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Landlord query

saggy

Hi all, I am new to this site so I am just looking for some clarification on this matter as I have asked RTB and they don’t seem to know , so any advice would be greatly appreciated.

I own a three bedroom house, there was two guys and a girl renting the rooms separately, all at different intervals and paying rent separately to myself.None of them ever had contracts The girl moved out last October so my son, who attends college nearby decided to live in the vacant room as it suited his needs perfectly and has been there since then.

I have now decided to sell the property and want to get it refurbished etc ready for sale. I would like to understand if the remaining two tenants are now considered licensees due to my son moving in with them , or if the tenancy status remains unchanged?

thanks in advance

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xyz13

The property ownership doesn't changed just because a family member moves in.

MrRigsby

They are licensees as they never rented the entire property. You can move them on no problem as in my opinion they aren’t considered tenants . The smart move to avoid any ambiguity would have been to hold back the smallest room all along and charge a bit more for the other 2 rooms to make up the majority of the shortfall

saggy

Hi guys , thanks for your reply, the RTB told me that they were tenants prior to my son moving in but they aren’t sure whether they are now licensees or still tenants, they said to me the only person who could decide this would be an adjudicator if it does go to a dispute. I think it’s strange that an adjudicator can decide this, that it’s up to them , is there no law that states this as to avoid a dispute?

I have told both guys that I intend to sell, one guy was ok with this but the other guy stated he won’t be going anywhere, I just need rid of this property as the mortgage repayments are too high.

MrRigsby

Personally I’d neatly pack his stuff , place it in safe storage, give him the key for the storage unit and change the locks on the house . Take before and after footage showing you didn’t damage anything. If the RTB can’t show you in black and white why he can legally stay then he has no case . Worst case scenario you’ll get a fine which will be nothing compared to the costs involved in a property you don’t want . If he tries to get in call the guards who will move him on unless he can prove he’s a legal tenant . I wouldn’t fancy your chances with some lefty do gooder adjudicator making it up as he goes along . People like that usually listen to whoever has the biggest sob story

[Deleted User]

https://www.boards.ie/discussion/comment/121924806#Comment_121924806

And don’t forget to leave aside up to €20k for the worst kind of wrongful eviction.

What is muddying the waters here is that the renters were tenants prior to your son moving in, and possibly became licensees afterwards. I suspect the RTB may view it as an attempt to deny existing tenants their tenancy rights by moving a family member in. I’m not saying that was your intention, but it is what it could be viewed as.

[Deleted User]

https://www.boards.ie/discussion/comment/121924725#Comment_121924725

What makes you think the tenants didn’t rent the entire property? Nothing in the op states they didn’t. Shared tenancies don’t have access to other tenants rooms, but do have access to common areas like kitchen/bathroom/living room/garden etc, so they can pay rent separately, but still have full use of the property.

MrRigsby

https://www.boards.ie/discussion/comment/121924816#Comment_121924816

“Up to” 20k . That applies to the worst cases where there is blatant disregard for a legit tenancy and you boot out a family with kids etc and leave their stuff in bin bags outside . One guy in one room with no tenancy documents, You approached RTB who couldn’t give you a firm answer and you were respectful of his property? I’d say a couple of grand worse case scenario and that’s probably one month’s mortgage so no big deal . More likely he’d get nothing at all in my opinion

saggy

I have asked the RTB by phone call and they did tell me that they are now licensees, but I wanted this in writing so I emailed them and they came back with the answer ‘they could be or could not be and best to get legal advice .

I don’t know where to get legal advice as I have asked some solicitors and they have no idea about it and they all redirect me back to the RTB

I don’t want this to go to a dispute and have to pay out a hefty fine for this guy that refuses to move. I am being fair to them and did say to them whenever you find a place it’s okay I don’t expect them to leave straight away, but this guy who refuses to leave obviously doesn’t want to because he’s paying half of the Rent that he would pay anywhere else and he knows this.

I think it’s ridiculous that I have to wait for an adjudicator to decide the law.

MrRigsby

https://www.boards.ie/discussion/comment/121924826#Comment_121924826

Read what OP stated . Rooms were rented SEPARATELY and at DIFFERENT INTERVALS . Rent was paid SEPARATELY. It’s fairly self explanatory

[Deleted User]

https://www.boards.ie/discussion/comment/121924840#Comment_121924840

https://www.boards.ie/discussion/comment/121924854#Comment_121924854

Firstly, tenancy contracts are not required to be written, though it is advisable to do so. The tenant attains tenancy rights irrespective of whether there is a written document.

If it was self explanatory, the RTB would have been able to give the op a clear answer, it isn’t though. And if it goes to adjudication, and the op took your completely wrong advice to remove belongings outside and change locks, then they may have to make big payouts to all tenants if the op is on the wrong side of the adjudication.

If the op is selling, this is a valid reason to end a tenancy, the op would be best advised to follow the path of least risk and resistance. Give valid notice.

Marcusm

https://www.boards.ie/discussion/comment/121924854#Comment_121924854

None of those are characteristics which would mean it was not a tenancy for RTB purposes. The fact that a close relative (recently more restrictive) of the landlord was living there is what gave rise to the change in status - use of the phrase “licensee” is inappropriate as it is the fact that the landlord’s son was living there which is relevant. A tenant can have exclusive occupation of a bed room and access (via licence or lease) to the other areas of the house and that is simply a tenancy.

OP, the rules should be on your side but if the person does not agree to leave then you will not get them out unwillingly without illegal force or a court order. Is the person looking for a financial inducement to leave? I suspect they are. While that might seem annoying, it might be the pragmatic way to get it resolved without uncertainty or unacceptable/uninown cost.

SteM

https://www.boards.ie/discussion/comment/121924854#Comment_121924854

If it's fairly self explanatory why have the RTB and solicitors (plural) refused to give this advice in writing to the OP? You can give your opinion all you want but at the end of the day that's all it is.

saggy

thanks one again for all your comments this is the reply that I received from RTB

’I wish to acknowledge receipt of your email and note the contents therein.

Thank you for your email.

If there were three tenants residing in the rental property originally then this would have been considered a tenancy under the Residential Tenancies Act.

If one of the tenants vacated and you moved your son into the property this could mean that the Act no longer applies.

The relevant exemption that may apply is as follows;

The RTB Remit does not extend to instances where a tenant lives with the spouse, civil partner, parent or child of the landlord and there is no written letting agreement in place.

However please note, where a landlord intends on changing the terms of the tenancy these terms should only be changed with the agreement of all tenants involved. By moving your son into the property, this could be considered a change to the terms of the tenancy as it may directly impact their tenancy rights under the Act and permission of the original tenants should be sought.

As an impartial body the RTB can provide you with information in line with the Residential Tenancies Act, however we cannot provide you with confirmation as to whether your situation does or does not fall within the RTB’s remit at this time. If it were to go to dispute an independent adjudicator would have the authority to make a determination on jurisdiction.

Alternatively you may want to seek legal advice in relation to your query.

saggy

No I don’t think this guy is looking for a financial inducement to leave, he is there awhile with low rent so it would be in his interest to stay as long as he can.

SharkMX

https://www.boards.ie/discussion/comment/121925166#Comment_121925166

RTB as useless as usual. No idea what the point of these guys is.

893bet

They are obviously not licencees.

The owner of the property never lived there. Two tenants lived their prior to the Son of the owner moving in. Him moving in does not magically make them now licencees.

28064212

Given that your plan is to sell the property, is the obvious solution here not to just assume they have tenancy rights, and issue them with a valid eviction notice? Yes, it might take a bit longer, but it's better than getting stuck into a drawn-out investigation into determining whether they are licencees or not. Especially since at the end of the investigation, they might be determined tenants, and you'll have to issue a valid eviction notice anyway

spaceHopper

I think when it comes down to it the RTB will find he's a tenant and you didn't get approval from the other tenants to move in your son and change their tenancy, taking away their rights. I'd issue them with notice to move in correct way as anything else will delay it. Also if is SF come to power then you could be stuck with tenant in situ sale which will devalue the property even making it unsellable. You could also say you need the whole house for a family member, your son?

MacDanger

https://www.boards.ie/discussion/comment/121925436#Comment_121925436

What would you like the RTB to do in this instance? Bearing in mind that they've only heard from one of the parties involved

timetogo1

https://www.boards.ie/discussion/comment/121925591#Comment_121925591

Was going to say the same.

If the house was rented to 3 people and the op didn't live there, then they're tenants (from the RTBs own website, bit worrying that they can't even assist with that basic question)

Types of Tenancy and Agreements | Residential Tenancies Board (rtb.ie)

"Examples of a licence are a person staying in hotel, hostel or guesthouse or a person sharing a house with the owner. "

Just because one of the tenants was changed from an existing tenant to the owners son doesn't magically change their status. If there was that loophole I'm sure it'd be abused all over the place by unscrupulous landlords.

If the owner was staying in one of the rooms from the time that the original 3 guys moved in then they're licensees. Doesn't appear that way though from what they said in their initial post.

wildwillow

Best advice is to go the legal route and give them the proper notice and follow the guidelines to the letter.

If you are genuinely selling the house you have grounds for giving notice. Check for the length of notice as it depends on how long the tenant has been in place.

It's a real nuisance but the best course of action. Download the templates from the RTB website and you will probably have to make a declaration of intention to sell. Be prepared for an appeal or finding the notice invalid.

Nothing to stop you moving more family members into the house in the meantime.

Oscar_Madison

https://www.boards.ie/discussion/comment/121925690#Comment_121925690

Yep treat them as tenants and provide the required notice - you could be in for a whole load of different challenges regardless of how this goes if you don’t - give the notice and start clearing out and closing off rooms not in use - your son can do this as he’s living there - the message will get through soon enough - just try to be as nice as possible - you just want this guy to leave quietly so put the effort in and give him little reason to complain - bite your tongue if you have to - otherwise if could be another year or so before he’s gone with appeals or dispute case opened which may happen anyway BTW- doesn’t sound like the cooperation type

TheChizler

The only thing that might make them licences is if they never had exclusive use of the house and the OP maintained access and kept the power to move tenants around and in and out and into different rooms. That latter condition is the closest thing to being true from the son's perspective but doesn't seem to be true for the other two renters. Seems they had exclusive use of the house though so I don't think you could argue it.

themoone

@saggy As the RTB mentioned, the Residential Tenancies Act 2004 does not apply to them.

Section 3 (h) mentions this. In Section 3 (g) "a dwelling within which the landlord also resides".

https://www.irishstatutebook.ie/eli/2004/act/27/section/3/enacted/en/html

The RTB has a right not to deal with this matter as the act does not apply to this dwelling. Section 84 and 85 that RTB and adjudicator should not deal with a case where the RTA does not apply. However, it says if they are of the opinion 😏

I can not find anything saying that "where a landlord intends on changing the terms of the tenancy these terms should only be changed with the agreement of all tenants involved.". Can anyone reference the section/article that states that?

saggy

It was always myself who organised getting new tenants whenever the room was empty they would never know who was moving in or out.

I even went as far as to ask threshold. I know that they only interact with tenants, but surprisingly they answered my query. They did say that once my son had moved in there the other two guys had lost their rights as tenants . They are now classed as licensees, they said if both guys did not want to become licenses, then they should’ve written to myself ,the landlord and state that I did not want my son to move in as it will change their rights as tenants and that it was too late for them now to change that.

Both guys knew that my son was moving in, and they had no issues with this.

[Deleted User]

https://www.boards.ie/discussion/comment/121926193#Comment_121926193

Threshold are not known for their impartiality, nor the accuracy of their advice. They will not pay your fine for you if one is charged.

Kaisr Sose

https://www.boards.ie/discussion/comment/121924874#Comment_121924874

I would not rely on RTB legal advice no more than I would ask Revenue for tax advice.

OP: I can't advise. It may be either or in this scenario. Licence or tenancy, the best case is to attempt to get the person to leave of their own accord.

timetogo1

Interesting. Any definition I can find of a licensee (relevant to this) is where an owner lives in the same house as the licensees. From the op it looks like the owner never shared the house with the tenants.

Now threshold are giving advice that a son of an owner moving in changes their status to licensees.

Have you this in writing?

themoone

@timetogo1 https://www.irishstatutebook.ie/eli/2004/act/27/section/3/enacted/en/html

3.—(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act).

(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—

(a) a dwelling that is used wholly or partly for the purpose of carrying on a business, such that the occupier could, after the tenancy has lasted 5 years, make an application under section 13 (1)(a) of the Landlord and Tenant (Amendment) Act 1980 in respect of it,

(b) a dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies,

(i) a public authority, or

(ii) a body standing approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act 1992 and which is occupied by a person referred to in section 9 (2) of the Housing Act 1988 ,

(d) a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 , the fee simple in respect of it,

(e) a dwelling occupied under a shared ownership lease,

(f) a dwelling let to a person whose entitlement to occupation is for the purpose of a holiday only,

(g) a dwelling within which the landlord also resides,

(h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling,

(i) a dwelling the subject of a tenancy granted under Part II of the Landlord and Tenant (Amendment) Act 1980 or under Part III of the Landlord and Tenant Act 1931 or which is the subject of an application made under section 21 of the Landlord and Tenant (Amendment) Act 1980 and the court has yet to make its determination in the matter.

arrianalexander

The simple solution is just issue them with an eviction notice, treat them as tenants

Might end up being a quicker solution.