Evicting adult son

Claw Hammer wrote: »

What is your source for this proposition of law?

Maybe the same source you have been using?

davindub wrote: »

Actually the word does mean a specific type of contract if used in any statute, legal document (well effectively if tested) rather than on the A&P forum or anywhere else without consequences.

But again the term is "a licence to occupy", which should be specific enough to apply.

Where are you getting the term "a licence to occupy" from?

A licensee is someone who is permitted by the occupier (where the occupier does not materially benefit from the licensee) to be on the premises weather by implied or express permission.

Why are ye going on about licencees and tenants? The op clearly states a home owner.

Op, they can be refused entry. There are other legal avenues you can take to prevent them gaining access to the house.

BanditLuke wrote: »

Kick him out OP. He'll thank you in years to come.

The OP has not given any details as to the adult child's behaviour etc.

Lots of speculation and jumping to conclusions in this thread.

davindub wrote: »

"lawfully in occupation of the dwelling concerned as a licensee" is the exact phrase used in the RTB act which refers to a licence to occupy.

Read the below article, as far as I remember it discusses right to occupy and licensee in the right contexts.
https://www.lawreform.ie/_fileupload/consultation%20papers/cpLandT.pdf



Clawhammers claim is that these terms from the RTB act give any person who stays in the property for 6 months the right to request to become a tenant of the landlord:

(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 F100 [ may, subject to section 3B(d) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015), request ] the landlord of the dwelling to allow him or her to become a tenant of the dwelling.

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

( a) an acknowledgement in writing by the landlord that the requester has become a tenant of the landlord suffices for the purpose,

( b) the requester shall hold the dwelling—

(i) on the same terms, or as appropriately modified, as those on which the existing tenant or multiple tenants hold the dwelling (other than terms comprising the rights, restrictions and obligations which arise by virtue of a Part 4 tenancy being in existence in respect of the dwelling),

(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.

CH is correct, note the qualification in the Act - lawfully in occupation of the dwelling concerned as a licensee of the tenant, all that says is that (a) they are lawfully in the premises and (b) that they are a licensee of the tenant.

As I already stated a licensee is someone who is permitted by the tenant (where the tenant does not materially benefit from the licensee) to be on the premises weather by implied or express permission.

That is the legal definition of what a licensee is, the Act has not modified the definition of licensee, a family member or indeed anyone who stays without a material benefit with your express or implied permission is a licensee.

It's like a mass goer attending church, they attend the church without any material benefit to the church and because the doors are open/unlocked they have an implied permission to enter, they are then in lawful occupation of the church as a licensee.

GM228 wrote: »

CH is correct, note the qualification in the Act - lawfully in occupation of the dwelling concerned as a licensee of the tenant, all that says is that (a) they are lawfully in the premises and (b) that they are a licensee of the tenant.

As I already stated a licensee is someone who is permitted by the tenant (where the tenant does not materially benefit from the licensee) to be on the premises weather by implied or express permission.
That is incorrect. It excludes the possibility of payment.

That is the legal definition of what a licensee is, the Act has not modified the definition of licensee, a family member or indeed anyone who stays without a material benefit with your express or implied permission is a licensee.

It is a definition, not the right definition. There is a wealth of case law/statutes on licence vs lease, surely you agree that is where the RTB / courts will look to when obtaining the definition to use?

It's like a mass goer attending church, they attend the church without any material benefit to the church and because the doors are open/unlocked they have an implied permission to enter, they are then in lawful occupation of the church as a licensee.

A couple of comments above. I will say this with a little respect, but you cannot choose a definition and then decide that is the meaning of the word within the RTB act. One of the first things I learned when studying law is that where a word is not defined in a statute, is that you look at the word in the context of the subject matter, which is an act regulating the relationship between landlord and tenant, the other related relationship being that of licensor and licensee (without conferring the property rights of the tenant) on the occupier. There is information going back all the way to 1860 on the matter, there is no need to refer to a so called "legal definition" to obtain an understanding of "occupation" or "licensee"

For example:

Reuters definition
"The lawful grant of a permission to do something that would otherwise not be legal or allowed, for example, to occupy a property, or to assign a lease where the landlord’s consent is required."

Better example:
Read the document I linked and look at the referred cases and consultation papers, acts prior to the RTB act. Look up cases where lease vs licence has been considered.


Now a little bit of cop on here will go a very long way, CH incorrectly sourced his information from the Threshold website, there is no 6 month limit in the relevant term, only that a part 4 tenancy be in place.

Bearing CH's source in mind and applying your definition, any person who was fortunate enough to stay the night with the tenants permission can request from the landlord to be treated as a tenant which the landlord cannot reasonably refuse? Are you sure you mean to say this is correct?

davindub wrote: »

Claw Hammer wrote: »

That wasn't my assertion, nor does the passage actually prove what you think it does.

Each of every one of them requires a contract of sorts!

A guest in a house does not require any type of contract. I invite someone to stay over,the person comes over and stays, there is no contract, the person is my licensee.

davindub wrote: »

Claw Hammer wrote: »

if you are still bickering about that passage:

"agreements relating to lodgers and guests"

is not

"agreements relating to lodgers, guests"

Lodgers and guests are not the same thing.The purpose of that passage is to show that such people are not tenants nor should they be considered as tenants protected by tenancy legislation. They are simply a category of licencee.

Claw Hammer wrote: »

davindub wrote: »

Lodgers and guests are not the same thing.The purpose of that passage is to show that such people are not tenants nor should they be considered as tenants protected by tenancy legislation. They are simply a category of licencee.

Lodgers and "guests" - as in guesthouse.....

Genuine question, but what case law states there must be a contract for any licensee status?

I think confusion is arising between a bare licence and a contractual licence.

A contractual licence as the term suggests requires a contract of sorts, a bare licence does not, permission may be implied or expressly given, in such a case.

Generally speaking where there is a family nature without any contract it will be considered a bare licence which is granted by express or implied permission. The existence of a licence can be inferred without any need to show there was any contract of sorts, something confirmed in the Murphy vs Murphy [1980] IR 183 Supreme Court case.

You can be a bare licensee even whilst negotiating the contract of a licence before becoming a licensee by contract.

How does a church goer in a church or someone browsing in a show (without making a purchase) contract with the church or shop owner?

marko99 wrote: »

This is an extremely ill-informed (i.e. inaccurate) reply. I'm amazed at how many people post authoritative looking statements of complete nonsense dressed up to look like facts or quasi legal opinions!

This is how trump and Boris got elected

Ash.J.Williams wrote: »

Is he getting the house ?

How do you know it's a he?

GM228 wrote: »

Genuine question, but what case law states there must be a contract for any licensee status?

I think confusion is arising between a bare licence and a contractual licence.

A contractual licence as the term suggests requires a contract of sorts, a bare licence does not, permission may be implied or expressly given, in such a case.

Generally speaking where there is a family nature without any contract it will be considered a bare licence which is granted by express or implied permission. The existence of a licence can be inferred without any need to show there was any contract of sorts, something confirmed in the Murphy vs Murphy [1980] IR 183 Supreme Court case.

You can be a bare licensee even whilst negotiating the contract of a licence before becoming a licensee by contract.

How does a church goer in a church or someone browsing in a show (without making a purchase) contract with the church or shop owner?

Firstly, I actually didn't state a contract was necessary for any licence to exist, CH made that accusation and foolishly quoted a passage containing examples of licences which all required a contract of sorts, I rebuffed that passage on principle.

There is confusion here regarding licences, the term is used across the Irish legal spectrum in tort, contract, and tax statutes (licences capable of being liable to stamp duty). Also other jurisdictions have developed different associations for the word (along with others).

Implied license's can be claimed in a trespass / adverse possession case, but to claim one is a licensee of another party due to implied licence doesn't seem correct, nor can you prove a contractual relationship to the licensor. You don't hold a implied licence which is personal to you, you are exploiting a perceived licence which can be used as a defense in tort to enter a property. Implied licence can only be described as a temporary permission based on the circumstances. In your church example, anyone who could enter would not be described as a licencee, it would literally include anyone who had not been excluded from entry. If the church doors were closed, no implied permission could be claimed.

All I can do in this regard is point to the countless Lease Vs Licence cases and a case where the courts have accepted the party held a licence to occupy to show where the courts have actually considered what a licensee is, but in every case, it is not the status but the contract which is at issue.

Shellmax as used in Shell V Costello
O'Rourke v O'Rourke & ors [2018] IEHC 791 -
"This Court accepts that by a licence agreement between the second and third defendants as licensors and Diane O'Rourke as licensee, she was granted a personal licence to reside in Furness Hall"

What is in the legislation is lawfully in occupation of the dwelling as a licencee of the tenant which does not suggest an implied licence or someone using such a temporary permission.

Occupation was considered in the case below, the word occupation is used throughout the act in terms of exclusive occupation, and there was some debate regarding the use of this word as opposed to possession when the act came out. Occupation is commonly use in UK leases to prevent someone not on the agreement moving in (but not visiting). As the case below shows, there is a link between occupation and the entitlement to claim damages for trespass, I am not saying that a licence to occupy would lead to a claim, but it shows that some higher level of meaning is placed on occupy than having entered the dwelling.

Szabo -v- Kavanagh 2013] IEHC 491 (RTB case)

"I accept that the plaintiff has raised a fair bona fide question in these proceedings. The plaintiff asserts that she was in occupation of the apartment at issue as her home or dwelling at the time she was excluded from it by the action of the defendant in changing the locks while she was at work. The plaintiff is therefore, prima facie, entitled to claim damages for trespass and for breach of her constitutional right to the inviolability of her dwelling."

Finally, all I can do it point at the long practice of using licence agreements for residential and commercial lettings, of which the act sought to address by bring more residential agreements under the protection of a tenancy and I would regard that term as specifically addressing the exclusion of agreements where the tenant lives with the landlord (in this instance the tenant) and the perceived lack of rights this relationship might unfairly place on a tenant who is paying a share and accepted as a shared tenant by the other tenants but not the landlord.