# Is this notice to leave legal?



## Hells_Belle (29 Apr 2008)

We've had a 54 day notice to move out of our rented house, exactly 2 months after re-signing the lease for another year. I am, to say the least, frustrated.

The letter we got from the estate agent we rent through says:
_
Unfortunately, the landlord who owns the property you are renting at XYZ Main Street has just notified us that the property has been sold. We are issuing this letter as the property will need to be vacated within 56 days as per the legal requirement._

They go on to say they'll be happy to help us find another property with priority over other renters as we are ideal tenants, etc, but I don't think this is a valid notice.

First of all, it feels dodgy to me as nobody ever came to see the house and I never saw it for sale on any property sites, etc. We did have one "insurance inspection" last week but it was the same inspectors who came the year before and I thought it was a legitimate event - nothing to do with selling.

Second of all, I just don't think this is a legal notice. The Act says that one of the six reasons a landlord can give you to leave is if they *intend to sell *in the next 3 months. This notice comes from a landlord who apparently has already *sold*. So one, I don't think he can even give us notice - he doesn't own the property, is presumably no longer our landlord, and the notice would have to come via the new owner, right? And two, the new landlord would have to give us notice on some other basis, right?

If the notice is not legal, what can I do? PRTB hearings are being scheduled nine months from now and I'm supposed to move out in less than six weeks!
_
*PS:* I have other posts on the board regarding mortgages, because having been pushed out from two different rentals in 14 months, we are strongly considering buying earlier than we had previously planned. In case we do not end up qualifying for a mortgages, however, I need to know what my current options are for where we're currently living._


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## Berni (29 Apr 2008)

If you've signed a fixed term contract, then unless they've written in a clause to cover this it isn't a valid notice.  By signing a 1 year contract, they have increased your security of tenure, and cannot arbitrarily reduce it again.


From the prtb:

*Fixed Term Tenancies
*A landlord can only terminate a fixed term tenancy where there the tenant has been in breach of his or her obligations. Accordingly, a landlord cannot rely on the provisions of Section 34, to terminate a fixed term tenancy during the fixed term. 
 
[broken link removed]


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## Hells_Belle (29 Apr 2008)

OK, cool, I'm looking at that now. I see the section from which you're quoting.

There is a distinction being made with which I am not familiar - between a Part 4 Tenancy and a Fixed Term Tenancy. With Part 4, he can use any of the clauses in Section 34 of the Act to boot us, but with Fixed Term, he cannot - correct?

And because we have signed a lease, this is a Fixed Term and _not_ a Part 4 tenancy?

Wow. The cheek! That's outrageous really. Thanks a lot


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## Remix (29 Apr 2008)

> If the notice is not legal, what can I do? PRTB hearings are being scheduled nine months from now and I'm supposed to move out in less than six weeks!


 
As far as I understand, the time delay in PRTB hearings works in the tenants favour.

From the moment you file a complaint with them, your current residency and lease conditions are legally frozen in place until the PRTB has dealt with the case. A call to PRTB will confirm this.


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## Hells_Belle (29 Apr 2008)

Grand so.

I'm going to wait until I hear about our mortgage before I go back to the estate agent. If we decide to buy, I'll use their error to negotiate moving out when it suits us (since they obviously want us out.) If we don't get financing, then I'll file with PRTB and let them know we'll be staying for the duration of our lease or until a ruling.


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## Afuera (29 Apr 2008)

Hells_Belle said:


> Grand so.
> 
> I'm going to wait until I hear about our mortgage before I go back to the estate agent. If we decide to buy, I'll use their error to negotiate moving out when it suits us (since they obviously want us out.) If we don't get financing, then I'll file with PRTB and let them know we'll be staying for the duration of our lease or until a ruling.


You're in a very strong position here. You could go a lot further than simply negotiating a date that suits you to leave. If I was in your shoes I would offer them the option to buy the remaining lease for EUR 10,000, due to all the hassle they have caused you. They were very silly to sign a fixed term lease if they were actually trying to sell it.


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## mercman (30 Apr 2008)

If you are in Year 2 of your lease, (signed an extension) I think the landlord is well within his rights to give you a 56 days notice. And if you don't go and the sale is aborted by you remaining in the property, he has the right and will probably sue you for the damages he incurs, which could be substantial. As long as the landlord can show he has sold the property, that's all he needs to do. You are better off getting a proper opinion from a professional (solicitor etc.) as if you wait for the PRTB it could cost you very dearly.


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## Dreamerb (30 Apr 2008)

Not unless the lease provides a break clause which the landlord may exercise if selling. 

This keeps coming up and appears not to be properly understood: a landlord may cede greater rights by providing a lease, but cannot reduce the rights of the tenants. If this were a Part IV tenancy, you might be right - however, it is not because the landlord has provided a lease which gives the tenants greater security.


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## mercman (30 Apr 2008)

Maybe, but this is the extension of the original lease where matters and rights change in the second year. The landlord can excercise this right if he so wishes.


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## jhegarty (30 Apr 2008)

mercman said:


> If you are in Year 2 of your lease, (signed an extension) I think the landlord is well within his rights to give you a 56 days notice..





Under what grounds ?


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## Dreamerb (30 Apr 2008)

How so? If the lease is extended and the terms of the extension are that it's for a further year and is otherwise the same, how do the rights change except as expressly provided for under the terms of the lease itself or any variation? If they've all signed off on it, as far as I know it has the same effect as a new one year lease (except insofar as any additional entitlements of the tenants under the RTA would apply).

_Reply was to mercman, crossed with jhegarty._


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## Hells_Belle (1 May 2008)

The PRTB document linked to states:

Accordingly, a landlord of a fixed term tenancy cannot rely on the provisions of Section 34 (e.g. the landlord wants to sell his house) to terminate the fixed term tenancy 

So this hinges on if I have a fixed term tenancy or not. We were resident for one year here with a lease from the EA, and then signed a new lease for a second year just two months ago.

The Threshold website specifically [broken link removed]:

5. Can the landlord sell the property?
Unless there is a break clause, the landlord must sell the house with the tenant living there. The new owner is also bound by the lease.

There is more information at that link, too.

From their own documentation, I think the PRTB would side with me. Threshold also says they will assist tenants at PRTB hearings, and their documentation is directly informative about this scenario.


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## gearoidmm (1 May 2008)

I wonder if there should be a sticky on this.  At least once a month someone comes on here asking this exact question and then an amateur landlord claims that the PTRB act allows them to break a lease and kick someone out.  The PRTB act was supposed to increase tenant security and was never meant to supersede a fixed term lease.  The estate agent should be well aware of this and they're chancing their arms tring to get you out like this.  Perhaps if they had approached this differently you might have responded positively?


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## Hells_Belle (1 May 2008)

Ha. I rang Threshold this morning, and they say that I have a Fixed Term Tenancy, assuming I can find my lease, and that the landlord is required to honor it until the end of the lease regardless of the house sale.

Additionally, if I can't find my lease to prove my fixed term tenancy and I have to rely on Part 4, the letter I got from the EA isn't a valid termination notice anyway.


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## cjh (1 May 2008)

Hells_Belle said:


> , because having been pushed out from two different rentals in 14 months, we are strongly considering buying earlier than we had previously planned. [/I]



On what grounds??

Is this the third in 14 months?


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## Hells_Belle (1 May 2008)

No, this is the 2nd in 14 months. The previous one we had to leave because we were in the top floor flat and they needed to do extensive roof repairs.


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## NHG (1 May 2008)

Were you planning on breaking the lease yourselves considering you are waiting for your mortgage information?


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## shanegl (1 May 2008)

If they were, they'd be perfectly entitled to do so, once they followed the correct procedure.


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## NHG (1 May 2008)

I totally agree with you, but seems strange that a landlord would renew and lease two months ago when "he knew he was going to sell" and that a tenant would sign a lease when they were "planning on buying their own home".


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## Hells_Belle (1 May 2008)

NHG said:


> Were you planning on breaking the lease yourselves considering you are waiting for your mortgage information?



NO. I fully intended to honour my lease when I re-signed! We were not planning (nor are we really financially prepared) to buy until early next year. We got this letter from the estate agent on Friday, and I rang a mortgage broker on Monday because I now feel pushed into premature home buying just to reliably keep a roof over my head.

I know this situation is dodgy, but in all honesty, the problem party here is really, really not me.


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## Dreamerb (3 May 2008)

gearoidmm said:


> I wonder if there should be a sticky on this.  At least once a month someone comes on here asking this exact question [...]



I second that. 



gearoidmm said:


> and then an amateur landlord claims that the PTRB act allows them to break a lease and kick someone out.


Ahem. Speaking as an amateur landlord, I keep trying to correct this misapprehension. We aren't all recklessly ignorant you know.


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