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Sub-Letting Query

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  • 30-07-2019 5:23pm
    #1
    The_Fitz
    Registered Users Posts: 329 ✭✭


    Hi folks,

    I have a question for my friend and would appreciate any advice.

    He moved into a 2 bed flat in October 2018. A couple occupy the other room and they rent the whole flat. They sublet the other room to him (with full knowledge and consent of the landlord). My friend pays his rent directly to the couple. Everything has been fine. He has met the landlord on a few occasions. The landlord seems sound, doesn’t appear to be any issues.

    He signed a “Sub Letting Agreement” with the couple. Paid them the deposit. The couple are described as “The Occupant” on the contract.

    The couple are moving out and have sent notice to the landlord that they will vacate at the end of August. They have also stated to the landlord that my friend would like to take the tenancy over. The landlord is happy with this arrangement however has stated that as the tenancy with the couple is now void, a new tenancy needs to be drawn up between the landlord and my friend should he wish to stay on the premises. ‘The new lease will be for renting the apartment on a month by month basis, with either party giving no less than one months notice for vacation of the premises’.
    1. Is this all above board?
    2. I understand that if my friend signs a new contract, after 6 months he will be entitled to a part 4 tenancy?
    3. Is the whole sub letting thing even legal? I can find very little on Google.
    4. Does he have any rights as a sub letter (like already living there for 6 months)? Concerned that his deposit isn’t protected.

    My concern is that the landlord is asking for a monthly periodic tenancy as he plans to boot him out in the next 6 months.

    Thanks for all your help


Comments

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    #2
    dennyk
    Registered Users Posts: 1,643 ✭✭✭dennyk


    Subletting is perfectly legal provided the landlord agrees, which he has in this case, so it's all good. As a subletter living with the master tenant, he is a licensee of the tenant and has very few rights in that respect; the tenant can end the agreement and kick him out at any time with "reasonable" notice (which is generally not very long at all). His deposit isn't a matter for the RTB; it would be a private matter between him and the master tenant and he'd have to bring them to court to recover it if they fail to return it.

    As a licensee of the tenant, your friend has the right to request of the landlord to become a full tenant at any time, and the landlord cannot reasonably refuse the request (and since the landlord gave permission for your friend's sublease and is also willing to enter a tenancy agreement with your friend, he'd have a very difficult time claiming a refusal was reasonable). When your friend becomes a tenant, his tenancy is considered to have begun at the time he began subletting, so October 2018 in this case; this means he will already have acquired Part 4 rights, and the landlord's proposed lease agreement allowing termination by either party with one month's notice is not valid (as the landlord cannot terminate the tenancy without a valid reason, and your friend would be entitled to 90 days notice at least even if the landlord were to terminate for a valid reason under Part 4). Neither the landlord nor the new tenant are obligated to sign any sort of fixed term lease, so it could still simply be a periodic tenancy with no fixed term, but Part 4 protections and the longer notice period based on the length of the tenancy would apply.

    You can read more detailed information here:

    https://www.rtb.ie/media-research/publications/licensees-in-private-rented-accommodation


  • Options
    #3
    The_Fitz
    Registered Users Posts: 329 ✭✭The_Fitz


    Cheers Denny - that's some great info.

    If my friend signs a new contract (as the landlord wishes) does he give up his part 4 rights?

    The landlord wants him to sign a new tenancy that in his mind would enable both parties to give one months notice. I think he shouldn't rock the boat and just sign it.


  • Options
    #4
    dennyk
    Registered Users Posts: 1,643 ✭✭✭dennyk


    The_Fitz wrote: »
    Cheers Denny - that's some great info.

    If my friend signs a new contract (as the landlord wishes) does he give up his part 4 rights?

    The landlord wants him to sign a new tenancy that in his mind would enable both parties to give one months notice. I think he shouldn't rock the boat and just sign it.

    No; he is an existing subtenant in the property, so even if he does not request to become a full tenant before the other tenant leaves, if he took over the tenancy at that point then it would effectively be considered an assignment of the tenancy, and since he is an existing sub-tenant, the original master tenant's Part 4 rights would actually transfer along with the tenancy in that case. Note that this may still be less desirable than requesting to become a tenant himself before the master tenant leaves and gaining Part 4 rights based on the beginning of his own sub-tenancy, though, if the original tenant was coming up on the end of their current Part 4 cycle.

    A lease agreement cannot override statute, so he cannot sign away his rights to the required notice period or security of tenure that he'd have under Part 4 of the RTA. However, to avoid any potential conflict or confusion, it would probably be better to assert his rights up front. It's never a good idea to sign something you don't wish to agree to on the basis that you think it would be unenforceable, because you might be wrong, or it might end up being an expensive hassle to deal with even if you eventually prevail.


  • Options
    #5
    The_Fitz
    Registered Users Posts: 329 ✭✭The_Fitz


    dennyk wrote: »
    No; he is an existing subtenant in the property, so even if he does not request to become a full tenant before the other tenant leaves, if he took over the tenancy at that point then it would effectively be considered an assignment of the tenancy, and since he is an existing sub-tenant, the original master tenant's Part 4 rights would actually transfer along with the tenancy in that case. Note that this may still be less desirable than requesting to become a tenant himself before the master tenant leaves and gaining Part 4 rights based on the beginning of his own sub-tenancy, though, if the original tenant was coming up on the end of their current Part 4 cycle.

    A lease agreement cannot override statute, so he cannot sign away his rights to the required notice period or security of tenure that he'd have under Part 4 of the RTA. However, to avoid any potential conflict or confusion, it would probably be better to assert his rights up front. It's never a good idea to sign something you don't wish to agree to on the basis that you think it would be unenforceable, because you might be wrong, or it might end up being an expensive hassle to deal with even if you eventually prevail.

    Thank you very much.


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