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Former Tenant taking case for wrongful eviction

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  • 31-03-2020 12:33pm
    #1
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭


    Hi all, this is a long one...

    This is not me personally, but an older couple I'm helping:

    Apartment rented to a tenant some years back. He would occasionally be late with rent, and some times would only part-pay etc... It would always take a lot of hassle and chasing up to get rent paid and up to date.

    Anyway, fast forward to early 2019.
    For various reasons the apartment needs to be sold. The tenant was served the correct notice (as directed by the RTB on their website) along with a statutory declaration witnessed by solicitor to say that the tenancy is being terminated due to the owner selling etc. This gave him until November 2019 to find another property.

    The tenant sends a letter back a couple of days later saying that the notice is invalid and that he will not be complying with it; and that he is raising a case with the RTB.

    After a couple of weeks I contact the RTB and enquire as to what has been raised. They confirm that he has challenged the validity of the notice, but he did not give any reason. So they wrote to him asking him to outline why he thinks it is invalid.

    July/August 2019
    The tenant stops paying rent....
    I notify him by letter (registered post & copy by email) that the rent must be paid and that failure to do so constitutes a breach of lease obligations (again, the prescribed format from the RTB).

    No rent is paid, so another eviction notice is sent (registered post & copy by email) with a much sooner date to vacate based on rent being stopped, and no payment following the warning letter.

    I contact the RTB about his initial contact to them. The RTB confirm to me that he never followed up with them, so they have deemed his challenge "withdrawn" - I have notes of call dates & times.

    September / October / November 2019
    The tenant goes completely silent. No response to letters, emails, phone calls.
    Call to the apartment a few times and knock on the door. No response. The owners want to do everything 'by the book' - so conversations about gaining entry are dismissed. The RTB can give no advice on how to proceed in this situation.

    December 2019
    The owners have other more important personal issues to concentrate on so decide to do nothing until the new year. Still no rent.

    Early January 2020
    It's been months since any rent was paid and any contact was made with the tenant. I send another registered letter (copy by email) to say that we must now assume that the property is vacant and we will be taking back possession.

    Late January 2020
    We arrange a locksmith to drill the locks and gain entry. It's obvious that the apartment is still being lived in. While there, 2 women arrive, asking who we are and what we're doing with their apartment. We have no idea who these people are. They are not the tenant, but they are in fact living there. After speaking to them, it becomes apparent that the tenant has been sub-letting the entire apartment to these people for over a year. They have no lease with him, and he calls round in person each month to collect the rent in cash. He was also receiving rent from them which was about €150 per month more than he was paying to the Landlord under the lease.

    The occupants are quite understanding, and I suspect they knew they weren't living there legally in any case. One of them comments "I was wondering why we never heard from him (The actual tenant) to collect rent for January or February".

    In the interest of fairness we decide to give them until the end of February (approx. 4 weeks) to find somewhere else and move out. We tell them we do not want any rent from them at all; but certainly not to pay anything to the tenant either.

    I write to the occupiers by registered letter confirming that they are living there illegally and they must vacate by the end February 2020.

    Early March 2020
    The occupiers complied with everything. They found somewhere else to live, moved out and gave back vacant possession of the apartment. We change the locks again to ensure that we are the only possible people with access.

    We got this all over the line just before the Coronavirus pandemic locked everything down. But the owners are just happy now that they have the property back vacant and can arrange to sell it once this is all over.

    Late March 2020
    The RTB sends a letter to the owners saying that an application for dispute resolution has been made to the RTB based on an illegal eviction; and that the RTB shall hold a hearing in order to adjudicate on the matter!

    I have a file of all letters & registered post details, emails & phone calls relating to this property, and I'm sure everything was handled in the correct way. I'm unsure whether this adjudication hearing is a new complaint by the tenant, or simply an oversight by the RTB on the initial complaint being deemed 'withdrawn'.

    Will call them to follow up; but just wanted to get other opinions here from property owners who may have been in a similar situation before, or who have had to go to an RTB adjudication process?


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    #2
    antoinolachtnai
    Registered Users Posts: 9,776 ✭✭✭antoinolachtnai


    I think you should get a solicitor.

    The main thing here is that this complaint doesn’t obstruct a sale. Your friends will need a solicitor to sell in any case so the sooner they get that professional help, the better.

    Based on the facts you have stated I would say that the way in which those facts are presented in the adjudication are very important. You really need the benefit of professional advocacy.


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


    Why did you need to drill the locks? Who is complaining of illegal eviction? The tenants or the sub-tenants?


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    #4
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    Claw Hammer wrote: »
    Why did you need to drill the locks? Who is complaining of illegal eviction? The tenants or the sub-tenants?

    Needed to drill the locks because that's the only way we could get into the apartment. The keys the owner had suddenly weren't working any more since someone had changed the locks.

    The sub-tenants left with no problem. They got to stay there rent-free for at least 2 months that we know of. They had no lease and we never knew of their existence so there was no way they had permission to live there. It's the tenant complaining of illegal eviction.


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    #5
    Cuddlesworth
    Registered Users Posts: 13,981 ✭✭✭✭Cuddlesworth


    Mckenna Hollow Telephone wrote: »
    It's the tenant complaining of illegal eviction.

    He's probably going to win too. You didn't evict him legally, you drilled the locks. Until you evict him, its his apartment.

    Better hope you can get the two women to testify at a RTB hearing.


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    #6
    BrokenArrows
    Registered Users Posts: 7,500 ✭✭✭BrokenArrows


    Mckenna Hollow Telephone wrote: »
    Needed to drill the locks because that's the only way we could get into the apartment. The keys the owner had suddenly weren't working any more since someone had changed the locks.

    The sub-tenants left with no problem. They got to stay there rent-free for at least 2 months that we know of. They had no lease and we never knew of their existence so there was no way they had permission to live there. It's the tenant complaining of illegal eviction.

    You will have a problem because you were drilling the locks in a property where you knew someone was still living. It turned out that it wasn't the original tenant, but you did not know that.

    You need professional advice here.


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    #7
    loyatemu
    Registered Users Posts: 14,795 ✭✭✭✭loyatemu


    BrokenArrows wrote: »
    You will have a problem because you were drilling the locks in a property where you knew someone was still living.

    they didn't know someone was living there - the tenant never responded to their registered letters, what else can they do, wait forever? They only realised there was someone (else) living there when they got inside.


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    #8
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    loyatemu wrote: »
    they didn't know someone was living there - the tenant never responded to their registered letters, what else can they do, wait forever? They only realised there was someone (else) living there when they got inside.

    Yes, we sent a registered letter (and copy by email) to say that since we have had no correspondence in months despite numerous attempts to contact the tenant, we had to assume that the property was vacant. That letter came back after a couple of weeks as 'undelivered' from An Post.

    Also, I should say that we did in fact give new keys to the illegal subtenants once we realised they were living there... They they handed them back over when they left.


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    #9
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    BrokenArrows wrote: »
    You will have a problem because you were drilling the locks in a property where you knew someone was still living. It turned out that it wasn't the original tenant, but you did not know that.

    You need professional advice here.

    We didn't know anyone was living there. We had zero contact from the tenant for months, despite numerous attempts to contact him.

    We provided new keys to the illegal subtenants and they handed them back when they left.


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    #10
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    Mckenna Hollow Telephone wrote: »
    Needed to drill the locks because that's the only way we could get into the apartment. The keys the owner had suddenly weren't working any more since someone had changed the locks.

    The sub-tenants left with no problem. They got to stay there rent-free for at least 2 months that we know of. They had no lease and we never knew of their existence so there was no way they had permission to live there. It's the tenant complaining of illegal eviction.

    You will be able to defend the case but it is a situation where skilled legal advice and assistance would be necessary.


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    #11
    Ap2020
    Registered Users Posts: 39 ✭Ap2020


    Where ye went wrong was in September to December 2019. The RTB were never going to advise you as to what to do next, that is not their role and they are not indemnified against offering legal advice.

    What you should have done, in my opinion, is brought a dispute against the tenant to the RTB to seek a determination order endorsing the eviction notice. If the tenant didn't show up to the adjudication (and potentially a tribunal) you get your order. If they still don't comply, you get an enforcement order from the District Court and you get the sheriff to evict on foot of that.

    You need to talk to a solicitor and get representation, because technically this was an illegal eviction. Given that you had cause to believe he had vacated the property you might be OK, but you need to get someone who can advise on your particular situation as you have complicated matters by not going by the book.


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    #12
    Browney7
    Registered Users Posts: 3,099 ✭✭✭Browney7


    Technically an illegal eviction of someone who would have been legally evicted months previously. Once OP has sent arrears notice and termination of tenancy for not remedying arrears, the original tenant will get little or no recompense here. Tenant owes the OP thousands so any "fine" for illegal eviction won't surpass this. I wouldn't be too worried if I was them once they engage a solicitor and have their ducks in a row.


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    #13
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    Ap2020 wrote: »
    Where ye went wrong was in September to December 2019. The RTB were never going to advise you as to what to do next, that is not their role and they are not indemnified against offering legal advice.

    What you should have done, in my opinion, is brought a dispute against the tenant to the RTB to seek a determination order endorsing the eviction notice. If the tenant didn't show up to the adjudication (and potentially a tribunal) you get your order. If they still don't comply, you get an enforcement order from the District Court and you get the sheriff to evict on foot of that.

    You need to talk to a solicitor and get representation, because technically this was an illegal eviction. Given that you had cause to believe he had vacated the property you might be OK, but you need to get someone who can advise on your particular situation as you have complicated matters by not going by the book.

    Thanks for the insight. Since I've never been down this road before, any idea how long it would likely have taken to get the determination order and/or enforcement order from the District Court?

    Also, since the tenant hadn't been living there himself in some time, and the illegal subtenants willingly walked out the door and handed keys back to us - providing us with vacant possession - I can't see how the tenant has a leg to stand on here?
    Not to mention the fact the original eviction notice date had already long-since passed and he was paying no rent for the best part of a year...?


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    #14
    Sarn
    Registered Users Posts: 3,061 ✭✭✭Sarn


    Would the fact that the tenant was no longer living there (as evidenced by the new tenants) be an additional mitigating factor?


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    #15
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    Browney7 wrote: »
    Technically an illegal eviction of someone who would have been legally evicted months previously. Once OP has sent arrears notice and termination of tenancy for not remedying arrears, the original tenant will get little or no recompense here. Tenant owes the OP thousands so any "fine" for illegal eviction won't surpass this. I wouldn't be too worried if I was them once they engage a solicitor and have their ducks in a row.

    We do have all 'ducks in a row' - regarding records of every registered letter sent, every email copy of registered letters, and file notes of the phone calls to the RTB where they told us the initial complaint had been deemed withdrawn.


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    #16
    Claw Hammer
    Registered Users Posts: 6,163 ✭✭✭Claw Hammer


    Ap2020 wrote: »
    Where ye went wrong was in September to December 2019. The RTB were never going to advise you as to what to do next, that is not their role and they are not indemnified against offering legal advice.

    What you should have done, in my opinion, is brought a dispute against the tenant to the RTB to seek a determination order endorsing the eviction notice. If the tenant didn't show up to the adjudication (and potentially a tribunal) you get your order. If they still don't comply, you get an enforcement order from the District Court and you get the sheriff to evict on foot of that.

    You need to talk to a solicitor and get representation, because technically this was an illegal eviction. Given that you had cause to believe he had vacated the property you might be OK, but you need to get someone who can advise on your particular situation as you have complicated matters by not going by the book.

    It may not be a illegal eviction. There is a defence of abandonment.


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    #17
    EagerBeaverton
    Registered Users Posts: 63 ✭✭EagerBeaverton


    Totally on your side with this OP but...
    Mckenna Hollow Telephone wrote: »
    That letter came back after a couple of weeks as 'undelivered' from An Post.

    Probably should have checked the tracking code to verify it had been delivered before entering the house. Not being smart but if two people were in the property I'd assume looking through a window on the ground floor would have shown some items inside that would indicate it was still lived in.


    From Threshold.ie about what happens when a tenant is sent notice to leave: "If you do not leave your landlord cannot remove you or your belongings from the property. They have to refer a dispute to the RTB and the RTB can order you to vacate and you could face having to pay damages to the landlord for not leaving."
    Ap2020 wrote: »
    Where ye went wrong was in September to December 2019. The RTB were never going to advise you as to what to do next, that is not their role and they are not indemnified against offering legal advice.

    What you should have done, in my opinion, is brought a dispute against the tenant to the RTB to seek a determination order endorsing the eviction notice. If the tenant didn't show up to the adjudication (and potentially a tribunal) you get your order. If they still don't comply, you get an enforcement order from the District Court and you get the sheriff to evict on foot of that.

    You need to talk to a solicitor and get representation, because technically this was an illegal eviction. Given that you had cause to believe he had vacated the property you might be OK, but you need to get someone who can advise on your particular situation as you have complicated matters by not going by the book.

    ^^^This is what probably needed to be done.
    Mckenna Hollow Telephone wrote: »
    ...the illegal subtenants willingly walked out the door and handed keys back to us - providing us with vacant possession - I can't see how the tenant has a leg to stand on here?

    Do you have any contact details for these people? They did nothing wrong as it's the landlord's duty to register with the RTB so their input would be key in showing the 'proper' tenant wasn't even living there.


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    #18
    Ap2020
    Registered Users Posts: 39 ✭Ap2020


    Claw Hammer wrote: »
    It may not be a illegal eviction. There is a defence of abandonment.

    For sure, but you need to be able to put forward the defence. One would need more detail, and one also doesn't know what the other side are going to claim.

    Most things in this area are reasonably straightforward, but once you deviate from the beaten path I think continuing to walk down it without a guide is foolish.


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    #19
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    EagerBeaverton wrote: »
    Totally on your side with this OP but...
    Probably should have checked the tracking code to verify it had been delivered before entering the house. Not being smart but if two people were in the property I'd assume looking through a window on the ground floor would have shown some items inside that would indicate it was still lived in.

    The registered letter could not be delivered as there was nobody to sign for it and nobody went to An Post in the following days to collect it.

    It is an apartment, not a house, It's a 3rd floor apartment with a solid timber door... therefore there was no way to know what was going on inside without gaining access.

    EagerBeaverton wrote: »
    Do you have any contact details for these people? They did nothing wrong as it's the landlord's duty to register with the RTB so their input would be key in showing the 'proper' tenant wasn't even living there.
    I do have a phone number for these people. But, I'm not so sure whether they would cooperate since they had to leave their accommodation, albeit from the tenant's illegal activity. The tenant and the people living in the apartment are from the same country - and I'm just uneasy about whether they would want to take 'our' side...


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    #20
    EagerBeaverton
    Registered Users Posts: 63 ✭✭EagerBeaverton


    Mckenna Hollow Telephone wrote: »
    The registered letter could not be delivered as there was nobody to sign for it and nobody went to An Post in the following days to collect it.

    Look I'm totally with you on this and tenants like that are a curse, it's just as Ap2020 mentioned above that your best defense is being able to show you followed the procedures. Technically the ar$ehole tenant could claim he was away at the time and wasn't there at the time that letter was sent so had no idea you were deeming the property as being vacated.
    Mckenna Hollow Telephone wrote: »
    It is an apartment, not a house, It's a 3rd floor apartment with a solid timber door... therefore there was no way to know what was going on inside without gaining access.

    That's fair enough, you're safe there so.
    Mckenna Hollow Telephone wrote: »
    I do have a phone number for these people. But, I'm not so sure whether they would cooperate since they had to leave their accommodation, albeit from the tenant's illegal activity. The tenant and the people living in the apartment are from the same country - and I'm just uneasy about whether they would want to take 'our' side...

    The locksmith was there at the time these two arrived 'home'? The locksmith could also provide a statement indicating he was witness to the conversation that indicated two others were living in the property.

    I'm only thinking of potential solutions here but it's a solicitor who will tell you what would be 'admissible' as valid evidence.


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    #21
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    EagerBeaverton wrote: »
    Look I'm totally with you on this and tenants like that are a curse, it's just as Ap2020 mentioned above that your best defense is being able to show you followed the procedures. Technically the ar$ehole tenant could claim he was away at the time and wasn't there at the time that letter was sent so had no idea you were deeming the property as being vacated.

    Yes he could try; which is why I scanned every registered letter that was posted to him and emailed him a scanned copy also. I know the email address is correct as he sent me an email at the very beginning of the whole process back in early 2019.
    EagerBeaverton wrote: »
    The locksmith was there at the time these two arrived 'home'? The locksmith could also provide a statement indicating he was witness to the conversation that indicated two others were living in the property.

    I'm only thinking of potential solutions here but it's a solicitor who will tell you what would be 'admissible' as valid evidence.

    Good idea - we could talk to the locksmith also.
    I also wrote to the illegal subtenants following our discovery that they were living there (by registered post & copy by email as well) to put on the record that we informed them that they were illegal tenants. We even gave them the new key once we changed the lock and allowed them a further 4 weeks in the property, rent-free, in order to source alternative accommodation.

    We couldn't have been any fairer about the whole thing.


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    #22
    Ap2020
    Registered Users Posts: 39 ✭Ap2020


    EagerBeaverton wrote: »
    Look I'm totally with you on this and tenants like that are a curse, it's just as Ap2020 mentioned above that your best defense is being able to show you followed the procedures. Technically the ar$ehole tenant could claim he was away at the time and wasn't there at the time that letter was sent so had no idea you were deeming the property as being vacated.



    That's fair enough, you're safe there so.



    The locksmith was there at the time these two arrived 'home'? The locksmith could also provide a statement indicating he was witness to the conversation that indicated two others were living in the property.

    I'm only thinking of potential solutions here but it's a solicitor who will tell you what would be 'admissible' as valid evidence.


    Yep, this is completely why you want a solicitor. For example, the RTB won't allow the locksmith to give testimony as to the content of a conversation he heard.


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    #23
    EagerBeaverton
    Registered Users Posts: 63 ✭✭EagerBeaverton


    Mckenna Hollow Telephone wrote: »
    We couldn't have been any fairer about the whole thing.

    Anyone with a nut in their head would side with you on this.

    He will have no evidence (e.g. no registered letters to you) to show he made any effort to resolve the situation. Only thing he did was submit a letter to the RTB about the original notice but he didn't follow it up so it was withdrawn.

    And actually to go against what I said earlier, you could claim the fact that the last letter was returned as undelivered was a further indication that would allow you to assume the property had been vacated.


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    #24
    Ray Palmer
    Registered Users Posts: 8,364 ✭✭✭Ray Palmer


    Should have the Gardai invesrigate the guy for fraud. He didn't sub let the place he conned them out of money falsely representing himself as the owner.


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    #25
    Gloomtastic!
    Registered Users Posts: 8,351 ✭✭✭Gloomtastic!


    Ray Palmer wrote: »
    Should have the Gardai invesrigate the guy for fraud. He didn't sub let the place he conned them out of money falsely representing himself as the owner.

    And The Revenue would like their little piece of his ill-gotten gains. Report him to them as well.


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    #26
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    EagerBeaverton wrote: »
    And actually to go against what I said earlier, you could claim the fact that the last letter was returned as undelivered was a further indication that would allow you to assume the property had been vacated - though the undelivered notification arrived after you had entered the property so maybe not...

    Sorry, just to be clear on the letter and us entering the property....

    I sent the letter by registered post & email saying that since we had not heard from the tenant or received rent in a number of months, we must assume that the property is vacant.

    The letter then returned to us undelivered after a couple of weeks.... only then did we gain access ourselves. Not before the letter returned to us.


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    #27
    az2wp0sye65487
    Closed Accounts Posts: 1,931 ✭✭✭az2wp0sye65487


    Gloomtastic! wrote: »
    And The Revenue would like their little piece of his ill-gotten gains. Report him to them as well.

    Proving all of that would be difficult I'd imagine. He gave the subtenants no lease and was collecting the rent from them in cash.


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    #28
    handlemaster
    Registered Users Posts: 6,003 ✭✭✭handlemaster


    Gloomtastic! wrote: »
    And The Revenue would like their little piece of his ill-gotten gains. Report him to them as well.

    Little chance of investigation . But if it was the landlord in the wrong the PRTB would have in the papers the case and how they beat the nasty landlord. Nothing in it for them here.


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    #29
    m5ex9oqjawdg2i
    Closed Accounts Posts: 11,221 ✭✭✭✭m5ex9oqjawdg2i


    Christ on a bike, and there's call for tenants to have even MORE rights? 9 months of lost rent, while the owners still have to foot bills. Absolutely criminal laws in Ireland, it really is disgusting.


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    #30
    enricoh
    Registered Users Posts: 4,850 ✭✭✭enricoh


    Jaylee Young Rhinoceros wrote: »
    Christ on a bike, and there's call for tenants to have even MORE rights? 9 months of lost rent, while the owners still have to foot bills. Absolutely criminal laws in Ireland, it really is disgusting.

    Landlords are voting with there feet, just as well it didn't drag on into March - all evictions are now illegal until coronavirus is sorted.
    There'll be some shenanigans between now and then ,and a stampede for the door once it lifts!


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    #31
    roper1664
    Registered Users Posts: 228 ✭✭roper1664


    enricoh wrote: »
    Landlords are voting with there feet, just as well it didn't drag on into March - all evictions are now illegal until coronavirus is sorted.
    There'll be some shenanigans between now and then ,and a stampede for the door once it lifts!

    Stories like these would put anyone off ever being a landlord. And I will never be one. I think you're right, i'd imagine a fair amount of landlords will sell their rental properties, as soon as they get the chance.


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