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entering a property after eviction notice

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  • 27-04-2017 5:12pm
    #1
    [Deleted User]
    Posts: 13,712 ✭✭✭✭


    My Mum is the landlord of a house in the local town where there is a woman living. This woman's kids stay with her quite often too but as far as we know, mainly live with their father.

    Rent hasn't been paid in 8 months and as soon as my mum became aware of this, about 3 months ago, she followed all the PRTB advice on how to give notice to quit. The eviction was supposed to be last week, but the tenant has not answered phone calls or responded. My Mum has been reluctant to confront this lady and is giving her a few more days' grace period.

    I had planned to drive down this weekend and just enter the house with our key. But my sister is a solicitor over in the UK and says that, over there, I'd be acting unlawfully and that I should instead go through the local solicitor.

    Is this for real? All notices have been sent by registered post and also hand delivered through the door (she never opens the door).

    Nobody wants to turf this woman out, she's divorced and she has kids, but can we really not enter the property? We've never had any problem like this before. This house is my mum's pension and she's already down a significant amount of money which she's not even going to attempt to get back, she just wants access to her property.

    Thanks.


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    #2
    davo10
    Closed Accounts Posts: 6,926 ✭✭✭davo10


    Are you sure she is still there? If you think she is not, then you can always say that you believed the house to be empty as the notice is up. But you certainly can not enter it while she is in it, she could call the Gardai as you would be trespassing and you are not even the owner. If she digs in, prepare yourself for a long, head wrecking and expensive standoff. You might have to pay her to leave.


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    #3
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    davo10 wrote: »
    Are you sure she is still there? If you think she is not, then you can always say that you believed the house to be empty as the notice is up.
    Yes. The car is there but she never answers, even when the lights and the TV are on.

    Does it make a difference if it's my mum or me? My Mum is the owner but she's nearly 70 and doesn't need this aggro and is a big softy anyway

    Do you know what specific law we'd be breaking? Trespass on a property is it? Surely the tenant is the one trespassing on the property?!


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    #4
    beauf
    Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    Probably intimidation. What did the PRTB say?


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    #5
    seamus
    Registered Users Posts: 68,317 ✭✭✭✭seamus


    It's civil trespass, but it's also in violation of the residential tenancies act.

    It's your mother's property, but it's not her home. The resident has the right to security of their home regardless of any contractual disputes with the landlord.

    I know the arguments for and against, but ultimately the law is stacked in the resident's favour because the right to a roof over the resident's head trumps the landlord's right to access their property.

    If you enter the property without permission you may jeopardise any further proceedings you might require to physically get the tenant out.

    Have a letter pre-prepared which makes reference (time and date) to the correspondence previously issued and the tenant's failure to respond to this correspondence, failure to engage and failure to vacate the property. The letter should state that if she does not respond within 48 hours, it will be assumed that the property has been vacated and you will enter it with the intention of retaking possession.

    Knock on the door, if she doesn't answer it, you deliver the letter.

    If she doesn't respond to the letter, you enter after 48 hours.

    If she does respond to the letter, you arrange a time to come and inspect the property. Do not engage her over the phone, too easy for everyone to misread the situation.

    There's a good chance you'll find a woman in there who's just ignoring the problem and hoping it will go away. You cannot physically remove her. The Gardai will not help you physically remove her without a court order.

    Speak to her as a rational human being and try to find a way that gets her out as soon as possible. If you're aggressive or threatening, again this will play against you if you need to take the process further.

    If she's digging her heels in, you will need to go down the court route.

    If you physically evict her, even just be removing her stuff when she's out and changing the locks, your mother could be on the end of a criminal conviction and a large fine.


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    #6
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    A Tyrant Named Miltiades! wrote: »
    The eviction was supposed to be last week, but the tenant has not answered phone calls or responded.

    Thanks.

    What do you mean by eviction. Do you mean that the notice period has expired? Eviction means the Sheriff shows up and physically puts her out.
    If the notice period has expired and the tenant has notr left a dispute has to be opened with the RTB.
    If you have served a notice to quit you will lose the case.


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    #7
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    4ensic15 wrote: »
    What do you mean by eviction. Do you mean that the notice period has expired?
    Yes. Two notices were delivered (non payment, and final warning) and the third (please leave by the 21st April) have all expired.

    I don't see how we would possibly lose the case?

    All my mum wants is no hassle (she's not even asking for backpayment).

    We just want the house vacated asap to get a new tenant. All I want to know is how to do that as quickly and legally as possible.

    Following Seamus's advice Ive sent a text message and a WhatsApp to the tenant to say I want to enter on Saturday evening and if she doesn't reply I will assume she has left. No reply received so I intend to just enter if she doesn't get back to me.


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    #8
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    A Tyrant Named Miltiades! wrote: »
    Yes. Two notices were delivered (non payment, and final warning) and the third (please leave by the 21st April) have all expired.

    I don't see how we would possibly lose the case?

    All my mum wants is no hassle (she's not even asking for backpayment).

    We just want the house vacated asap to get a new tenant. All I want to know is how to do that as quickly and legally as possible.

    Following Seamus's advice Ive sent a text message and a WhatsApp to the tenant to say I want to enter on Saturday evening and if she doesn't reply I will assume she has left. No reply received so I intend to just enter if she doesn't get back to me.

    You will lose if you served a notice to quit. You now have to apply to the RTB for an order directing the tenant to leave on the grounds of overholding.
    You should first have your notice to quit checked by a specialist lawyer. If it is flawed you will be refused an order and you will have to start again.
    You obviously do not have a clue and each mistake will be costly in terms of time and money.


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    #9
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    4ensic15 wrote: »
    You obviously do not have a clue and each mistake will be costly in terms of time and money.
    I've seen the letter ky sister drafted and it says "notice of termination". I used the term "notice to quit" here, since I assume it's the same thing.

    No, I don't have a clue, because my late father used to take care of these issues and knew what he was doing. We are trying oir best not to make a mistake, and there's no need to be sanctimonious. I'm just asking for others' experiences and practical advice.

    I'm hardly going to in and turf the tenant's stuff into the street, so I fail to see what we will "lose" tbh. I want to see the property and ask the tenant what she thinks is the point of all this.


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    #10
    lucernarian
    Registered Users Posts: 9,235 ✭✭✭lucernarian


    4ensic15 wrote: »
    You will lose if you served a notice to quit. You now have to apply to the RTB for an order directing the tenant to leave on the grounds of overholding.
    You should first have your notice to quit checked by a specialist lawyer. If it is flawed you will be refused an order and you will have to start again.
    You obviously do not have a clue and each mistake will be costly in terms of time and money.
    I know you have some good points but jeez you could be more polite about it.


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    #11
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    A Tyrant Named Miltiades! wrote: »
    I've seen the letter ky sister drafted and it says "notice of termination". I used the term "notice to quit" here, since I assume it's the same thing.

    No, I don't have a clue, because my late father used to take care of these issues and knew what he was doing. We are trying oir best not to make a mistake, and there's no need to be sanctimonious. I'm just asking for others' experiences and practical advice.

    I'm hardly going to in and turf the tenant's stuff into the street, so I fail to see what we will "lose" tbh. I want to see the property and ask the tenant what she thinks is the point of all this.

    the reason you don't have a clue is irrelevant. You won't understand other peoples experiences. You are already losing rent. You can be fined by the RTB for acting on foot of an invalid notice. There is a very high chance your notice is invalid if you completed it with your current state of knowledge. You need professional advice.


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    #12
    SteM
    Registered Users Posts: 6,604 ✭✭✭SteM


    A Tyrant Named Miltiades! wrote: »
    I've seen the letter ky sister drafted and it says "notice of termination". I used the term "notice to quit" here, since I assume it's the same thing.

    No, I don't have a clue, because my late father used to take care of these issues and knew what he was doing. We are trying oir best not to make a mistake, and there's no need to be sanctimonious. I'm just asking for others' experiences and practical advice.

    I'm hardly going to in and turf the tenant's stuff into the street, so I fail to see what we will "lose" tbh. I want to see the property and ask the tenant what she thinks is the point of all this.

    The advice you've been given on the thread already is not to enter yet your last post said you around be entering of you didn't hear back from the tenant. This might be a long process, don't make it longer by doing something stupid.


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    #13
    JigglyMcJabs
    Registered Users Posts: 112 ✭✭JigglyMcJabs


    A Tyrant Named Miltiades! wrote: »
    I've seen the letter ky sister drafted and it says "notice of termination". I used the term "notice to quit" here, since I assume it's the same thing.

    No, I don't have a clue, because my late father used to take care of these issues and knew what he was doing. We are trying oir best not to make a mistake, and there's no need to be sanctimonious. I'm just asking for others' experiences and practical advice.

    I'm hardly going to in and turf the tenant's stuff into the street, so I fail to see what we will "lose" tbh. I want to see the property and ask the tenant what she thinks is the point of all this.

    I don't think he was being sanctimonious, this is a massive legal minefield, whatever you think you can do, whatever seems like the logical thing to do, don't do it. You can easily end up on the wrong side of the law, risk criminal conviction in the worst case and most definitely lose a lot if money. Get a solicitor who deals with this stuff and take their advice.


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    #14
    jimmycrackcorm
    Registered Users Posts: 14,331 ✭✭✭✭jimmycrackcorm


    A Tyrant Named Miltiades! wrote:
    All my mum wants is no hassle (she's not even asking for backpayment).


    She should demand it anyway because the law is stacked against her and the likelihood is that it'll take the guts of a year fire the RTB to allow her to get the tenant out.

    Go through multiple threads here and then see if you're mum should still be a landlord out simply sell.


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    #15
    SteM
    Registered Users Posts: 6,604 ✭✭✭SteM


    Also, whatsapp and SMS are not the way to contact a tenant in this situation. All they have to say is they had no credit or Internet access to message you back.


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    #16
    GarIT
    Registered Users Posts: 8,671 ✭✭✭GarIT


    A Tyrant Named Miltiades! wrote: »
    I'm hardly going to in and turf the tenant's stuff into the street, so I fail to see what we will "lose" tbh. I want to see the property and ask the tenant what she thinks is the point of all this.

    If you go into the house without a court order or being able to prove you "genuinely believed the property was vacant" you stand to loose €10,000 if you are lucky.

    Without a court order, you or your mother have no right to enter the property and will owe the tenant 5 figures in compensation for entering the property. It is really ****ty, it's one of the reasons many landlords only rent to certain people and IMO landlords should be able to give 24 hours notice once a rent payment has been missed but that's the way it is.

    Not too long ago I saw a landlord having to pay the tenant €20k in compensation for changing the locks even though no rent had been paid in a year. You need to follow the law to the letter. Until the PRTB have made a judgement you have no right to enter the house and the tenant has many rights to prevent you entering.


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    #17
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    4ensic15 wrote: »
    . You won't understand other peoples experiences.
    I'm not sure of the basis upon which you have formed that opinion. I don't understand the need to be so antagonistic either; how about you just ignore my question and I'll stop reading your replies, deal? Then we will both be happy.
    SteM wrote: »
    The advice you've been given on the thread already is not to enter yet your last post said you around be entering of you didn't hear back from the tenant.
    The advice was to enter, after giving notice of inspection. I've seen the lease and there is no mention of how notice is to be effected, but...
    SteM wrote: »
    Also, whatsapp and SMS are not the way to contact a tenant in this situation. All they have to say is they had no credit or Internet access to message you back.
    The reason Ive used WhatsApp is I can see she has read the message and I can see she's been online since, up until fifteen minutes ago.

    I am not an expert on landlord & tenant law by any means, but I do know something about effecting service and I did enquire about this prior to doing so, and it seems to me to be highly unlikely that this is an invalid method of delivery, and I intend to adhere to the very helpful advice that was given by Seamus.


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    #18
    GarIT
    Registered Users Posts: 8,671 ✭✭✭GarIT


    A Tyrant Named Miltiades! wrote: »
    I've seen the lease and there is no mention of how notice is to be effected, but...

    The reason Ive used WhatsApp is I can see she has read the message and I can see she's been online since, up until fifteen minutes ago.

    I am not an expert on landlord & tenant law by any means, but I do know something about effecting service and I did enquire about this prior to doing so, and it seems to me to be highly unlikely that this is an invalid method of delivery, and I intend to adhere to the very helpful advice that was given by Seamus.

    As far as I know all notice of anything must be on paper. Notice is not valid if issued via email.

    http://www.citizensinformation.ie/en/housing/renting_a_home/if_your_landlord_wants_you_to_leave.html
    According to citizens advice, it is illegal to issue any notice via text, email, or speech.


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    #19
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    A Tyrant Named Miltiades! wrote: »
    The advice was to enter, after giving notice of inspection. I've seen the lease and there is no mention of how notice is to be effected, but...

    Do not do this unless you have taken proper professional legal advice. Sorry fellow posters but if the OP gets this wrong it could be very expensive.

    Sadly OP, you have no right to enter the property. The legal course of action if through the RTB but whatever you do don't take the advice of a random internet post like this.

    Seek professional advice.


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    #20
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    GarIT wrote: »
    As far as I know all notice of anything must be on paper. Notice is not valid if issued via email.

    http://www.citizensinformation.ie/en/housing/renting_a_home/if_your_landlord_wants_you_to_leave.html
    According to citizens advice, it is illegal to issue any notice via text, email, or speech.
    That only applies to a Notice of Termination, which has already been done in the proper manner.

    There are no fixed rules about notices of inspection, but electronic methods have previously been upheld as sufficient in the Irish Superior Courts and I would consider a WhatsApp message to in fact be more reliable than leaving a Notice of Inspection under the door, during which time tenant may easily be away from the property.


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    #21
    [Deleted User]
    Posts: 0 ✭ [Deleted User]


    GarIT wrote: »
    If you go into the house without a court order or being able to prove you "genuinely believed the property was vacant" you stand to loose ?10,000 if you are lucky.

    Without a court order, you or your mother have no right to enter the property and will owe the tenant 5 figures in compensation for entering the property. It is really ****ty, it's one of the reasons many landlords only rent to certain people and IMO landlords should be able to give 24 hours notice once a rent payment has been missed but that's the way it is.

    Not too long ago I saw a landlord having to pay the tenant ?20k in compensation for changing the locks even though no rent had been paid in a year. You need to follow the law to the letter. Until the PRTB have made a judgement you have no right to enter the house and the tenant has many rights to prevent you entering.

    10k for entering? Nonsense.

    I know what I'd do if I was the op but I'll keep that to myself.


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    #22
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    Graham wrote: »
    Do not do this unless you have taken proper professional legal advice. Sorry fellow posters but if the OP gets this wrong it could be very expensive.

    Sadly OP, you have no right to enter the property. The legal course of action if through the RTB but whatever you do don't take the advice of a random internet post like this.

    Seek professional advice.
    Get legal advice before inspecting the property on 48 hour notice?

    My sister is a solicitor and has indeed advised to engage the services of a local solicitor but that's on the question of an RTB determination and/or court order.

    Paying a solicitor to advise on how to inspect a property surely seems like overkill to most landlords here. I'm not downplaying the seriousness of doing it wrongly, but this is hardly rocket science.


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    #23
    GarIT
    Registered Users Posts: 8,671 ✭✭✭GarIT


    A Tyrant Named Miltiades! wrote: »
    That only applies to a Notice of Termination, which has already been done in the proper manner.

    There are no fixed rules about notices of inspection, but electronic methods have previously been upheld as sufficient in the Irish Superior Courts and I would consider a WhatsApp message to in fact be more reliable than leaving a Notice of Inspection under the door, during which time tenant may easily be away from the property.

    You are correct but just be careful, in some cases landlords have lost the property over a simple mistake.

    What do you hope to gain from the inspection? All you can do is walk around the house and look for damage, anything else and you'll be facing huge compensation claims.

    https://www.rtb.ie/dispute-resolution/dispute-resolution/the-three-stages-of-a-tenancy/inspections
    From that link the tenant needs to agree with you on a time of inspection, if the tenant does not agree a time of inspection you can issue a notice of termination but you cannot inspect the property without the tenant's permission.


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    #24
    GarIT
    Registered Users Posts: 8,671 ✭✭✭GarIT


    Dexter Wet Locomotive wrote: »
    10k for entering? Nonsense.

    I know what I'd do if I was the op but I'll keep that to myself.

    Not for entering but if he tries to get the tenant out somehow it's reasonably realistic.

    Personally, me too.


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    #25
    Graham
    Moderators, Society & Culture Moderators Posts: 17,642 Mod ✭✭✭✭Graham


    A Tyrant Named Miltiades! wrote: »
    Paying a solicitor to advise on how to inspect a property surely seems like overkill to most landlords here. I'm not downplaying the seriousness of doing it wrongly, but this is hardly rocket science.

    You would think wouldn't you.

    There's a very good chance you'd discover you were wrong while facing a notoriously pro-tenant RTB hearing.

    If you think it's unpleasant dealing with an overholding tenant, imagine how it would feel if you then had to pay said tenant compensation.


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    #26
    [Deleted User]
    Posts: 13,712 ✭✭✭✭ [Deleted User]


    Graham wrote: »
    You would think wouldn't you.

    There's a very good chance you'd discover you were wrong while facing a notoriously pro-tenant RTB hearing.

    If you think it's unpleasant dealing with an overholding tenant, imagine how it would feel if you then had to pay said tenant compensation.
    You make a very sensible point. I'll leave off on inspecting the place on Saturday and talk to a solicitor in the town.

    Can't believe this state of affairs tbh. None of us want to put this lady out on the street obviously...but if she would only engage or tell us when she will go. There's plenty of social housing in that part of Ireland.

    It's very unfair on landlords to leave them at the mercy of tenants in this way. I see this as being no different to walking into a supermarket and making off with groceries. Yes we all need food and shelter to live, but some of us need to make a living to live too!

    Thanks for your advice, and to Seamus and the others who have advised too.


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    #27
    4ensic15
    Banned (with Prison Access) Posts: 4,691 ✭✭✭4ensic15


    A Tyrant Named Miltiades! wrote: »
    That only applies to a Notice of Termination, which has already been done in the proper manner.

    .

    It also applies to a notice of breach of condition. You are not qualified to say that the Notice of Termination was done in the proper manner. Given that you called it a Notice to Quit, there is a high chance it is not valid. If a tenant refuses an inspection it is a breach of the terms of the lease. The only remedy is to complain to the RTB after serving a warning notice in writing. There are solicitors who have to get specialist barristers to deal with their own rental properties. Very few are capable of advising properly in this area. A high Court judge has commented that the legislation is complicated and that was in 2007 before myriad complications were introduced in subsequent legislation.


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    #28
    jamesthepeach
    Registered Users Posts: 992 ✭✭✭jamesthepeach


    Op i really feel for you.
    It's a sad thing to say that once you rent your property to someone else it is really no longer yours.
    The tenant can drag this out for years and there is nothing you can do but spend money and lose money.
    Meanwhile it is basically the tenants property with all of the power on their side.

    It won't be too long in this country until most tenants cotton on to the fact they do their actually have to pay anyrent at all and can stay for years. They might even make a profit out of it if they can goad the landlord enough.


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    #29
    99problems
    Registered Users Posts: 197 ✭✭99problems


    A Tyrant Named Miltiades! wrote:
    My sister is a solicitor and has indeed advised to engage the services of a local solicitor but that's on the question of an RTB determination and/or court order.


    You need permission from the tenant to inspect.


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    #30
    beauf
    Closed Accounts Posts: 22,651 ✭✭✭✭beauf


    jamesthepeach wrote: »
    ....
    It won't be too long in this country until most tenants cotton on to the fact they do their actually have to pay anyrent at all and can stay for years. They might even make a profit out of it if they can goad the landlord enough.

    Already have. As have LLs. This partly why the supply is rental properties is at an all time low.


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    #31
    Mooooo
    Registered Users Posts: 8,611 ✭✭✭Mooooo


    If she isnt answering the door or phone and is still there call the guards as you suspect something may have happened to her


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