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RTB procedure

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  • 21-02-2019 8:19pm
    #1
    trishabon
    Registered Users Posts: 53 ✭✭


    So much great advice here. All opinions would be greatly appreciated...

    Long story, much like a soap opera but basically I have been renting from a landlord who I since discovered has been sub letting to me. I discovered that there was no tenancy agreement after my flatmate moved out last year. Due to ill health affecting my mobility and shortage of available apartments to let in Dublin I decided to keep the roof over my head and look for a new flatmate. I have had a few short term people and managed to pay the rent every month. This month the landlord told me he was waiting to move to a new house but the tenants hadn't vacated yet. He asked if I would let him and his 7 month pregnant wife stay for a week or so in exchange for a reduced rent this month. After two days it was apparent that they had come to stay, all my stuff was removed from the living area, my food chucked from the fridge, etc. I confronted him and was told that I am welcome to stay if I paid 1000 a month. I have been advised to go to the RTB but I am not sure how long this will take and how it will affect me. I am on disability allowance since surgery on my spine last November. I have been trying to get social housing since December, with supporting paperwork but they are not interested in my situation and lost my tax form.
    I am confused and someone even advised me not to do this because it might be putting myself in physical danger. The 'landlord' is not Irish. I am aware that I have done a few stupid things here, but what would anyone faced with the option of being homeless or paying cash to a gangster to keep a roof over their head do? I have been trying since early 2017 to rent an apartment. I have great references but only got maybe 5 viewings up to when I was offered the chance to move in here with someone I knew for over 5 years.
    Tagged:


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    #2
    the_syco
    Registered Users Posts: 37,295 ✭✭✭✭the_syco


    trishabon wrote: »
    This month the landlord told me he was waiting to move to a new house but the tenants hadn't vacated yet. He asked if I would let him and his 7 month pregnant wife stay for a week or so in exchange for a reduced rent this month.
    Due to lack of lease, and that you let the landlord move back in, I'm afraid you're now a licensee.

    The RTB won't assist you as you're a licensee, and you have no rights.


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    #3
    Fol20
    Registered Users Posts: 3,623 ✭✭✭Fol20


    the_syco wrote: »
    Due to lack of lease, and that you let the landlord move back in, I'm afraid you're now a licensee.

    The RTB won't assist you as you're a licensee, and you have no rights.

    Im not so sure about that. Strange siutation and normally if the ll lives there. You are a licensee however if you have written proof it was only for a week then he might have a case here. I would call threshold to see what they have to say about it


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    #4
    Subutai
    Registered Users Posts: 293 ✭✭Subutai


    the_syco wrote: »
    Due to lack of lease, and that you let the landlord move back in, I'm afraid you're now a licensee.

    The RTB won't assist you as you're a licensee, and you have no rights.

    A lease is not necessary to establish a landlord and tenant relationship. One can be established by oral agreement or by implication. The RTB will look at the character of the arrangement with regard to all of the circumstances in determining whether it is a landlord-tenant relationship or a licencor-licensee relationship (Irish Shell & BP Ltd v. John Costello Ltd [1984] IR 511) and in particular they will look at the intention of the parties at the time of the creation of the agreement (Irish Shell Ltd v Costello Ltd [1981] ILRM 66). They will also look at whether or not the occupant had exclusive use of the dwelling (Smith v Córas Iompair Éireann (CIE) & Iarnród Éireann (Irish Rail) [2002] IEHC 103). Finally they will look at whether or not there was the payment of rent, which is again indicative of a tenancy over a license.

    What will matter is OP's position at the time of her original occupation in the dwelling. From the information provided here, she was quite clearly a tenant who had an oral or implied tenancy agreement characterised by exclusive possession and the payment of rent.

    Irrespective of that, however, her landlord moving back in would not necessarily be sufficient to alter the character of her agreement in any case, even with her agreement (Zhang v. Holohan TR168/2011/DR92/2011)


    Not that it particularly matters for OP. For her what is important is that she clearly had a tenancy, whether oral or implied, before her landlord moved in. This tenancy can only be terminated in specific ways, the landlord moving in is not one of them. A notice of termination is an essential component of the landlord terminating her tenancy and since 1 September 2004 it has not been possible to terminate a tenancy of a dwelling by means of a notice of forfeiture, a re-entry, or any other process or procedure, other than a notice of termination. The landlord attempting to use such means, as he has here, is a violation of s 58(1) of the Residential Tenancies Act 2004.

    In short, turning OP into a licensee requires terminating her tenancy. He has not made any effort to do that in line with the provisions of the act. If it were possible to terminate a tenancy simply by moving in then the security of tenure provided for by Part 4 of the 2004 Act would be set at naught.

    _______________

    OP, if you feel that you are in danger, and none of this is legal advice (which you should seek, try FLAC), but I would go to the RTB. What you need to inform them of is the fact that your landlord has moved into your home, has tried to illegally terminate your tenancy, and is continually violating your rights under s 12(1)(a) of the 2004 Act. Tell them that you feel unsafe now, and that you want an application to be made to the Circuit Court for interim or interlocutory relief in accordance with s 189 of the 2004 Act.

    The dispute itself will take on the order of 8 weeks for adjudication. They may fast track it in your case. If they accept the application under s 189, you could have an injunction within 3-5 days restraining him from entering the property.


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    #5
    godtabh
    Moderators, Science, Health & Environment Moderators Posts: 23,204 Mod ✭✭✭✭godtabh


    Subutai wrote: »
    A lease is not necessary to establish a landlord and tenant relationship. One can be established by oral agreement or by implication. The RTB will look at the character of the arrangement with regard to all of the circumstances in determining whether it is a landlord-tenant relationship or a licencor-licensee relationship (Irish Shell & BP Ltd v. John Costello Ltd [1984] IR 511) and in particular they will look at the intention of the parties at the time of the creation of the agreement (Irish Shell Ltd v Costello Ltd [1981] ILRM 66). They will also look at whether or not the occupant had exclusive use of the dwelling (Smith v Córas Iompair Éireann (CIE) & Iarnród Éireann (Irish Rail) [2002] IEHC 103). Finally they will look at whether or not there was the payment of rent, which is again indicative of a tenancy over a license.

    What will matter is OP's position at the time of her original occupation in the dwelling. From the information provided here, she was quite clearly a tenant who had an oral or implied tenancy agreement characterised by exclusive possession and the payment of rent.

    Irrespective of that, however, her landlord moving back in would not necessarily be sufficient to alter the character of her agreement in any case, even with her agreement (Zhang v. Holohan TR168/2011/DR92/2011)


    Not that it particularly matters for OP. For her what is important is that she clearly had a tenancy, whether oral or implied, before her landlord moved in. This tenancy can only be terminated in specific ways, the landlord moving in is not one of them. A notice of termination is an essential component of the landlord terminating her tenancy and since 1 September 2004 it has not been possible to terminate a tenancy of a dwelling by means of a notice of forfeiture, a re-entry, or any other process or procedure, other than a notice of termination. The landlord attempting to use such means, as he has here, is a violation of s 58(1) of the Residential Tenancies Act 2004.

    In short, turning OP into a licensee requires terminating her tenancy. He has not made any effort to do that in line with the provisions of the act. If it were possible to terminate a tenancy simply by moving in then the security of tenure provided for by Part 4 of the 2004 Act would be set at naught.

    _______________

    OP, if you feel that you are in danger, and none of this is legal advice (which you should seek, try FLAC), but I would go to the RTB. What you need to inform them of is the fact that your landlord has moved into your home, has tried to illegally terminate your tenancy, and is continually violating your rights under s 12(1)(a) of the 2004 Act. Tell them that you feel unsafe now, and that you want an application to be made to the Circuit Court for interim or interlocutory relief in accordance with s 189 of the 2004 Act.

    The dispute itself will take on the order of 8 weeks for adjudication. They may fast track it in your case. If they accept the application under s 189, you could have an injunction within 3-5 days restraining him from entering the property.

    A tenancy with who? Not the actual LL it seems.


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    #6
    Subutai
    Registered Users Posts: 293 ✭✭Subutai


    godtabh wrote: »
    A tenancy with who? Not the actual LL it seems.

    It's not 100% clear from what OP has said, but I am interpreting the post as saying that rent has been paid to the actual landlord who now lives with her.

    If not, then a tenancy still exists between OP and the "lead tenant" - one would need more information as to how/when the lead tenant's tenancy was terminated.


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    #7
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,278 Mod ✭✭✭✭The_Conductor


    Does the owner of the property even know you're present in the property?
    A tenant can seek permission to sublet a property- and if such permission is refused by an owner, the tenant can vacate the tenancy without reprecussions. A tenant cannot however arbitrarily bring in a subtenant without the knowledge of the landlord.

    Its not clear who has moved back into the property here- the person you rented the property from- or the owner of the property? Either way- you're on dodgy grounds- and should never have agreed to allow them stay in the property (if you wished to continue living there).

    Given the confusion here over the status of the person who has moved back in- we can't say whether you're a licensee or a tenant or what rights you now have. Either way- I'd be spending every waking hour trying to source alternate accommodation ASAP.


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    #8
    trishabon
    Registered Users Posts: 53 ✭✭trishabon


    Thank you. It's a great relief to have some constructive advice. I have a meeting with Theshold on Monday morning and shall take notes of what you have said. Much appreciated.


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    #9
    trishabon
    Registered Users Posts: 53 ✭✭trishabon


    The_Conductor wrote: »
    Does the owner of the property even know you're present in the property?
    A tenant can seek permission to sublet a property- and if such permission is refused by an owner, the tenant can vacate the tenancy without reprecussions. A tenant cannot however arbitrarily bring in a subtenant without the knowledge of the landlord.

    Its not clear who has moved back into the property here- the person you rented the property from- or the owner of the property? Either way- you're on dodgy grounds- and should never have agreed to allow them stay in the property (if you wished to continue living there).

    Given the confusion here over the status of the person who has moved back in- we can't say whether you're a licensee or a tenant or what rights you now have. Either way- I'd be spending every waking hour trying to source alternate accommodation ASAP.
    As they say, no good deed goes unpunished. Yes I was really foolish. I have a pending application with social housing on medical grounds that I submitted early January, they lost my tax form, which I discovered when I went to ask for emergency assistance. I have resubmitted my application but when I tried to explain, I was told everyone has problems and I could wait my turn. I am actively seeking alternative accommodation but having a limited budget and recovering from a spinal fusion limits me both physically and financially. If not for the physical aspect (my movement is severely limited, bending, stretching and twisting to be avoided for 12 weeks) I would be out there making the best of this bad situation.


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