Rent Increase without notice

The J Stands for Jay · 01-03-2021 2:33pm

Claw Hammer wrote: »

Your point being?

The point being that all the agent can prove is that they send some letters to some addresses in on part of Dublin. They cannot prove that they sent a letter to OP's address.

Tar.Aldarion · 01-03-2021 2:35pm

Seve OB wrote: »

they sent it express post which is actually more expensive then registered post

Maybe it is, I just read the receipt and it showed the prepaid amount as €10 for all 7 letters, not for each, so assumed it was some sort of deal.

MacDanger · 01-03-2021 2:53pm

Time wrote: »

Post 6 has an image with a list of tracking numbers. If the postal system doesn’t offer the addresses then no it’s not, as that’s beyond their control and it’s perfectly reasonable for a business to use the national postal system. Also signatures aren’t being taken the past year for Covid reasons

You’re also making the mistake of assuming that they have to prove anything, they don’t, that’s not the standard in use.

Again, balance of probabilities applies. If someone could just lie in order to bypass that, the system would be unworkable.

Let's say this goes to the RTB tribunal and (based on what the OP has told us) it goes like this:

Agency: On 29th September, we posted a rent review to the OP

OP: I didn't receive any rent review

Agency: Here's proof that we posted it
*shows proof of postage but not to a specific address

OP: That doesn't show my address, you could have been posting something to a different address

Agency: It was to your address, take my word for it

Do you think that the agency wins this case?

In my opinion, the OP wins this 100% of the time (in the absence of any other evidence)

The J Stands for Jay · 01-03-2021 2:58pm

MacDanger wrote: »

Agency: Here's proof that we posted it
*shows proof of postage but not to a specific address

This should read:

Agency: Here is a receipt for some stamps.

01-03-2021 2:59pm

Tar.Aldarion wrote: »

Maybe it is, I just read the receipt and it showed the prepaid amount as €10 for all 7 letters, not for each, so assumed it was some sort of deal.

It's a tenner a go for express post. €8 for registered. There's no way they paid that for all 7 letters, but I digress.

If someone from the agency states that they posted it and that the document they have is the receipt, that is evidence

You're correct. However, multiple people, including myself, have already stated in this thread that 'evidence of posting' means nothing in terms of the RTA. You can stand there and claim whatever you want, the RTB will not accept proof of postage as proof of delivery. And with good reason. You could send a blank postcard to your tenant, get proof of postage, wait two months and say "I sent him the rent review back in January, here's proof" then evict an otherwise compliant tenant on spurious grounds of non-payment of rent.

The agency have zero proof of delivery, so that means Tar is well within his rights to tell them to PFO and start again.

Dav010 · 01-03-2021 3:00pm

MacDanger wrote: »

Let's say this goes to the RTB tribunal and (based on what the OP has told us) it goes like this:

Agency: On 29th September, we posted a rent review to the OP

OP: I didn't receive any rent review

Agency: Here's proof that we posted it
*shows proof of postage but not to a specific address

OP: That doesn't show my address, you could have been posting something to a different address

Agency: It was to your address, take my word for it

Do you think that the agency wins this case?

In my opinion, the OP wins this 100% of the time (in the absence of any other evidence)

In certain cases hasn’t the courts allowed notices to be nailed to properties? That doesn’t prove the owner/tenant accepted/viewed it.

There are now more pages on this thread about proof of the letter being sent than there is advice to the op. The RTB will decide if either the op or the LL opens a dispute, but on the balance of probability, it does look as if the letter was sent. The best advice is just to say to the EA that it was not recieved, could they please reissue a valid notice, then leave the ball in their court to raise a dispute with the RTB.

MacDanger · 01-03-2021 3:03pm

True, probably a lot of discussion about An Post!

This advice from earlier is probably the way to go OP, good luck with it

Smee_Again wrote: »

As far as I can see this can only really go 3 ways -
OP pays the increased rate backdated to January

Agency issues OP with a valid notice and he pays the higher rate in 3 months

OP/Agency raises a dispute with RTB who may or may not decide valid notice was issued

I wouldn't take the first option when option 3 is there, and if I was the agency I wouldn't risk option 3 because it could delay matters for months when option 2 is there.

01-03-2021 3:04pm

Padre_Pio wrote: »

What do your neighbors say? Did they get the same letter?

This is a great question. If you really wanted to throw the cat amongst the pigeons, you could rally the neighbours and show them what the RTB said about the notice not being valid. I'd bet every last penny I have that they received the same, invalid notice (if they received anything), and are probably just paying it anyway.

MacDanger wrote: »

Pure speculation but I wonder if the agency is trying to cover their ass here i.e. did the LL ask the agent to review the rent, the agency made a balls of it and is now trying to recover because the LL will (rightly from their point of view) be expecting to see the increased amount coming in

I alluded to something similar in an earlier post. I can almost guarantee that is exactly what's going on. Especially if there are 7+ properties owned by the same landlord. They've asked the agent to increase the rents, the agents made a hames of it, and they are in damage limitation mode to try and rectify it ASAP without getting the bullet from the LL.

Time · 01-03-2021 3:08pm

MacDanger wrote: »

Let's say this goes to the RTB tribunal and (based on what the OP has told us) it goes like this:

Agency: On 29th September, we posted a rent review to the OP

OP: I didn't receive any rent review

Agency: Here's proof that we posted it
*shows proof of postage but not to a specific address

OP: That doesn't show my address, you could have been posting something to a different address

Agency: It was to your address, take my word for it

Do you think that the agency wins this case?

In my opinion, the OP wins this 100% of the time (in the absence of any other evidence)

Yes because that’s how balance of probabilities works. Especially if they can attest to the fact that there was no other issue with any other letters sent that day and that an post has says they delivered it.

cruizer101 · 01-03-2021 3:16pm

The receipt shows €10 x 7 for the 7 letters, there isn't any total as it is prepaid.
Given it is prepaid I would have thought they would have a copy of the prepaid label that they had to download and attach to the letter which should have the address on it, but I'm not too familiar with the prepaid labels.

Claw Hammer · 01-03-2021 3:41pm

Deleted User wrote: »

It's a tenner a go for express post. €8 for registered. There's no way they paid that for all 7 letters, but I digress.

You're correct. However, multiple people, including myself, have already stated in this thread that 'evidence of posting' means nothing in terms of the RTA. You can stand there and claim whatever you want, the RTB will not accept proof of postage as proof of delivery. And with good reason. You could send a blank postcard to your tenant, get proof of postage, wait two months and say "I sent him the rent review back in January, here's proof" then evict an otherwise compliant tenant on spurious grounds of non-payment of rent.

The agency have zero proof of delivery, so that means Tar is well within his rights to tell them to PFO and start again.

The RTA has been cited already. proof of delivery is not a requirement.

Tar.Aldarion · 01-03-2021 3:43pm

RTB responded to an email I sent now with this information, I thought it didn't send so I contacted them live. I will put it here in case it helps others.

Dear Tar,

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

Thank you for your email. You are entitled to 90 days written notice of any rent review. If you did not receive this notice, it would be expected that a new notice be served and you get 90 days’ notice as stated in legislation. I would suggest that you contact Threshold and seek their advice as RTB do not work in an advisory capacity. Threshold will advise if you should lodge a dispute now or wait for formal notice. If you do wish to lodge a dispute you can do so online, you will need to create an account if you do not already have one.

If you have any further queries please do not hesitate to contact us.

Kind regards

Claw Hammer · 01-03-2021 3:43pm

McGaggs wrote: »

The point being that all the agent can prove is that they send some letters to some addresses in on part of Dublin. They cannot prove that they sent a letter to OP's address.

They can give oral evidence that they sent a letter to the o/p's address. It will be up to the o/p to rebut that.

01-03-2021 3:43pm

Time wrote: »

Yes because that’s how balance of probabilities works. Especially if they can attest to the fact that there was no other issue with any other letters sent that day and that an post has says they delivered it.

That is EXACTLY how it works in a legal context, yes. Saying that you did it 10 times and 9 times it occurred without issue therefore the 10th time MUST have gone without issue is not a valid legal standpoint.

"we posted 10 letters, judge, and the other 9 were all received no problem"
"Okay, and how do you know there were no issues with the other letters, and that all 9 were delivered safely and securely? What evidence have you got?"
"Well, we asked the occupants of the other properties, and they told us"
"mmmhmmm, and the owner of this property we're discussing today?"
"ehhhhhhh......."

You'd be laughed out the gate, and rightly so.

Seve OB · 01-03-2021 8:20pm

So many experts on here.

Who needs solicitors!

Time · 01-03-2021 10:15pm

[Deleted User] wrote: »

That is EXACTLY how it works in a legal context, yes. Saying that you did it 10 times and 9 times it occurred without issue therefore the 10th time MUST have gone without issue is not a valid legal standpoint.

"we posted 10 letters, judge, and the other 9 were all received no problem"
"Okay, and how do you know there were no issues with the other letters, and that all 9 were delivered safely and securely? What evidence have you got?"
"Well, we asked the occupants of the other properties, and they told us"
"mmmhmmm, and the owner of this property we're discussing today?"
"ehhhhhhh......."

You'd be laughed out the gate, and rightly so.

“I didn’t receive the fine in the post judge” doesn’t get accepted in courts up and down the country day in and day out.

Markcheese · 01-03-2021 10:22pm

I'm sure if you inform the property agent that you didn't receive the notice but you'd be happy to receive it now or they can wait till after an rtb hearing to officially give it to you ... they'll probably just give to you now ( whilst grumbling) ..

Subutai · 01-03-2021 10:45pm

Time wrote: »

“I didn’t receive the fine in the post judge” doesn’t get accepted in courts up and down the country day in and day out.

Depends on the case, Judges have and do accept sworn evidence that FCPNs were not received. The big difference though being that one revives more than one notice, followed by a summons. That makes it harder for a Judge to prefer the evidence that it was not received over evidence that it was.

That is where the landlord here will have a problem. The interpretation act allows service of a notice through ordinary post. Registered letters aren't required (and in fact an amendment to require the use of registered post was defeated when the Bill that would become the 2004 Act was before the Dáil). However, you must still show that you sent the letter to the correct address. It does not appear that the landlord can do so here, or presumably they would have done so already.

The tenant is in a strong position here. The landlord cannot it seems provide satisfactory evidence that the notice was served to the correct address. Even if they could, that would only provide a rebuttable presumption that the notice was received. The tenant can, by swearing an affidavit for example, provide evidence that it was not. The landlord because they did not serve the notice personally or require a signature cannot provide any evidence to the contrary that a tribunal could prefer.

Claw Hammer · 02-03-2021 12:50pm

Subutai wrote: »

Depends on the case, Judges have and do accept sworn evidence that FCPNs were not received. The big difference though being that one revives more than one notice, followed by a summons. That makes it harder for a Judge to prefer the evidence that it was not received over evidence that it was.

That is where the landlord here will have a problem. The interpretation act allows service of a notice through ordinary post. Registered letters aren't required (and in fact an amendment to require the use of registered post was defeated when the Bill that would become the 2004 Act was before the Dáil). However, you must still show that you sent the letter to the correct address. It does not appear that the landlord can do so here, or presumably they would have done so already.

The tenant is in a strong position here. The landlord cannot it seems provide satisfactory evidence that the notice was served to the correct address. Even if they could, that would only provide a rebuttable presumption that the notice was received. The tenant can, by swearing an affidavit for example, provide evidence that it was not. The landlord because they did not serve the notice personally or require a signature cannot provide any evidence to the contrary that a tribunal could prefer.

The residential Tenancies Act has already been cited. It governs the serfvice of notices, which only require they be sent by ordinary post.

mrslancaster · 02-03-2021 1:28pm

Claw Hammer wrote: »

The residential Tenancies Act has already been cited. It governs the serfvice of notices, which only require they be sent by ordinary post.

If the onus is on the agents/landlords that it was posted or delivered by hand or even just pinned to the front door, and they can't do that, because the receipt from AnPost has no address or even a name, then how can they stand over it.

Maybe if agent had sent a copy of the notice by email or a text to inform the tenant to expect a notice as it had been posted on xx date that might be enough proof. Not great procedures by the agent. If I was the tenant I'd want proof or a new correct notice.

Claw Hammer · 02-03-2021 1:30pm

mrslancaster wrote: »

If the onus is on the agents/landlords that it was posted or delivered by hand or even just pinned to the front door, and they can't do that, because the receipt from AnPost has no address or even a name, then how can they stand over it.

Maybe if agent had sent a copy of the notice by email or a text to inform the tenant to expect a notice as it had been posted on xx date that might be enough proof. Not great procedures by the agent. If I was the tenant I'd want proof or a new correct notice.

The onus is just to show it was posted to the o/ps address. If the agent gives oral evidence that they posted it theonus shifts to the other party to contradict that. The RTB can just infer someone is a liar.

Subutai · 02-03-2021 6:54pm

Claw Hammer wrote: »

The residential Tenancies Act has already been cited. It governs the serfvice of notices, which only require they be sent by ordinary post.

Yes. It is the term "service" which is defined by the Interpretation Act as I described.

Claw Hammer wrote: »

The onus is just to show it was posted to the o/ps address. If the agent gives oral evidence that they posted it theonus shifts to the other party to contradict that. The RTB can just infer someone is a liar.

Correct. However, when a tribunal is weighing the value of sworn testimony from two parties contradicting one another, they will look at what other evidence could be proffered. The tenant cannot reasonably have anything other than oral evidence. You cannot otherwise prove a negative.
The landlord however would be expected to have retained evidence that the notice was properly served. If they cannot that will tend to show that they are lying and lead the tribunal to prefer the evidence of the tenant.

That's why you do personal service, seek a signature, follow up with a text message or phone call where you do not hear back. Not having done those things, which would be expected of a reasonable person running a business, and waiting for arrears to accumulate, really does not leave them in a good position.

Claw Hammer · 03-03-2021 11:49am

Subutai wrote: »

Yes. It is the term "service" which is defined by the Interpretation Act as I described.

Correct. However, when a tribunal is weighing the value of sworn testimony from two parties contradicting one another, they will look at what other evidence could be proffered. The tenant cannot reasonably have anything other than oral evidence. You cannot otherwise prove a negative.
The landlord however would be expected to have retained evidence that the notice was properly served. If they cannot that will tend to show that they are lying and lead the tribunal to prefer the evidence of the tenant.

.

If there is a conflit on oral evidence there has to be cross examination. The Tribunal cannot just conclude that the landlord is a liar. It would be a matter for the tenant to put it to trhe landlord that they were lying.

nibtrix · 03-03-2021 2:32pm

Tar.Aldarion wrote: »

Got this now:

Please be advised that our records state that the Rent increase was sent on the 29th September 2020 via Express Post.
While we stand over our records, we will also send this Rent Review via email going forward.
I trust this is agreeable?
Can you please confirm that this is agreeable with you?
I await your response
Kind regards

Putting aside all the discussion about Express Post vs Registered Post etc., did you respond to this communication from the agency?

Why don't you just respond and say "Yes from now on please send notifications by email as well as Registered post, so that I can let you know if the official postal notification does not arrive.
As I did not receive the rent review notification with effective date of 1st Jan (or whenever), please re-issue this notification to me with the appropriate 90-day notice period".

If they then come back and say they want to backdate the increase, that's when you should raise a case with RTB. I wouldn't see any point in doing it before you know it's going to be a problem...

Caranica · 03-03-2021 3:16pm

nibtrix wrote: »

Putting aside all the discussion about Express Post vs Registered Post etc., did you respond to this communication from the agency?

Why don't you just respond and say "Yes from now on please send notifications by email as well as Registered post, so that I can let you know if the official postal notification does not arrive.
As I did not receive the rent review notification with effective date of 1st Jan (or whenever), please re-issue this notification to me with the appropriate 90-day notice period".

If they then come back and say they want to backdate the increase, that's when you should raise a case with RTB. I wouldn't see any point in doing it before you know it's going to be a problem...

Why help the agency? It's not the OP's fault the agency messed up. They're being paid to administer the tenancy. No way I'd do the above. See what the agency's next move is and next step RTB

nibtrix · 03-03-2021 4:54pm

Caranica wrote: »

Why help the agency? It's not the OP's fault the agency messed up. They're being paid to administer the tenancy. No way I'd do the above. See what the agency's next move is and next step RTB

Because there should be give and take in every relationship, even a business one. I totally agree that the OP should not back-pay any increase, but if you go to the RTB without even trying to resolve the issue amicably, the agency/landlord is not likely to make any allowances for you in the future either. As the OP said themself:

Tar.Aldarion wrote: »

As for the worst that can happen, they can be dicks if I try to dispute, not getting maintenance done for months, kicking me out at the next part IV renewal etc, things like that. Increasing the rent every 12 months on the dot (instead of 17 like this time).

If it was a place you had only been in for a year and thought you might not stay for long (or had other issues with the place) then yes, I could get on board with being an obstructive as possible.
If you've been there a long time, are happy with the place and expect to want to stay long term, it's in your own best interest to be somewhat obliging - you can still hold them to issuing the notice properly and giving you the correct notice while doing this.

Tar.Aldarion · 03-03-2021 6:44pm

I'm a reasonable person, they can discuss a compromise with me or issue the correct notice. I let them know a few options and they've not gotten back to me for a few days.

Tar.Aldarion · 08-03-2021 3:18pm

Some closure for you guys. They accepted my points and are issuing notice. My rent is now going up in July to the same amount.

Varik · 08-03-2021 5:13pm

Did you negotiate to the same amount or were they being magnanimous/didn't realize they could go higher.

Just going by the original 5.6% increase amount, if they were originally increasing it by the the max that the ~16 months allowed. Wondering why they didn't go to the max again.

Tar.Aldarion · 08-03-2021 5:45pm

They are just being magnanimous (or something else is an issue behind the scenes). It is written on the notice how much they can put it up to (for the calculation purposes) but they are not doing it, so fair play.

Rent Increase without notice

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