# Terminating a fixed lease to sell house



## spinal_tap (25 Jun 2007)

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.


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## steelblue (25 Jun 2007)

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.


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## MrMan (25 Jun 2007)

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.


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## Howitzer (25 Jun 2007)

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


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## spinal_tap (25 Jun 2007)

MrMan said:


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



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


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## Madangan (25 Jun 2007)

MrMan said:


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


 

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.


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## gonk (25 Jun 2007)

spinal_tap said:


> 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? )


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## spinal_tap (25 Jun 2007)

gonk said:


> 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.
> 
> ...



Thanks, that's good to know.



gonk said:


> 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??



gonk said:


> (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


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## Persius (25 Jun 2007)

gonk said:


> 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.
> 
> ...


 
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.


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## gonk (25 Jun 2007)

Persius said:


> 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.


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## gonk (26 Jun 2007)

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]).


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## spinal_tap (26 Jun 2007)

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???


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## Madangan (26 Jun 2007)

spinal_tap said:


> 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!


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## tosullivan (26 Jun 2007)

MrMan said:


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


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


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## Dreamerb (26 Jun 2007)

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...


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## gonk (26 Jun 2007)

Dreamerb said:


> 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 . . .


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## jhegarty (26 Jun 2007)

spinal_tap said:


> 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...


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## Howitzer (26 Jun 2007)

jhegarty said:


> 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.


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## tosullivan (26 Jun 2007)

gonk said:


> 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


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## gonk (26 Jun 2007)

tosullivan said:


> 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 . . .


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## jhegarty (26 Jun 2007)

Howitzer said:


> 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.




The tanants won't pay (who would when not living these) and ntl will just disconnect the house and not reconnect until its paid... so it will become the owners problem...


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## hmmm (27 Jun 2007)

tosullivan said:


> the landlord can break the lease if they want to sell, its as simple as that.  Lodging a complaint will get them nowhere.


If you sign a lease the lease terms apply, unless they are ruled to be onerous on the client or unless they are less than the minimum protections afforded to tenants. In the absence of a lease a part IV tenancy is automatically created.

This is all pretty simple, I don't know why people think a contract can just be ignored. The latter advice is the best, if a tenant wants to be akward towards you they have plenty of opportunity, so it would be best to proceed cautiously.


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## tosullivan (27 Jun 2007)

a tenant can break a fixed term lease by giving teh appropriate notice even if there is 6 months left on it, same way a landlord can break it if it is done properly.
Whether the tenant agrees to this is entirely up to them.  They can refuse to move out and make it awkward...thats why I suggested he go talk to them first


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## hmmm (27 Jun 2007)

tosullivan said:


> a tenant can break a fixed term lease by giving teh appropriate notice even if there is 6 months left on it, same way a landlord can break it if it is done properly.


Unless the lease has terms for breaking the lease, there is no such thing as "appropriate notice" on a fixed term lease. The clue is in the name.


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## derryman (27 Jun 2007)

Can't believe some of the legal misinterpretation here - three choices exist

Don't issue a one year fixed term lease - DOH - issue a six month one and then revert to a PRTB style agreement if you like the tenant - UK style

Wait till the year is up - this is the purpose of a one year fixed term lease - love to see you get eviction approval from a court otherwise (subject to rent on time and no anti-social)

Bribe / politely encourage the tenants to vacate the lease early - helpful references / hassle compensation / flexible leave date (once new rental secured)

A lease cannot give less than PTRB cover but certainly can prescribe more (eg tenure for the fixed term period) - PS I was a landlord and went thru this


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## MrMan (4 Jul 2007)

why else would anyone waste their time and effort signing a 1yr lease.


The reason why is obviously security as pointed out, but like many other instances there are exemptions, and in this case the owner deciding to sell his property within the next three months is one of them.


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## derryman (4 Jul 2007)

MrMan said:


> why else would anyone waste their time and effort signing a 1yr lease.
> 
> 
> The reason why is obviously security as pointed out, but like many other instances there are exemptions, and in this case the owner deciding to sell his property within the next three months is one of them.


 

I would be quite amused at the OPs attempts to get vacant possession within the one year lease tenure period(opening a whole can of "whoop ass" at the local court" for him/herself) - subject to rent payment and no anti-social behaviour - WHY do people only want to hear what suits them?


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## MrMan (4 Jul 2007)

Circumstances change as in the OP's situation and that is why such exemptions are in place, this is also the case for the tenant, should they have to break a fixed lease the landlord cannot withhold deposit if he/she finds new tenants within given timeframe.

The residential tenancies Act 2004 was introduced to provided greater security to tenants to try and balance the relationship between landlord and tenant. The exemptions that I mentioned earlier are in place so that should such occasions arise as in the OP's case then they could proceed to break the lease giving the approriate notice period without the need for a solicitor.

I would doubt very much that a tenant would take the route through the courts as they would be advised that they haven't a leg to stand on and the costs wouldn't make sense in the context of this case


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## derryman (4 Jul 2007)

La - la - la (I don't hear you) - why do people only hear what they want to hear

From a short guide to the PRTB act on their website - remember now the OP has a signed agreed fixed term one year lease (not one of those part V periodic ones that the landlord should have given ie six months)

"The Act allows for leases to provide greater security of tenure for tenants, and allows leases to specify longer notice-periods." - one year = one year = one year - amen

*Implications for leases and tenancy agreements generally*
The provisions of the legislation will need to be reflected, as appropriate, in any future tenancy agreements, leases, etc. Tenancy agreements or leases can provide for matters not dealt with in the Act. However, in relation to matters that are covered in the Act, a tenancy agreement or lease cannot take away from rights and obligations provided for in the Act and if it purports to do so, that provision is rendered void. The landlord or tenant cannot contract, or be contracted, out of the rights or obligations of the Act.



•

The Act allows for leases to provide greater security of tenure for tenants, and allows leases to specify longer notice-periods. However a lease cannot detract from the security of tenure measure specified in the Act. A landlord and a tenant can agree shorter notice periods, but only at the time the tenancy is being terminated.
· The PRTB's function in dealing with disputes relating to
tenant or landlord tenancy obligations also includes
obligations of a tenancy agreement or lease not specified in
the Act.
· A tenant’s right to request a rent review annually cannot be contracted out in a lease.
· Notwithstanding the existence of a fixed term tenancy and despite anything to the contrary in a lease or tenancy agreement, where a landlord withholds consent to assignment or sub-letting, the tenant may terminate the tenancy.


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## rock3r (4 Jul 2007)

hmmm said:


> If you sign a lease the lease terms apply, unless they are ruled to be onerous on the client or unless they are less than the minimum protections afforded to tenants. In the absence of a lease a part IV tenancy is automatically created.
> 
> This is all pretty simple, *I don't know why people think a contract can just be ignored*. The latter advice is the best, if a tenant wants to be akward towards you they have plenty of opportunity, so it would be best to proceed cautiously.


 
Yeah, I agree with the above.

It would make the whole process of having a lease worthless if you can be made homeless.

Contracts are inherently restrictive to both parties.

The tenant can, I think, simply assert his right to stay put until the lease expires. That's what he signed for. That's what the landlord signed for. 

The Act is irrelevant where a lease exists.

Section 26 is:



> 26.—Nothing in this Part operates to derogate from any rights the tenant enjoys for the time being (by reason of the tenancy concerned) that are more beneficial for the tenant than those created by this Part.


 
The lease is more beneficial, thus it is in force.


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## gearoidmm (4 Jul 2007)

A simple search on the website will show that this comes up over and over again.  I got legal advice on this from two solicitors because a friend of mine wanted to organise a 4 year lease with his landlord and wanted security of tenure.

A lease supersedes the act.  That is the whole point in having a lease.  The OP hasn't a leg to stand on and cannot use the terms of the PRTB act to remove the tenant from the house.  Any other advice could land the OP in some trouble.


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## rock3r (5 Jul 2007)

Exactly!

Did the OP _really _get advice from a legal professional to violate a contract?!?

Looks like some lawyer needs to be disbarred


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## gonk (5 Jul 2007)

gearoidmm said:


> A lease supersedes the act. That is the whole point in having a lease.


 
It does and it doesn't. Terms in a lease which would give a tenant less favourable conditions than the act are void and unenforceable. 

It would appear from the information posted in this thread that the view that the landlord cannot terminate a fixed-term lease early is correct. On the other hand, if the _tenant_ decides to end it early, apparently the landlord has no redress against him.

Why would any landlord give a fixed-term lease under these circumstances?


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## rock3r (5 Jul 2007)

Because your rent is higher if you give a fixed term lease.



> On the other hand, if the _tenant_ decides to end it early, apparently the landlord has no redress against him.


 
Is that true? Where does it say that?

It would be sort of mad for a tenant to sign a lease which he couldn't leave early. What if your employer goes bust? What if you break your back and can no longer work? A bit harsh to force the tenant into bankruptcy because he cannot complete the lease.

The Act may require landlords to give minimum options to a tenant to leave early if he's unlucky.


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## gonk (5 Jul 2007)

rock3r said:


> Because your rent is higher if you give a fixed term lease.


 
Not in my experience. In fact, the reverse. A short-term letting would typically be at a higher rent than a longer term one.



rock3r said:


> Is that true? Where does it say that?


 
"Notwithstanding the existence of a fixed term tenancy and
despite anything to the contrary in a lease or tenancy
agreement, where a landlord withholds consent to
assignment or sub-letting, the tenant may terminate the
tenancy."​ 
[broken link removed]



rock3r said:


> It would be sort of mad for a tenant to sign a lease which he couldn't leave early. What if your employer goes bust? What if you break your back and can no longer work? A bit harsh to force the tenant into bankruptcy because he cannot complete the lease.


 
I don't disagree. But no-one is talking about forcing tenants into bankruptcy. Before the act came in, realistically the worst that would happen a tenant ending a lease early would be the loss of the deposit.

All I'm saying is that since the new rules have come in, fixed term leases create obligations for landlords, but provide no benefits. In my opinion, the best option for landlords now is not to have a lease, but just to register the tenancy and allow the default notice periods, etc. to apply.


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## Afuera (5 Jul 2007)

gonk said:


> In my opinion, the best option for landlords now is not to have a lease, but just to register the tenancy and allow the default notice periods, etc. to apply.


Or they could have a lease but just specify in it that it will be a Part IV tenancy and all the standard breakout clauses apply (owner wants to sell, move a family member in, renovate it, or whatever).


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## MrMan (5 Jul 2007)

Yes I am a new poster and it seems have posted invalid advice. 
Now that I have eaten my humble pie I can add that having confirmed with the PRTB that a fixed term lease requires a clause stipulating the exemptions in Part 4 tenancies for a landlord to legitimately terminate a lease before the end I am now officially in the know!

Regarding the balance of power under the new regulations, there definitely is a shift in favour of tenants and I wonder how a register of tenants might even things up as in a database for refernces etc to weed out those who abuse property etc (prob not feasible, just a thought)


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## Madangan (11 Jul 2007)

SPC100 said:


> I think the PRTB regulations are way to soft. And we have a long way to go. The tennant rights are very limited at the moment.
> 
> People are entitled to a safe, secure roof over their head. They should not have to purchase an asset to get this, they should be able to rent.
> 
> ...


 

I guess a very long philosphical debate could now ensue as to whether tenants rights should be stronger . There is no doubt that until the new legislation came into being tenants with bad landlords were in a very weak position e.g the stereotypical mean landlord cramming 20 tenants into badly designed over crowded bedsits in an old redbrick in rathmines and as soon as they complained they were evicted. The new legislation in theory should do away with these landlords. Whether it does in practice may be determined in part by whether the PRTB is properly funded (and given our track record in such things it isnt at the moment).

However many landlords do not fit the above stereo type and equally many tenants are not exactly deserving of sympathy. I have heard as many cases of tenants thrashing flats etc... refusing to leave unless they get a payout as I have heard of the dickensian type landlord. Most landlords in Ireland have one or two rented properties and usually these are with a view to being part of the pension so they dont really fit the stereotype of the evil landlord

As someone who owns a rented property abroad I know that if I have a good tenant paying a reasonable market rent then provided that if I (1)genuinely want to sell the property or (2)have it for my own use I can get rid of my tenant with reasonable notice then quite frankly I dont care if he acquires rights to remain on indefinitely(other than the above two reasons)provided there is a rent review mechanism.

I think most decent landlords would feel the same. Anyone I know here who is a landlord feels the same. The current legislation is now in my view very fair as it gives people,in situ for more than 6 months the right to extend by 4 years or so unless the Landlord is genuinely selling or using it for himself.

I know 4 years is still short if you intend to rent and live in aparticular area for life but for the vast vast majority of people in ireland this is usually not the plan so 4 years suits most people.

If ,however more absolute rights were given to tenants this might have the consequence of less rental properties or badly maintained ones(if the landlords investment is devalued by the tenants having very strong rights he will be less inclined to properly maintain the property)( the old controlled tenancies were an example of this..they fell into serious disrepair as landlords were getting next to nothing in rent and as a result the controlled tenants ended up at times in very bad conditions.

Howver for the new system to work its essential that tenants and landlords can solve their disputes quickly and cheaply via the PRTB. As this is not properly staffed and funded by the geniuses in government everybody suffers except the bad landlords and bad tenants who can continue to abuse the system with impunity as they have always done.


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