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Part 4 tenant subletting to licensee housemate

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  • 11-06-2019 10:42am
    #1
    TSQ
    Registered Users Posts: 283 ✭✭


    I have a question re the law regarding the rights of licensees to demand to become tenants, where this affects the rights of the existing tenant, who may not want to share the rights and responsibilities of his tenancy with a new housemate. The rules seem to refer to landlords only, but don’t seem to take into account the preferences of the original tenant in such a scenario......
    “What is a Licensee?
    A licensee is a person who occupies accommodation under license. Licensees can arise in all sorts of accommodation but most commonly in the following four areas;
    persons staying in hotels, guesthouses, hostels, etc.,
    persons sharing a house/apartment with its owner e.g. under the ‘rent a room’ scheme or ‘in digs’,
    persons occupying accommodation in which the owner is not resident under a formal license arrangement with the owner where the occupants are not entitled to its exclusive use and the owner has continuing access to the accommodation and/or can move around or change the occupants, and
    persons staying in rented accommodation at the invitation of the tenant.
    The provisions of the Residential Tenancies Act 2004 do not apply to the first three categories. Although most of the Act does not apply to the fourth category also, some provisions are relevant where the licensee is residing with the tenant and this leaflet is aimed at persons in that category.

    Source: https://www.rtb.ie/media-research/pu...-accommodation

    During the existence of a Part 4 tenancy any lawful licensee of the tenant/s may request the landlord to be allowed to become a tenant of the tenancy. The landlord may not unreasonably refuse such a request and must give his/her acceptance in writing.”

    Now, what if I am the part 4 tenant sharing with a licensee I have brought in to the house, but want to be in control of who lives with me?. Can I demand that my licensees are refused a tenancy, so as to keep the same rights as a live-in landlord who can get rid of a flatmate for any or no reason? Say I have lived in a house for 6 years and consider it my home, and don’t want a co share gaining the same permanent right of tenant as myself, my circumstances could change and I can afford not to share, or they become a pain in the a**, or just for any reason or no reason. Despite not owning the house, it would still be my home, just the same as a resident owner landlord. So what are the first tenants rights in such a situation?
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    #2
    Del2005
    Registered Users Posts: 18,915 ✭✭✭✭Del2005


    IMO you are being unreasonable so that is not a valid reason to reject the licencee becoming a tenant.

    Do you think that it's reasonable that after 6 months you get 4 years , or whatever it is now, rights to the landlords property? But at the same time you don't want someone else entitled to the same protection getting it because you think that you should be entitled to the property alone.

    It would be beneficial to the landlord to have more tenants in the property because if we ever fixed our law then they could have more people to chase for rent.

    Do you also disagree with the law allowing you to nominate someone to take over your lease and if the landlord refuses you can walk away?


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    #3
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    TSQ wrote: »
    I have a question re the law regarding the rights of licensees to demand to become tenants, where this affects the rights of the existing tenant, who may not want to share the rights and responsibilities of his tenancy with a new housemate.

    If you collect the rent from the new occupiers and remain responsible to the LL for the full amount you can argue that the new occupiers are sub tenants not licencees and as such they are living with their landlord.You should notify the new occupants of the position at the outset.


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    #4
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    From the RTB
    During the existence of a Part 4 tenancy any lawful licensee of the tenant/s may request the landlord to be allowed to become a tenant of the tenancy. The landlord may not unreasonably refuse such a request and must give his/her acceptance in writing.

    I don't see any caveat that suggests the above doesn't apply if another tenant doesn't like it.

    Open to evidence to the contrary.


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    #5
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    Graham wrote: »
    From the RTB



    I don't see any caveat that suggests the above doesn't apply if another tenant doesn't like it.

    Open to evidence to the contrary.

    If they are sub tenants as opposed to licencees, the above doesn't apply.


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    #6
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    Just had an admittedly very quick trawl through the RESIDENTIAL TENANCIES ACT 2004, REVISED, Updated to 28 March 2019:

    http://revisedacts.lawreform.ie/eli/2004/act/27/revised/en/html

    I don't see anything that excludes sub-tenants. There's quite a few references (that I read as granting) protection to sub-tenants but still open to correction. It's quite possible (likely) that I missed something.


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    #7
    TSQ
    Registered Users Posts: 283 ✭✭TSQ


    Del2005 wrote: »
    IMO you are being unreasonable so that is not a valid reason to reject the licencee becoming a tenant.

    Do you think that it's reasonable that after 6 months you get 4 years , or whatever it is now, rights to the landlords property? But at the same time you don't want someone else entitled to the same protection getting it because you think that you should be entitled to the property alone.

    It would be beneficial to the landlord to have more tenants in the property because if we ever fixed our law then they could have more people to chase for rent.

    Do you also disagree with the law allowing you to nominate someone to take over your lease and if the landlord refuses you can walk away?

    Hey, whether you think it is reasonable or unreasonable, I really just want to know the legal position. (and To be honest, I don't think it is reasonable for me to be able to nominate any scumbag to take over my lease if I decide to walk away from it, either, and the landlord has to suck it up. It might suit me as a tenant, but that doesn't mean itis fair or reasonable from the landlord's point of view)


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    #8
    Del2005
    Registered Users Posts: 18,915 ✭✭✭✭Del2005


    TSQ wrote: »
    Hey, whether you think it is reasonable or unreasonable, I really just want to know the legal position. (and To be honest, I don't think it is reasonable for me to be able to nominate any scumbag to take over my lease if I decide to walk away from it, either, and the landlord has to suck it up. It might suit me as a tenant, but that doesn't mean itis fair or reasonable from the landlord's point of view)

    That's my point. The legislation is written so that tenants have all the rights. When you sublet you now have tenants that are allowed to request they get put on the lease. For a landlord that is a good thing, for you it isn't. But you not wanting them added to the lease isn't a reasonable reason for a landlord to refuse and with the RTB biased against landlords it could cost them a lot if they refuse.


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    #9
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    Del2005 wrote: »
    That's my point. The legislation is written so that tenants have all the rights. When you sublet you now have tenants that are allowed to request they get put on the lease. For a landlord that is a good thing, for you it isn't. But you not wanting them added to the lease isn't a reasonable reason for a landlord to refuse and with the RTB biased against landlords it could cost them a lot if they refuse.

    Is it a good thing for the LL? He can easily get rid of a licensee of the tenant but can’t if they become a tenant.


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    #10
    Lumen
    Registered Users Posts: 31,017 ✭✭✭✭Lumen


    I don't understand how the subbed person can be a licensee since the landlord is not resident.

    The exemptions from tenants rights are designed to protect an owner occupier, not a tenant.


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    #11
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    Lumen wrote: »
    I don't understand how the subbed person can be a licensee since the landlord is not resident.

    The exemptions from tenants rights are designed to protect an owner occupier, not a tenant.

    They are a licensee of the tenant, the tenant is treated as an owner occupier essentially.


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    #12
    Lumen
    Registered Users Posts: 31,017 ✭✭✭✭Lumen


    Langston Microscopic Watt wrote: »
    They are a licensee of the tenant, the tenant is treated as an owner occupier essentially.

    Where is that provided for in legislation?


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    #13
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    That appears to be the RTB's interpretation Lumen....
    What is a Licensee in Private Rented Accommodation?
    A licensee residing in a private rented dwelling is living there at the invitation of the tenant as the arrangement enabling a licensee to live in rented accommodation is made with the tenant and not with the landlord. The tenant may already be well established in the dwelling and may take in a licensee because another tenant or licensee has moved out, or the tenant can no longer afford the rent. Alternatively, the tenant may be just entering into a tenancy with the landlord whereby the landlord has indicated that the tenant may admit a certain number of persons to share the dwelling with the tenant. Essentially therefore, in the private rented sector someone is a licensee if living with the person with whom he/she made the letting arrangement
    Source: RTB Licensees in Private Rented Accommodation


    The main difference I can see between a licensee of another tenant, and a licensee of an owner occupier. A licensee of another tenant is entitled to request the landlord to be allowed to become a tenant.


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    #14
    Del2005
    Registered Users Posts: 18,915 ✭✭✭✭Del2005


    Are you just annoyed at loosing out on the rent a room allowance if your licencee becomes a tenant of the landlord?


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    #15
    the_syco
    Registered Users Posts: 37,295 ✭✭✭✭the_syco


    Claw Hammer wrote: »
    If they are sub tenants as opposed to licencees, the above doesn't apply.
    If they are sub-tenants, wouldn't that not make them licensees? Or would they be sub-tenants if the tenant gave them a contract?


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    #16
    Del2005
    Registered Users Posts: 18,915 ✭✭✭✭Del2005


    the_syco wrote: »
    If they are sub-tenants, wouldn't that not make them licensees? Or would they be sub-tenants if the tenant gave them a contract?

    They are both. The difference is that if they live with the owner they will always be licencees. If they live with a renter then they can become tenants and get all the protection of being a tenant.


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    #17
    meijin
    Registered Users Posts: 1,255 ✭✭✭meijin


    Graham wrote: »
    From the RTB

    During the existence of a Part 4 tenancy any lawful licensee of the tenant/s may request the landlord to be allowed to become a tenant of the tenancy. The landlord may not unreasonably refuse such a request and must give his/her acceptance in writing.
    I don't see any caveat that suggests the above doesn't apply if another tenant doesn't like it.

    Open to evidence to the contrary.

    Any ideas what can be reasonable / unreasonable reason to refuse?

    Anything in previous RTB decisions about that? Not sure how to search for that...


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    #18
    IAmTheReign
    Registered Users Posts: 339 ✭✭IAmTheReign


    I doubt there's anything in the Act that directly allows the tenant to reject the request of the licensee. After all, why would anyone be happy to have someone living with them but also think they're entitled to more rights than them?

    Hypothetically the tenant could potentially argue though that their current agreement with the landlord affords them sole rights to the property and by agreeing to the licensees request that's no longer the case and the landlord would be in breach of contract. This could give the landlord grounds for reasonable refusal.

    In reality though if a licensee did want tenancy rights and the tenant tried to do the above I would imagine the tension over the fact would likely lead to the licensee moving out pretty quickly. Since a licensee can be removed more or less immediately if a tenant was concerned about this happening the easiest thing to do would be to preemptively kick them out before anything happened.

    As a side note does anyone know could the licensee in this situation even bring a case to the RTB, since they don't cover licensees?


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    #19
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    The licensee can't apply to become a tenant unless they have resided in the dwelling for 6 months. The existing tenant could get in licencees and throw them out every 5 1/2 months.
    A licensee who makes and documents the request doesn't have to do anything further. He can make complaints to the RTB saying he is a tenant and the RTB will agree that he is.


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    #20
    Idonotknow
    Registered Users Posts: 78 ✭✭Idonotknow


    I can tell you from recent experience - they will be considered a sub tenant and will get the tenancy if that’s what they want. I had been under the impression it was licensee, unfortunately I was wrong and now they are a full tenant.


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    #21
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    Idonotknow wrote: »
    I can tell you from recent experience - they will be considered a sub tenant and will get the tenancy if that’s what they want. I had been under the impression it was licensee, unfortunately I was wrong and now they are a full tenant.

    He certainly can't be a sub tenant if the original tenant is living there.


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    #22
    Idonotknow
    Registered Users Posts: 78 ✭✭Idonotknow


    Claw Hammer wrote: »
    He certainly can't be a sub tenant if the original tenant is living there.

    All I know is that they agency argued that the were in fact a sub tenant and they had to allow the person be on the lease. I did state that as far as I was aware it was a licensee situation, I was told that it did not qualify, and was a sub tenant

    Would like for it to have been a licensee but was told that it was not.


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    #23
    ShlugEireann
    Banned (with Prison Access) Posts: 47 ✭ShlugEireann


    What happens if the tenant pays the whole rent to the landlord but the other guy has now been added to the tenancy and decides not to pay the first tenant, can the first tenant throw him out or will the landlord lose out?


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    #24
    ShlugEireann
    Banned (with Prison Access) Posts: 47 ✭ShlugEireann


    Del2005 wrote: »
    Are you just annoyed at loosing out on the rent a room allowance if your licencee becomes a tenant of the landlord?

    What is this allowance?

    Surely the "income" from the other licensees is offset by the outgoing of the full rent anyways?

    I'm currently paying for a full house but the rooms are rented out. Isn't that just how it works?


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    #25
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    Idonotknow wrote: »
    All I know is that they agency argued that the were in fact a sub tenant and they had to allow the person be on the lease. I did state that as far as I was aware it was a licensee situation, I was told that it did not qualify, and was a sub tenant

    Would like for it to have been a licensee but was told that it was not.

    Under the Act a sub tenancy can't be created of part of a dwelling. A licencse can be given in respect of part of a dwelling. After 6 months a licensee can become a tenant.


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    #26
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    ShlugEireann wrote: »
    What happens if the tenant pays the whole rent to the landlord but the other guy has now been added to the tenancy and decides not to pay the first tenant, can the first tenant throw him out or will the landlord lose out?

    It depends on whether the dwelling is let on a joint and several basis. If it is on that basis then all tenants are liable for each others rent.


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    #27
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    ShlugEireann wrote: »
    What is this allowance?

    Surely the "income" from the other licensees is offset by the outgoing of the full rent anyways?

    I'm currently paying for a full house but the rooms are rented out. Isn't that just how it works?

    Nothing stopping the head lease holder charging more of a licensee than would be required to make up the rent. The overall rent could be say 900 a month for a 3 bed house. Person rents full house and takes in two licensees and rather than each person paying 300 he chargers the two licenses 400 each so he makes 200 euro. This is not uncommon.


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    #28
    mrslancaster
    Registered Users Posts: 1,784 ✭✭✭mrslancaster


    If a licencee wants to become a full tenant, and the original tenant has a registered tenancy for the entire property, they must be able to object if the landlord tried to change the terms of the agreement by allowing a licencee to become a named tenant?

    The only situation I could think of is where the landlord had let out the rooms in a house individually.

    If the OP rents the entire property, then the landlord must be in breach of the OP's tenants rights if he tried to change the lease? If the licencee contacted the LL directly, how would it be unreasonable if he said that breaking the terms of the lease would be sure to find him with an RTB dispute? Surely the LL can't be expected to ignore the existing tenant's rights or his own responsibilities to give rights to another person??



    The details about licencees and sub-letting can be a bit confusing...is my understanding below on the right track?

    Licencees
    A licencee/guest is what used to be described as a "lodger" or "in digs". A person living in owner's home is clearly a licencee and pays an agreed amount of rent to the owner-landlord.

    A person living in the home of a registered tenant but who is not named on the tenancy agreement is a licencee. The licencee pays an agreed rent to the registered tenant. This can be whatever % of the rent the registered tenant decides. The registered tenant is liable to the landlord for the entire 100% of the rent in the tenancy agreement. If the licencee does not pay, the registered tenant is still liable for 100% or will be in breach.


    Sub-Letting
    A person who sub-lets agrees to rent a property from the main (original) tenant at a rent agreed with the main tenant - within the rules. The main tenant is liable to the landlord for 100% of his/her agreed rent which could be a different amount. Both the original tenancy agreement and the sub-let tenancy agreement need to be registered with the RTB.

    Afaik, when a person sub-lets, the original tenant is not living in the property and becomes the landlord of the sub-letter. For example, if an original registered tenant had acquired 6 years part4 rights but needed to relocate for work reasons for 1/2 years and did not want to lose the property, they could sub-let. They are still 100% liable to the landlord for the rent in their own tenancy agreement even if the sub-letter defaults on rent or is in breach of any obligations.

    The sub-letter has all the normal tenant rights and the original tenant takes on all the responsibilities of a landlord. The sub-let can only be terminated on the ground that the original tenant needs the property back for their own use.

    Assignment
    If a main tenant assigns their lease or tenancy agreement they basically pass it over to a new tenant who deals directly with the landlord. The original tenant has no more interest or rights in the property.

    Thanks for any info.


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


    mrslancaster wrote: »
    If a licencee wants to become a full tenant, and the original tenant has a registered tenancy for the entire property, they must be able to object if the landlord tried to change the terms of the agreement by allowing a licencee to become a named tenant?
    A licensee who is residing in the property for 6 months can calim a tenancy under the act. A tenant who takes in a licencee runs the risk of the licencee claiming a tenancy. the landlord can't be blamed for this.


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    #30
    mrslancaster
    Registered Users Posts: 1,784 ✭✭✭mrslancaster


    4ensic15 wrote: »
    A licensee who is residing in the property for 6 months can calim a tenancy under the act. A tenant who takes in a licencee runs the risk of the licencee claiming a tenancy. the landlord can't be blamed for this.

    where does it say that a tenant has to agree or accept any change in their tenancy? The only place that mentions a licencee changing to a full tenant is in chapter 6 which is about multiple tenancies.

    How can a landlord change the terms of a tenancy agreement if the tenant does not agree to it? If a LL can't unreasonably refuse to accept a licencee after 6 months it makes no sense for any tenant to have a tenancy agreement.

    Tenants have rights and as has been pointed out on numerous times in this forum, they are entitled to peaceful enjoyment of their home. If they decide to have a guest/lodger staying that is up to them but if the LL tries to impose additional tenants or compel the tenant to accept such a change then they must be breaching the tenants rights as it is a fundamental change to the agreement.

    I would be on to the RTB immediately for breach of LL obligations.


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    #31
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    4ensic15 wrote: »
    A licensee who is residing in the property for 6 months can calim a tenancy under the act. A tenant who takes in a licencee runs the risk of the licencee claiming a tenancy. the landlord can't be blamed for this.

    .

    Surely the LL can refuse on grounds he never permitted the person to move in and demand they vacate instantly.


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