Terminating a fixed lease to sell house

[spinal_tap]

Can anyone (delgirl perhaps) point me in the right direction. A new job means I have to sell a property which I currently have tenants in.

They signed a fixed one-year lease last December, and I want to give them notice.

How much notice are they entitled to, and is there anything I need to be made aware of? (I have downloaded the sample termination off the PRTB site, but find it useless apart from that). I searched AAM and one post says you can't break a fixed lease for any reason, which Im sure cannot be correct???

thanks for any replies.

 

[steelblue]

Hi

i dont think that you can break a fixed lease contract unless you have inserted a break clause in the original contract. You would need the tenant to agree to move out which may be a problem as rents have gone up a lot recently and supply is now a problem.

 

[MrMan]

Hi

You need to give them 35 days notice as they are there more than 6 months less than one year. -

Notice Periods for the Termination of a Tenancy by the Landlord
Subject to the terms of any letting agreement in place, the notice period to terminate a tenant’s tenancy is determined by the duration of the tenancy, as follows:

Notice Period Duration of Tenancy
28 days Less than 6 months
35 days 6 months or more but less than 1 year
42 days 1 year or more but less than 2 years
56 days 2 years or more but less than 3 years
84 days 3 years or more but less than 4 years
112 days 4 or more years


Where a tenancy has lasted more than 6 months and less than 4 years, the landlord must state in the termination notice the reason the tenancy is being terminated and the termination will not be valid unless that reason relates to one of the following:
- the tenant has failed to comply with the obligations of the tenancy
- the landlord intends to sell the dwelling within the next 3 months
- the dwelling is no longer suited to the needs of the occupying household
- the landlord requires the dwelling for own or family member occupation
- vacant possession is required for substantial refurbishment of the dwelling
- the landlord intends to change the use of the dwelling.


It's on prtb website under publications, hope that solves your problem.

 

[Howitzer]

In writing. And it's 35 days from the date they receive it.

 

[spinal_tap]

Hi

You need to give them 35 days notice as they are there more than 6 months less than one year. -

Notice Periods for the Termination of a Tenancy by the Landlord
Subject to the terms of any letting agreement in place, the notice period to terminate a tenant’s tenancy is determined by the duration of the tenancy, as follows:

Notice Period Duration of Tenancy
28 days Less than 6 months
35 days 6 months or more but less than 1 year
42 days 1 year or more but less than 2 years
56 days 2 years or more but less than 3 years
84 days 3 years or more but less than 4 years
112 days 4 or more years


Where a tenancy has lasted more than 6 months and less than 4 years, the landlord must state in the termination notice the reason the tenancy is being terminated and the termination will not be valid unless that reason relates to one of the following:
- the tenant has failed to comply with the obligations of the tenancy
- the landlord intends to sell the dwelling within the next 3 months
- the dwelling is no longer suited to the needs of the occupying household
- the landlord requires the dwelling for own or family member occupation
- vacant possession is required for substantial refurbishment of the dwelling
- the landlord intends to change the use of the dwelling.


It's on prtb website under publications, hope that solves your problem.

I saw that on the site... but is that not just for a Part 4 tenancy, rather than a fixed-term tenancy????

 

[Madangan]

Hi

You need to give them 35 days notice as they are there more than 6 months less than one year. -

Notice Periods for the Termination of a Tenancy by the Landlord
Subject to the terms of any letting agreement in place, the notice period to terminate a tenant’s tenancy is determined by the duration of the tenancy, as follows:

Notice Period Duration of Tenancy
28 days Less than 6 months
35 days 6 months or more but less than 1 year


Where a tenancy has lasted more than 6 months and less than 4 years, the landlord must state in the termination notice the reason the tenancy is being terminated and the termination will not be valid unless that reason relates to one of the following:
- the tenant has failed to comply with the obligations of the tenancy
- the landlord intends to sell the dwelling within the next 3 months
-

It's on prtb website under publications, hope that solves your problem.

The Act sets down notice periods but these are minimum notice periods.If the actual letting agreement sets down lesser notice periods then the Act supercedes those but if the Letting Agreement has longer notice periods or does not allow the Landlord to break the lease at all then it is my understanding that the Letting Ageement applies see section 26 of the Act(sorry for some reason I cant paste it here). I maybe wrong but I dont think so. So you may have to negotiate with your tenants.

Also if you have registered the Tenancy with the PRTB(as you are obliged to)then you can obtain advice directly from the board as to its interpretations of your obligations. If you have not registered they will not help you and may come after you for non registration.

 

[gonk]

I saw that on the site... but is that not just for a Part 4 tenancy, rather than a fixed-term tenancy????

There is no such thing as a fixed term tenancy any more, in the sense that you describe.

The tenant can give notice at any time for any reason, subject to the minimum notice period, which varies depending on how long they've been in occupancy.

The landlord can give notice at any time for any of the reasons listed in the earlier post and subject to the applicable notice period.

No matter what the lease says, neither landlord nor tenant can contract out of this.

It is important that the notice is in writing and contains all the legally required information, or it will be invalid. See the PRTB website for a template. (By the way, you have registered the tenancy, haven't you? )

 

[spinal_tap]

There is no such thing as a fixed term tenancy any more, in the sense that you describe.

The tenant can give notice at any time for any reason, subject to the minimum notice period, which varies depending on how long they've been in occupancy.

The landlord can give notice at any time for any of the reasons listed in the earlier post and subject to the applicable notice period.

No matter what the lease says, neither landlord nor tenant can contract out of this.

Thanks, that's good to know.

It is important that the notice is in writing and contains all the legally required information, or it will be invalid. See the PRTB website for a template.

Ya, I've seen the sample thanks. Still no sign of an acknowledgment of the update I sent them with an extra tenant's name. Presumably I should include a mention of notice for any sub-tenancy on the termination notice??

(By the way, you have registered the tenancy, haven't you? )

But of course! Although the PRTB were quite slow in issuing me with a tenancy number, I had to chase them up for it.

Any other tips — should I prepare a duplicate form for the "head" tenant to agree on the ESB reading on the day of handover i.e. we both sign a copy for each of us?

Presumably with NTL and the bins, its up to them to cancel, and I just make a follow-up call to ensure they've been cancelled (all that stuff is in the tenant's name)??

Thanks again

 

[Persius]

There is no such thing as a fixed term tenancy any more, in the sense that you describe.

The tenant can give notice at any time for any reason, subject to the minimum notice period, which varies depending on how long they've been in occupancy.

The landlord can give notice at any time for any of the reasons listed in the earlier post and subject to the applicable notice period.

No matter what the lease says, neither landlord nor tenant can contract out of this.

I'd be very careful about accepting this interpretation. I looked into this a while ago and it is far from clear cut. It is up to the tennants to apply for Part IV protection under the tennancy act after 6 months tennancy and at least 1 month before the original lease expires. If the tennant hasn't done this, you may find that the terms of the lease are binding and not the tennancy legislation.

In otherwords the lease says thay can/must stay for 12 months. You can not use the provision of the tennancy act that entitles you to end the lease because you want to sell, as the tennant has not yet opted for protection under the said act.

This is only my interpretation on it and may also be wrong. Best to contact the PRTB and ask them directly as a previous poster suggested.

 

[gonk]

I'd be very careful about accepting this interpretation. I looked into this a while ago and it is far from clear cut. It is up to the tennants to apply for Part IV protection under the tennancy act after 6 months tennancy and at least 1 month before the original lease expires. If the tennant hasn't done this, you may find that the terms of the lease are binding and not the tennancy legislation.

In otherwords the lease says thay can/must stay for 12 months. You can not use the provision of the tennancy act that entitles you to end the lease because you want to sell, as the tennant has not yet opted for protection under the said act.

This is only my interpretation on it and may also be wrong. Best to contact the PRTB and ask them directly as a previous poster suggested.

I'm not a lawyer myself, just a humble landlord, but this interpretation would not make a whole lot of sense to me. If it works as you describe above, the OP's tenant cannot have their lease terminated before the 12 months is up. If, however, they apply for a Part IV tenancy and - as they think - four years security of tenure, they are immediately subject to having their tenancy ended at 35 days notice.

Mind you, nobody said the law had to make sense . . .

Good luck with trying to contact the PRTB for advice. As has already been noted, it usually takes them three to six months just to issue an acknowledgment and receipt for a registration.

 

[gonk]

As the law stands, once a tenant is in a property six months, he is automatically entitled to a further four year tenancy, regardless of what the lease says.

Neither landlord or tenant can contract out of this at the time the tenancy is created. You may be right in saying the tenants can enforce the 1 year term, although that is not my understanding, but it was of absolutely no benefit to the OP to sign a 1 year lease, as he has no recourse against the tenants if they leave sooner, subject to the required notice.

As for asking the PRTB, I notice this on their FAQ page:

The administrative staff of the PRTB are precluded by the Act from offering legal advice or any interpretation of the law to the public. Staff can inform the public of the tenancy registration and dispute resolution processes. It is up to an individual to seek their own legal advice.

http://www.prtb.ie/faq.html

So the OP won't get any guidance there. Best to talk to a solicitor, or maybe the IPOA ([broken link removed]).

 

[spinal_tap]

Thanks

Spoke briefly to a solicitor friend, and he said to go ahead and serve the 35 days notice.

Now, if served on July 3, does 35 days expire on August 7 or August 8 if you have all of 24 hours to vacate???

 

[Madangan]

Thanks


Now, if served on July 3, does 35 days expire on August 7 or August 8 if you have all of 24 hours to vacate???

The more I think about it the more I am convinced that your tenant can stay on till year is up.What other meaning can section 26 of the Residential Tenancies ACt have?

One sure way of having your tenant check his rights out and contact the PRTB(who will assist him) is going 'the heavy route' and giving the tenant formal legal notice before you even discuss it with him in a friendly way. As for worrying about one day the 7th or the 8th you are far better giving them a little bit more notice than the bare minimum per the Act. If you act reasonably towards him your tenant may(only may) act reasonably towards you. Imagine how you might react if you were the tenant before going in all guns blazing!

 

[tosullivan]

Hi

You need to give them 35 days notice as they are there more than 6 months less than one year. -

Notice Periods for the Termination of a Tenancy by the Landlord
Subject to the terms of any letting agreement in place, the notice period to terminate a tenant’s tenancy is determined by the duration of the tenancy, as follows:

Notice Period Duration of Tenancy
28 days Less than 6 months
35 days 6 months or more but less than 1 year
42 days 1 year or more but less than 2 years
56 days 2 years or more but less than 3 years
84 days 3 years or more but less than 4 years
112 days 4 or more years


Where a tenancy has lasted more than 6 months and less than 4 years, the landlord must state in the termination notice the reason the tenancy is being terminated and the termination will not be valid unless that reason relates to one of the following:
- the tenant has failed to comply with the obligations of the tenancy
- the landlord intends to sell the dwelling within the next 3 months
- the dwelling is no longer suited to the needs of the occupying household
- the landlord requires the dwelling for own or family member occupation
- vacant possession is required for substantial refurbishment of the dwelling
- the landlord intends to change the use of the dwelling.


It's on prtb website under publications, hope that solves your problem.

This is the gospel...you can serve them 35 days written notice as you intend to sell. Its black & white

 

[Dreamerb]

My understanding is that while you cannot contract out of the minimum terms and conditions under the Residential Tenancies Act (such as the Part 4 tenancy arising, for example), the norms of contract law apply to any other provisions of the lease. Therefore, if the lease gives greater security of tenure to the tenant, I think they may be entitled to enforce them against the landlord. Likewise, I think that notwithstanding the provisions of the Act, a landlord could claim breach of tenancy by a tenant who breaks a one year lease.

I certainly wouldn't recommend being heavy handed on this - I'd discuss it with the tenant, and try to provide at least six, preferably eight, weeks' notice.

August is a lousy time to sell anyway...

 

[gonk]

I certainly wouldn't recommend being heavy handed on this - I'd discuss it with the tenant, and try to provide at least six, preferably eight, weeks' notice.

Given the widely varying views on the law posted, this is probably the best advice. After all, no matter who's right about the legal position, if the tenants dig in and lodge a complaint with the PRTB, the process of getting them out could take more than two years. See the IPOA website for a real horror story along these lines . . .

 

[jhegarty]

Presumably with NTL and the bins, its up to them to cancel, and I just make a follow-up call to ensure they've been cancelled (all that stuff is in the tenant's name)??

Thanks again

they will have a 12 month contract with NTL that they can't break.... so I presume you will have to pay that out for the year once you kick them out...

 

[Howitzer]

they will have a 12 month contract with NTL that they can't break.... so I presume you will have to pay that out for the year once you kick them out...

No. The tenants have this agreement with NTL, not the landlord. It is their contract and it is between NTL and themselves to resolve it.

 

[tosullivan]

if the tenants dig in and lodge a complaint with the PRTB, the process of getting them out could take more than two years. See the IPOA website for a real horror story along these lines . . .

the landlord can break the lease if they want to sell, its as simple as that. Lodging a complaint will get them nowhere. The landlord is well within their rights to break the lease. If I was the landlord however I would call around and explain to them first before giving the notice

 

[gonk]

the landlord can break the lease if they want to sell, its as simple as that. Lodging a complaint will get them nowhere. The landlord is well within their rights to break the lease. If I was the landlord however I would call around and explain to them first before giving the notice

The point is that while the landlord may be within his rights, actually enforcing those rights is a tortuously long drawn out process which can take several years.

The case I mentioned is of a tenant who ceased paying rent in March 2005, providing the landlord with the very clear-cut "right" to terminate the tenancy. In March 2007 the landlord was still trying to enforce his rights via the PRTB against the tenant, who had by this point paid no rent for two years, but remained in posession of the property.

See here: [broken link removed]

It would in my view be far better to get a negotiated settlement with the tenant than to rely on the PRTB to vindicate your rights . . .