# Overholding where a valid Notice of Termination has been served



## Páid (16 Jan 2019)

I'm trying to get my head around the procedure when a tenant overholds where a valid Notice of Termination has been served and not objected to.

The RTB says this;


> *Overholding*
> 
> Overholding is when a tenant remains in a property after a valid notice of termination has expired.
> 
> ...


https://onestopshop.rtb.ie/during-a-tenancy/overholding

Their rent is paid by the council (HAP/RAS) who will not pay rent if the tenant overholds.

Is the correct procedure to serve them with a notice of rent arrears and then serve a 28 day notice of termination or can you proceed directly to the RTB to get a determination/enforcement order?


----------



## Páid (16 Jan 2019)

Or can you go straight to teh District Court - See Appendix 5 (page 43) of this document - https://onestopshop.rtb.ie/images/u..._Enforcement_Proceedings_A5_FINAL_VERSION.pdf


----------



## The Horseman (16 Jan 2019)

Páid said:


> I'm trying to get my head around the procedure when a tenant overholds where a valid Notice of Termination has been served and not objected to.
> 
> The RTB says this;
> 
> ...


Is it RAS or HAP


----------



## Páid (16 Jan 2019)

It's RAS.


----------



## cremeegg (16 Jan 2019)

Why do you say will not pay if the tenant is over holding. That was not my experience with RAS.


----------



## The Horseman (16 Jan 2019)

Páid said:


> It's RAS.


Your lease is with the council not the tenant. Advise council you are terminating lease. If the tenant does not leave and you get award from RTB its the council who are liable.


----------



## Páid (16 Jan 2019)

Tenant is not currently overholding though I have served a Notice of Termination.

In a previous conversation I had with them they told me they will not pay if the tenant overholds. I think it's very likely the tenant will overhold given the lack of suitable accommodation in the area


----------



## The Horseman (16 Jan 2019)

Páid said:


> Tenant is not currently overholding though I have served a Notice of Termination.
> 
> In a previous conversation I had with them they told me they will not pay if the tenant overholds. I think it's very likely the tenant will overhold given the lack of suitable accommodation in the area


 Council are liable for the rent. You can sue them for any outstanding rent.


----------



## Páid (17 Jan 2019)

I'm more concerned about what the correct procedure is to get the tenant out if they overhold.


----------



## The Horseman (17 Jan 2019)

Páid said:


> I'm more concerned about what the correct procedure is to get the tenant out if they overhold.



I have not looked at my RAS contract (I am a landlord) but as far as I can remember the tenancy is between you and the council and the council sublet the property to the actual tenant.

I would suggest you issue a termination notice to both the council and the tenant. The council will tell you they are not liable if a tenant overholds but it will not be the tenant overholding it is the council. The council don't want to have to deal with finding the tenant a new property as they are required to find another RAS property for the tenant. The council has a higher level of responsibility for a RAS tenant as its the councils responsibility to house the tenant whereas with HAP it is the tenants responsibility to find a property and not the councils.

I am assuming you only receive rent direct from the council and you don't receive any top up from the tenant.


----------



## Páid (17 Jan 2019)

I only receive rent from the council and nothing from the tenant. I understand that the tenant pays the council a nominal rent.


----------



## Bronte (17 Jan 2019)

The Horseman said:


> Your lease is with the council not the tenant. Advise council you are terminating lease. If the tenant does not leave and you get award from RTB its the council who are liable.



So if that is the case who registers the tenant with the RTB?


----------



## Bronte (17 Jan 2019)

Páid said:


> Or can you go straight to teh District Court - See Appendix 5 (page 43) of this document - https://onestopshop.rtb.ie/images/u..._Enforcement_Proceedings_A5_FINAL_VERSION.pdf


All I know is you can't go to court until you waste your time with the RTB.


----------



## Páid (17 Jan 2019)

I think you have to wait until the Notice of Termination has expired (i.e. 1 day into the tenant overholding) then seek a determination order from the RTB and then go to the District Court to enforce it.


----------



## The Horseman (17 Jan 2019)

Bronte said:


> So if that is the case who registers the tenant with the RTB?


The landlord registers the tenancy with the RTB as they have agreed to allow the council sublet the property as part of the contract with the council.

The landlord has the Landlord/Tenant responsibilities with the tenant but the council have a veto on who they put in the property and who they put in the property should the existing tenant move for whatever reason.

The Council underwrite/guarantee the rent payment and are legally responsible for the rent payment.


----------



## dereko1969 (17 Jan 2019)

It's unclear to me whether you are terminating the RAS agreement or just this particular tenant? Have you served notice on the LA as well if it is the former?
What is the basis for terminating the lease for the tenant if the latter?


----------



## Páid (17 Jan 2019)

The tenant was in situ and wanted to go on RAS. The contract I have with the council terminates when the current tenancy terminates. 

I'm terminating the tenancy (not lease) with the tenant because I want to move in. Valid Notice of Termination will be served. Section 6 Termination in the contract with the council states "Termination of this tenancy is governed by the Residential Tenancies Act 2004." and nothing else.

I'm mainly concerned that this tenant will overhold and I just want to be clear on the procedure to get them out. I already have a solicitor engaged but want to be familiar with the procedure if it comes to be an overholding situation.


----------



## The Horseman (18 Jan 2019)

Páid said:


> The tenant was in situ and wanted to go on RAS. The contract I have with the council terminates when the current tenancy terminates.
> 
> I'm terminating the tenancy (not lease) with the tenant because I want to move in. Valid Notice of Termination will be served. Section 6 Termination in the contract with the council states "Termination of this tenancy is governed by the Residential Tenancies Act 2004." and nothing else.
> 
> I'm mainly concerned that this tenant will overhold and I just want to be clear on the procedure to get them out. I already have a solicitor engaged but want to be familiar with the procedure if it comes to be an overholding situation.




Issue termination notice along with Statutory declaration to both Tenant and council. Ensure you use the correct timeframes for length tenant has been in your place as per the RTA rules (it is the time the tenant was your tenant even pre RAS). Issue same by registered post and give one week more to allow for delivery of registered item.

Get a details of who signed for the items via An Post website. If the tenant does not leave on or before the date the tenancy has ended you then take your case with the RTB.

If the tenant overholds then it is the council who are liable for any overheld rent.

What does your RAS contract say regarding the ending of a tenancy?


----------



## Páid (18 Jan 2019)

This is what the contract says - nothing more.


Páid said:


> Section 6 Termination
> Termination of this tenancy is governed by the Residential Tenancies Act 2004.



I know how to terminate the tenancy and am aware of the notice periods and NOT template.

It's where the tenant overholds past the date they are supposed to move out that I am not clear on. I think I need a determination order from the RTB and then need to go to the district court to enforce it.


----------



## imnotsurereally (31 Jul 2019)

Hey *Páid*,
What happened??
I'm in a similar situation, after ~8 months notice, which is up today, their solicitor said to not to bother coming to get the keys, as they wont be moved out for a few weeks.
Like with you, the council pretty much say "not our problem if they overhold".
Any advice?


----------



## Páid (15 Aug 2019)

The tenant moved out on the day they were supposed to. I was extremely lucky.


----------



## Páid (15 Aug 2019)

Or maybe the tenant was extremely stupid.


----------



## Leo (15 Aug 2019)

Páid said:


> Or maybe the tenant was extremely stupid.



Then you were lucky they were stupid


----------

