privately - Il’l appreciate genuine help in explaining where exactly I am going wrong

    I don’t live with the landlord - I live with two others and it’s as normal situation as it gets

    Also no he didn’t mention that act.

    next you will be claiming we never met with threshold and this is all fake news....


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    #23
    Cuddlesworth
    Registered Users Posts: 13,983 ✭✭✭✭Cuddlesworth


    flexcon wrote: »
    What in god’s name...

    Agenda? I am totally new to this area and have no experience. Thanks for the passive aggression though. Really odd response to get I must say!!

    And to counter your RTB bull callout,,, I just called the RTB and they have no power, and directed me to their website...


    So whatever you seem to think you know maybe PM me privately - Il’l appreciate genuine help in explaining where exactly I am going wrong

    I don’t live with the landlord - I live with two others and it’s as normal situation as it gets

    Also no he didn’t mention that act.

    next you will be claiming we never met with threshold and this is all fake news....

    There have been a few threads here where he believes that renting rooms in a house is a tenancy and that the RTB will enforce it. Then states one case where a woman's landlord tried to pull a fast one and change her tenancy to a licensee situation, really badly on his part, and he lost.

    What he doesn't seem to get is most people in that situation get told no by the RTB and no resulting case ever comes up as its not the RTB's jurisdiction. A few do have a case against it but will never go down that path in reality.


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    #24
    davindub
    Registered Users Posts: 1,447 ✭✭✭davindub


    thomasjad wrote: »
    I agree with the above poster. It is judged on whether you have exclusive control over a property. Whether or not it's owner occupied isn't the legal definition.

    There is an exemption in the RTA from the RTA for this very reason. LL or a family member resides there.

    Exclusive occupation is a test used by the RTB, but it's not the only factor, nor is it contained in the act (legislation takes precedence over common law), so if the LL resides there, that exemption means exclusive control is n/a.


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    #25
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    flexcon wrote: »
    What in god’s name...

    Agenda? I am totally new to this area and have no experience. Thanks for the passive aggression though. Really odd response to get I must say!!

    And to counter your RTB bull callout,,, I just called the RTB and they have no power, and directed me to their website...


    So whatever you seem to think you know maybe PM me privately - Il’l appreciate genuine help in explaining where exactly I am going wrong

    I don’t live with the landlord - I live with two others and it’s as normal situation as it gets

    Also no he didn’t mention that act.

    next you will be claiming we never met with threshold and this is all fake news....

    Who do you think you are fooling? A barrister who tells you you have a licence and gives no further help. A meeting with Threshold within a short time of posting here who tells you what was posted here is wrong but no specifics given. Finally a phone call to the RTB which means you were talking to a junior civil servant who refers you to their website???
    For anyone to give the advice that you claim was given to you would involve making a detailed analysis of the situation, how the house was occupied, how you came to be resident in it and telling you exactly why the RTA is not applicable.


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    #26
    flexcon
    Registered Users Posts: 1,621 ✭✭✭flexcon


    4ensic15 wrote: »
    Who do you think you are fooling? A barrister who tells you you have a licence and gives no further help. A meeting with Threshold within a short time of posting here who tells you what was posted here is wrong but no specifics given. Finally a phone call to the RTB which means you were talking to a junior civil servant who refers you to their website???
    For anyone to give the advice that you claim was given to you would involve making a detailed analysis of the situation, how the house was occupied, how you came to be resident in it and telling you exactly why the RTA is not applicable.

    You’re so right. Thanks for dropping by. Close the thread sure. It was a good Jig while we had it

    Barrister does not have experience in this area. Barrister suggested to get legal advice from solicitor. I do not know the barrister, it was a friend of one of the guys in the house..

    I had already arranged a meeting with threshold before posting here. It’s one of the reasons i came on here since it’s often a place of discussion and learning.They pushed the consultation to the meeting wed morning at 10am due to the time sensitive nature of all of this

    I called the RTB and after 2 failed attempts i get speaking to a human being who basically did say to check out the resources on the website that unless i have a tenancy - they don’t get involved. Literal word for word quotation. I admit strange they they weren’t pushy for more details but ffs - they couldn’t even agree to get my deposit back i’d say.

    The only detailed meeting i ever had was with threshold. Not a barrister or on the phone to RTB. Both of those were suggesting to get proper legal advice.

    Look I don’t know - In your life so far you may have had a great nose for bull****. And it’s probably served you well. But here and now - it’s wrong. And i’d rather you didn’t participate on this thread anymore, i personally no longer want any advice from you going forward on this topic based on how cocky sure you have been to jump to an impossible
    conclusion that is just wrong.


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    #27
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    The "licence loophole" is a frequent topic in this forum. An agenda that is pushed by some posters. Your story is a carbon copy. I gave a link to a Tribunal report earlier in which it is stated:-

    "Where a licence agreement is claimed, not only the written form of the licence but the reality of how it is operated (or its substance) must also be examined and the Tribunal is satisfied that the reality as operated on the ground in this given case points clearly to a licence agreement and not a lease agreement."

    According to you nobody you spoke to referred to that decision. Threshold say (according to you) that they have been going to the courts rather than analyse situations in accordance with the principles in that decision. No way. Landlords are before the courts every week charged with failing to register tenancies.
    The licence defence does not work!


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    #28
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,208 Mod ✭✭✭✭godtabh


    awec wrote: »
    Unless it's owner occupied you're a tenant, no matter what fancy wording the landlord tries to use in his lease. You don't need to ask to become a tenant, you are one.

    If he wants his wife in he owes you 56 days notice.
    What if individually rooms are rented out and not the whole house?


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    #29
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    godtabh wrote: »
    What if individually rooms are rented out and not the whole house?

    There have been RTB decisions on this. In some cases they have said that collectively there is a tenancy, in others that there is not a tenancy. The deciding factor appears to be whether or not the complainant is the landlord as they almost invariably do against the landlord.
    See this thread
    https://www.boards.ie/vbulletin/showthread.php?p=74949623


    Also this Tribunal decision

    Zhang v. Holohan (17th January 2012, Reference No. TR168/2011/DR92/2011).
    https://www.rtb.ie/documents/TR168-2011/TR168-2011-DR92-2011Report.pdf


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    #30
    Cuddlesworth
    Registered Users Posts: 13,983 ✭✭✭✭Cuddlesworth


    4ensic15 wrote: »
    Also this Tribunal decision

    Zhang v. Holohan (17th January 2012, Reference No. TR168/2011/DR92/2011).
    https://www.rtb.ie/documents/TR168-2011/TR168-2011-DR92-2011Report.pdf

    In case anybody doesn't want to read it, the TLDR:

    Rented a room under the impression of it being a tenancy.
    Had proof of arrangement with landlord where she gave approval for other tenants when they applied to rent the other room.
    RTB acknowledge the exclusive use of the room and the non-exclusive use of the property.
    Landlord moved into the other room, claimed she was a licensee and illegally evicted her.
    Fine was damm cheap considering his actions.

    None of that proves 4ensic15's point but is great at proving mine.


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    #31
    flexcon
    Registered Users Posts: 1,621 ✭✭✭flexcon


    If it matters

    My license is not for my room. Its for the whole house, as all 3 of us are on the same licence.

    I'll ring PTB again later and see can I get someone else on the phone to explain a bit more and revert back.

    So far it seems common sense means I do have a part 4 as its clear the landlord is obviously circumnavigating the law when it comes to tenancy protection. But on paper, and of people in the know - they don't seem to be as clear or confident on resting with that conclusion or its not a forgone one at that.


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