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incorrect property law advice in Irish times today. (I think!)

Fian

https://www.irishtimes.com/property/residential/2023/05/04/im-subletting-a-room-in-an-apartment-do-i-have-any-tenant-rights/

Concerns a licencee sub-letting in an appartment, from the tenant.

" in their wisdom, the legislators decided a tenant could move in and immediately gain rights as a tenant in the property even though the landlord/agent are then unaware of their presence. The reality of the situation is that you are entitled to be registered with the RTB and to have the maintenance issues dealt with either by the landlord or through mediation/adjudication with the RTB."

If this is correct I am entirely unaware of the change and as far as I am aware you cannot become a tenant without the landlord being aware of your existence.

Have I missed something or is the article just incorrect? Hopefully the person who wrote in don't find themselves in hot water if they contact the landlord assuming they can become tenants and be added to the lease.

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L1011

I was under the belief that a sub-tenant could ask to be added to the lease, after a period of time, and only if they were there with the knowledge and consent of the landlord to begin with; and that nothing had changed in that regard. The vague citation in the article means nothing so it doesn't help

Del2005

https://www.boards.ie/discussion/comment/120555105#Comment_120555105

A subtenant can be added to the lease as soon as they move in as the requirement is for a Part 4 tenancy to exist and licencees can't get part 4 tenancies. The only issue is that the landlord should know they are resident in the property, but the RTB doesn't mind tenants not following the rules as it's only landlords that are bad.

(7) A person who is lawfully in occupation of the dwelling concerned as a licensee of the tenant or the multiple tenants, as the case may be, during the subsistence of a Part 4 tenancy may request the landlord of the dwelling to allow him or her to become a tenant of the dwelling.

https://www.irishstatutebook.ie/eli/2004/act/27/section/50/enacted/en/html#:~:text=(7)%20A%20person%20who%20is,a%20tenant%20of%20the%20dwelling.

amacca

https://www.boards.ie/discussion/comment/120555768#Comment_120555768

I'm still not sure I understand...

Does this mean a tenant with part 4 tenancy can enter into an agreement to sublet or a licensee agreement with persons or a person the landlord does not know and then these persons or person can request that they are lawfully recognised as a tenant also

My initial answer to such a request would be hell to the **** no! But does that genuinely mean a landlord would be legally obliged to say yes? .... if it does.......another batshit mental rule.

DFB-D

https://www.boards.ie/discussion/comment/120556435#Comment_120556435

Unfortunately yes regarding licences (not the sublet part).

One of the pitfalls of being a landlord is that you lose the control of who lives on the property once the tenancy is unbroken.

dontmindme

https://www.boards.ie/discussion/comment/120556773#Comment_120556773

How do you? You can refuse to allow your tenant to sub-let.

DFB-D

https://www.boards.ie/discussion/comment/120556823#Comment_120556823

The tenant cannot sublet or assign (I.e. Lease) as per legislation but they can take on a licence (not a lease) without the LLs permission.

themoone

As mentioned the information is incorrect. Not sure where the person responding to the query in the IT got his info from " in their wisdom, the legislators decided a tenant could move in and immediately gain rights as a tenant in the property even though the landlord/agent are then unaware of their presence. The reality of the situation is that you are entitled to be registered with the RTB and to have the maintenance issues dealt with either by the landlord or through mediation/adjudication with the RTB."

As @Del2005 mentioned an assignee can be added to the lease as soon as they move in and they should be registered with the RTB. However, I think that subtenants and Licenees can only be added after 6 months. Also as @Del2005 mentioned the landlord should know they are residents in the property as it clearly states "lawfully". In this case, it is not "lawfully" and the landlord can request the head tenant to remove them as they are trespassing.

Unfortunately, this is all too common and carries serious concerns for the Landlord as they do not know who resides in their property and may invalidate their insurance policy.

Del2005

https://www.boards.ie/discussion/comment/120559839#Comment_120559839

However, I think that subtenants and Licenees can only be added after 6 months.

The legislation says that Part 4 tenancy has to be in place for a licencee to be added to the lease, how can someone who has no rights gain a Part 4 tenancy? There's no mention of 6 months in the legislation just that it has to be a Part 4 tenancy, the only way to gain Part 4 tenancy rights is by being a tenant. It's based on the time of the original tenancy not the time the person moved in.

dennyk

It's a little complicated, but basically:

There is nothing in the law that requires a tenant to obtain the landlord's permission to take in a licensee in the property they are renting. They are only required by law to provide the name of their licensee to the landlord, but the law does not give the landlord the right to deny permission or to kick out the licensee. The main tenant is responsible for the licensee's actions, however, so if the licensee breaches the lease (e.g. by engaging in anti-social behaviour, bringing in pets when the tenancy agreement prohibits it, damaging the property, etc.), the main tenancy could be terminated if those breaches aren't corrected
If the tenant takes in a licensee, that licensee can request to become a tenant if the existing tenant has a Part 4 tenancy, and the landlord cannot unreasonably refuse the request. Importantly, the main tenant also has no say in the matter; they cannot veto such a request. (Note, however, that the licensee will not have Part 4 protections until they've been living in the property for six months in total as both a licensee and a tenant, however, so the landlord could immediately terminate the former licensee's tenancy with the usual notice without needing a reason and thus boot them out if they haven't been there six months yet...)
The law also does not entitle tenants to take in licensees, however, so a landlord can prohibit licensees in the tenancy agreement. One caveat, however: many people, including landlords, confuse taking in a licensee with "subletting", which is actually a term defined in law that means something else entirely (basically, it refers to the original tenant vacating the property themselves and renting the entire property to a subtenant). If a tenancy agreement prohibits subletting specifically, that does not prohibit the tenant from taking in a licensee. Some landlords might think that a clause prohibiting subletting is sufficient and might get a nasty surprise when their tenant moves a licensee in and it turns out they are not in breach of the tenancy agreement after all...

Now, the article is not correct on a couple points, in that (a) a licensee can't technically move in without the landlord's knowledge, as the law requires the tenant to inform the landlord of the names of anyone living in the property, and (b) while a licensee can immediately request to become a tenant if the main tenant has Part 4 rights, they will not acquire Part 4 rights themselves until they've been there for six months. Now, the caveat with the former is that while not informing the landlord of the name of a licensee would be a breach of tenant obligations, the landlord has to give the tenant the chance to correct the breach, so if a tenant moves in a licensee without telling the landlord and the landlord finds out, all the tenant has to do is give the landlord the licensee's name at that point and the breach is corrected and the tenancy can't be terminated. The caveat with the latter point is that the licensee can remain in the property as a licensee for six months (whether the landlord likes it or not, since the landlord has no power to kick them out) and then request to become a tenant, at which point they will immediately acquire Part 4 rights.

That said, the gist of the article's assertion is true enough; if a landlord has been foolish enough not to explicitly prohibit licensees (not just subletting) in their tenancy agreement, then their tenant can in fact move someone into the property without needing the landlord's permission and that other person can later become a full tenant with Part 4 rights after they've been living in the property for six months, and there is absolutely nothing the landlord can legally do to prevent it.

DownByTheGarden

So under no circumstances should a landlord allow a tenant or a licensee to bring anyone else (tenant or licensee) into the property.

elperello

https://www.boards.ie/discussion/comment/120566588#Comment_120566588

Yes and include a clause in the lease agreement to that effect.

DFB-D

https://www.boards.ie/discussion/comment/120566437#Comment_120566437

Factual enough, but there a couple of mistakes:

1. No 6 months requirement for part 4 rights of the tenancy they are joining have part 4 rights already. Part 4 rights & tenancy are shared, so the landlord couldn't remove a single tenant.

2. Leases are complicated enough & RTA added to the complexity. I had legal advice on this and was told not to include terms trying to prevent licences. There is 0 qualified legal sources as far as I could find that suggests a landlord can exercise this level of control over a tenancy. Not something a LL should be trying to enforce without legal advice.

You can imagine the headache of this anyway, a lot of leases are to families, in which case you have one person on the lease or maybe two, but not the children, etc.

mrslancaster

https://www.boards.ie/discussion/comment/120567586#Comment_120567586

That's not what the RTB told me. They said that nobody gains part4 rights until they have 6 months occupation. The rights are granted to the individual, not to the dwelling.

Even if someone is being added onto an existing part4 tenancy that individual needs 6 months to acquire their own tenancy protection.

Say three people sign a lease, after 12 months one leaves. A new replacement tenant moves in. The part4 rights of the existing tenants or the one thats leaving are not transferred to the new occupant who must get their own, even if a lease is in existence for years.

Say a single or multiple occupants sign a lease and after 12 months they bring in a licensee eg a BF/GF. They are obliged to inform the landlord or they are in breach of their tenancy obligations. That individual does not have automatic part4 rights just because the lease of the dwelling has been in place for a year.

RTB agent said only a tenant is entitled to the occupation of a dwelling under a tenancy and before six months, a landlord can tell any occupant to leave for any or no reason even if other occupants or co-tenants have part 4 rights.

Edit: RTB agent said landlords are entitled to know who is living in their property and recommend periodic inspections. The RTB agent also said any sub-tenancy for part of a dwelling with a part4 tenancy is prohibited and would be void.

DFB-D

https://www.boards.ie/discussion/comment/120568297#Comment_120568297

Sorry no, that is not true.

Each tenant does not have their own tenancy, it is shared except where there are multiple units. So if the licensee requests to become a tenant on day 1, they also gain part4 protections if the tenancy of the unit has that already.

And no, a landlord cannot tell a singular person on the lease to leave. That is true even in the first 6 months of the tenancy, we only have the option to terminate the tenancy. Honestly, where has that come from?

DownByTheGarden

I dont know how, even with inspection you are going to know if an extra person is living there.

Its a bit stupid that a person you never heard of all of a sudden after 6 months of hiding out in your house and being out when you go to inspect now effectively has more rights than the landlord in that house. Like a super squatter :)

RichardAnd

"Incorrect" and "Irish Times" should be synonymous at this point.

mrslancaster

https://www.boards.ie/discussion/comment/120568339#Comment_120568339

Apologies for the long post. It sounded easy to understand when the RTB agent went through it, sorry I'm not explaining what he said more clearly.

The agent explained it this way: the tenancy/lease starts on day one. Say three tenants sign the lease on day one. Those three named persons are entitled to occupation of the dwelling as tenants. Those three gain part4 rights after 6 months. If one leaves at a later date the remaining two are still liable for the entire rent. The tenancy/lease still exists just the named tenants has changed from three to two.

The landlord might agree to a replacement or might not, he still has a legal right to the full rent. The remaining two tenants have to cover the full rent. If the landlord agrees to a replacement, that name is put on the rtb registered tenancy. If the landlord doesnt agree that could be seen as unreasonable so the tenants can usually find a replacement.

In that situation when the new person is put on the RTB register, they are a named tenant on the existing tenancy/lease, have rights of occupancy and gain part4 rights after 6 months. All the lease terms regarding rent review dates and notice periods are based on the date the tenancy/lease started and apply to the replacement tenant in the same way as the original two.

The other scenario is where the original two tenants bring in a licensee to contribute to the rent. That person is not a tenant and has no rights of occupation. They can request to be put on the lease and if the landlord agrees and they are named on the rtb registered tenancy/lease, they gain part4 rights after 6 months as a named tenant. They are covered by all the terms of the existing lease so would be the same as the original tenants in respect of liability for the full rent, rent reviews, notice periods, etc.

If the person is not added to the registered tenancy/lease they are licensees of the original named tenants but have no tenancy rights and can be asked by the named tenants to vacate at any time.

The way I understood it is that the tenancy/lease agreement start date plus all terms & conditions doesnt change but the registered names might change but only if the landlord agrees to it.

The other scenario he mentioned was where the three original registered named tenants are still in occupation and introduce an extra occupant to the dwelling. They are a guest or licensee of the named tenants and any request to add that person to the registered tenancy can be refused, ie, the tenancy was for three people and the three named tenants hasn't changed. It is at the landlords discretion if he agrees to add an extra person to the lease but he must consider the bed spaces, facilities etc.

It is still a shared/joint tenancy but each tenant acquires their own protections after they are 6 months as named tenants.

I may have got this wrong and I've also read on boards that the RTB can sometimes give wrong information but it seemed clear enough at the time.

mrslancaster

This question of licencees has been on boards before, I'm not a landlord and only checked with the rtb for my nephew who was in a shared lease and one of the co-tenants moved a GF in and said the gf was a licensee and wanted to be put on the lease. The other co-tenants were not happy.

It would be helpful if there was definitive information on the rtb website.

DFB-D

No problem, lots of people including the RTB admin staff get confused. I am an accountant and deal with legislation constantly and still needed someone to explain it to me.

No separate Part 4 tenancy to arise in multiple tenant's favour.

53.—The conferral of the benefit of the protections under this Part on a person referred to in section 50(2) or (3) shall not be read as operating to bring into existence a separate Part 4 tenancy in his or her favour as respects the dwelling concerned.

(8) The landlord may not unreasonably refuse to accede to such a request; if the request is acceded to—

(a)...

(b) the requester shall hold the dwelling—

(i)..... ,

(ii) upon (if such be the case) subsection (3) being satisfied in respect of the requester, subject to the same rights, restrictions and obligations as those subject to which the multiple tenant whose continuous occupation gave rise to the Part 4 tenancy’s existence holds the dwelling.

Where a licencee is accepted as a tenant where part 4 is in existence, see above.

Where licencee is accepted as a tenant and part 4 is not yet obtained, 6 months from date of start of lawful occupation or if another tenant reaches that point first - see s53.

For additional licences above named persons, there is a right of termination for overcrowding, which may or may not be relevant.

mrslancaster

https://www.boards.ie/discussion/comment/120570421#Comment_120570421

Thanks for that.

So what I understood from the agent agrees - it is still the existing tenancy/lease agreement, not a separate one, it's just that the tenant names may change.

Basically, a landlord cannot unreasonably refuse to put a replacement person on the lease as a named tenant.

A replacement tenant can be either 1) a person who is put on the registered lease immediately by the landlord, or 2) a person who is first a licensee and who requests to be accepted as a tenant and the landlord agrees to it. That replacement person is bound by all the T's & C's of the original tenancy/lease.

I understand that the tenancy becomes a part4 tenancy after 6 months occupation by the registered tenants provided that no NoT has been issued and if one party to the shared/joint tenancy leaves, that doesn't change, it is still a part4 tenancy.

The bit I'm unclear about is the 6 months occupancy. I understood from the RTB agent that any replacement tenant on that lease gains their part4 rights after 6 months occupancy and those rights are not transferable from a departing tenant to their replacement. Is that incorrect?

Also, there is a view held by many that a licensee who is an extra person in the dwelling above and beyond the named tenant/s can move in, request that the landlord adds them to the lease and that the landlord can't refuse. That does not seem to marry with what the RTB agent told me. He said the landlord has discretion here and can decide who can live in their property and does not have to agree as the existing tenancy/lease is still in existence with the original tenants. Did I understand that incorrectly?

mrslancaster

https://www.boards.ie/discussion/comment/120558627#Comment_120558627

Can a landlord not include a term in the tenancy/lease agreement to limit the number of occupants in the property, eg. the max number of persons that can reside in the apartment is X ?

DownByTheGarden

https://www.boards.ie/discussion/comment/120573032#Comment_120573032

Surely the landlord should be able to do that. Also they should be able to say in the lease that before anyone becomes a licensee or a tenant that the landlord must be informed first and can have them move out.

But you just never know in Ireland what way the state are talking your property rights from you.

DFB-D

Replacements have no bearing on this. It is simply licencee.

Putting a limit in a lease will be subject to the RTB (in case of dispute) accepting the limit is the limit at which overcrowding occurs I suppose, but I haven't had any particular legal advice on this!

I doubt discretion is allowed if the legislation mentions that a good reason is required, you can be sure what we consider to be good will probably be different to the application in a dispute..

You need to be careful relying on information given, the RTB admin staff know a lot probably but not enough to advise professionally.

The law society have a lease template for sale, it is probably best to use that if you don't want to pay a solicitor and pay for a solicitor for additional terms/changes.