# Is the last month of rent prorated



## vdm (13 Aug 2013)

Hello,

I have been the tenant of a property since 19/07/2010 and I recently sent a notice of termination to the landlord (56 days in advance by registered letter) to leave the property on September 7th 2013.

On the instructions of my landlord, I used to be paying rent every 19th of the month. I was expecting to pay prorated rent for the last month (rent*19/31 for the period from 19/08/2013 to 07/09/2013).

However, my landlord is asking for the full rent of the last month.

What should be paid in this case? The full or prorated rent for the last month?

The Residential Tenancies Act 2004 does not seem to give any guidance on the subject.
The lease itself says "PAYMENT METHOD: In advance by one monthly payment to the Landlord ... on or before the first day of each month" and also says "MARKET RENT: XXX EUR per calendar month"


thanks for the advice!


----------



## facetious (13 Aug 2013)

You contracted to pay the rent on a calendar monthly basis in advance, irrespective of what date of the month (i.e. 19th to the 18th of the following month). 

If you decide to vacate mid rent period, you still need to pay for the full month. You are entitled to remain until the end of the rent period but you have decided to move out before, as many people do, but you are moving out two weeks prior to the end of the rent period at your own choice.


----------



## delgirl (13 Aug 2013)

facetious said:


> You contracted to pay the rent on a calendar monthly basis in advance, irrespective of what date of the month (i.e. 19th to the 18th of the following month).
> 
> If you decide to vacate mid rent period, you still need to pay for the full month. You are entitled to remain until the end of the rent period but you have decided to move out before, as many people do, but you are moving out two weeks prior to the end of the rent period at your own choice.


Don't like to question you facetious as your knowledge of this subject is extensive , but assuming the OP is on a Part 4 lease, the OP is required to give _a total_ of *56 days notice* to the Landlord, which takes the OP up to 07.09.2013. 

Why would the OP have to pay the rent up until 19.09.2013? I can't see where it says that the notice period has to be calcuated so as to end on the usual date of the rental payment.


----------



## facetious (13 Aug 2013)

This is one of the disadvantages, from a tenant's point of view, of a Part 4 tenancy in that there is a notice period required. If it was a fixed term tenancy, he would have to either wait until the end of the fixed term (no notice required) or assign the remainder of the lease.

The tenant's fixed term contract states that the rent is calculated and paid on a monthly basis. This clause carries on into a Part 4 tenancy. The tenant should organise himself so that the notice period expires as close as possible to the end of the rent period.

An exception to this would be in the case of an assignment of a lease where, the outgoing tenant might vacate half way through the rent period, but the new tenant takes over the rent at the same time as the vacating tenant quits, thus the rent period is completed in its entirety.

However, the 56 day notice period may be reduced immediately prior to or after the NoT, by mutual agreement between the two parties. 

A shorter notice period than that set out in the RTA 2004 may not be agreed to either in a lease agreement or verbally at the start of a tenancy.

It would seem, in this case, that the landlord is not willing to agree to a notice shorter period.


----------



## vdm (14 Aug 2013)

facetious said:


> This is one of the disadvantages, from a tenant's point of view, of a Part 4 tenancy in that there is a notice period required. If it was a fixed term tenancy, he would have to either wait until the end of the fixed term (no notice required) or assign the remainder of the lease.
> 
> The tenant's fixed term contract states that the rent is calculated and paid on a monthly basis. This clause carries on into a Part 4 tenancy. The tenant should organise himself so that the notice period expires as close as possible to the end of the rent period.
> 
> ...



Thanks for your reply. For the record, it was a part 4 tenancy.

Do you have a source regarding the fact that the rent has to be paid until the end of the term? (offical doc, court case, own experience?)
(there is no notice issue in the case, proper notice was given by registered letter 56 days in advance)

I know it is completely different but I am confused because when I was made redundant earlier this year, the wording of my contract was pretty similar (3M notice, salary paid monthly in arrears) but I was given notice in the middle of a month and I was given pro rata pay for the last month.


----------



## facetious (14 Aug 2013)

vdm said:


> Thanks for your reply. For the record, it was a part 4 tenancy.
> 
> Do you have a source regarding the fact that the rent has to be paid until the end of the term? (offical doc, court case, own experience?)
> (there is no notice issue in the case, proper notice was given by registered letter 56 days in advance)
> ...


It would come under contract law and not the RTA 2004. The essence of your contract is that, you agreed to pay rent on a monthly basis in advance. If you decide to leave mid month then you lose the remainder of that month's rent. It was your choice to move mid period, but your contract allows you to remain until the end of that period.

I am currently renting and when I moved from my last location, I moved out of the 10th of the month (end of a Part 4 rent period) and moved into my new location on the same day thus, I had absolutely no overlap of tenancies and no rent gone to waste, or no paying rent for two properties at the same time. However, to do it that way, it did take a good bit of planning - especially with the moving of furniture which I had to do (also with the fact that I moved about 60 kms, and a change of county). 

If I had moved out a week earlier, (or two or three) I would not have been due a refund of rent.

Employment contracts have their own speciualized laws and I know nothing of them - never having had a written one and also having been retired for the last number of years.

You only recourse would be that if the landlord was to:
1. Have a new tenant in place before the end of your contract date.
2. The landlord started redecorating the property before the end of the contract date.

The reason for this is that you are still entitled to acess to and exclusive enjoyment of the property and the landord has no right to enter the property while your contract exists. If you advise the landlord of these facts, he may be willing to return part of the rent on a pro rata basis, so that he can proceed with reletting the property as quickly as possible. Advise him that should he soi much as enter the property, you will make a claim with the PRTB for illegal entry. (This should be done in writing and keep a dated copy in case you have to make a claim with the PRTB).


----------



## facetious (14 Aug 2013)

I have just been check some PRTB adjudications as regards the return of rent paid in advance.
In the cases that I have read (and unfortunately the exact reason is sparse) it appears that where a tenant has been served with a Notice of Termination by the landlord, the tenant's rent in advance has been returned on a pro rata basis. 

This is obviously in cases of eviction and a tenant has no right to remain in the property thus the return of rent.


----------



## Jim2007 (14 Aug 2013)

delgirl said:


> Why would the OP have to pay the rent up until 19.09.2013? I can't see where it says that the notice period has to be calcuated so as to end on the usual date of the rental payment.



Well if the contract states that the property is rented on a monthly basis, where would the right to rented for a lesser period come from if it is not covered by the contract?  There is nothing hindering him from staying on for the remainder of the month is there?  So I don't see why he should expect to be able to rewrite the contract now.


----------



## vdm (14 Aug 2013)

facetious said:


> I have just been check some PRTB adjudications as regards the return of rent paid in advance.
> In the cases that I have read (and unfortunately the exact reason is sparse) it appears that where a tenant has been served with a Notice of Termination by the landlord, the tenant's rent in advance has been returned on a pro rata basis.
> 
> This is obviously in cases of eviction and a tenant has no right to remain in the property thus the return of rent.


Thanks for the time you took looking into it. It seems like I don't have a clear legal high ground... best course of action is to negociate then!


----------



## facetious (14 Aug 2013)

Exactly, try negotiation and remind the LL that if he does not return a pro rata amount, you are still a tenant and he has absolutely no right to enter the property. If he does, he is in breach of his obligations and you could make a claim with the PRTB for such. Remind him that you will check up from time to time as to the state of the property while your tenancy exists.

Illegal entry is considered as being very serious.


----------



## vdm (14 Aug 2013)

Jim2007 said:


> Well if the contract states that the property is rented on a monthly basis, where would the right to rented for a lesser period come from if it is not covered by the contract?  There is nothing hindering him from staying on for the remainder of the month is there?  So I don't see why he should expect to be able to rewrite the contract now.



Thanks for your reply Jim2007.
Nobody is rewriting the contract: There is no mention of "month to month" or "monthly basis" in the lease. The lease just states that payment is monthly, which is quite different.

To mirror your argument: the "Tenancy act 2004" allows me to give 56 days notice to leave the property. Why should I pay for an additional 12 days of rent? (if that's not explicit in the contract)

I understand from the helpful answers I had on this thread that there is no law on the subject and the terms of the contract prevail. However, I think we are in a situation were the contract isn't clear, which is the whole reason for the discussion.


----------



## delgirl (14 Aug 2013)

As the OP has a part 4 tenancy, he/she is required to terminate the tenancy under the Residential Tenancies Act as follows:-

*TERMINATION *
*Part 4 Tenancies *
A tenant can terminate a Part 4 tenancy *at any time* and without reason, provided he or she gives *the requisite notice* (OP gave 56 days in writing by registered mail) and complies with the provisions for termination of a tenancy under the Act, which includes the service of a valid notice of termination.

*The Act also states:*
_Landlords and tenants are prohibited from entering into a lease that changes the provisions contained in Part 4 of the Act unless you give your tenants greater security of tenure than provided under the Act._

Part 4 of the act clearly states that the tenant is required to tender 56 day's notice at any time in order to terminate the tenancy. There is no reference to the date on which the tenancy commenced or that the notice to terminate should coincide with the date on which the rent is usually paid.

If you're not sure OP, I would give Threshold or  or the PRTB a call, ask them and post back the answer you got.


----------



## delgirl (14 Aug 2013)

Jim2007 said:


> Well if the contract states that the property is rented on a monthly basis, where would the right to rented for a lesser period come from if it is not covered by the contract?


From the Residential Tenancies Act 2004.


----------



## vdm (14 Aug 2013)

delgirl said:


> As the OP has a part 4 tenancy, he/she is required to terminate the tenancy under the Residential Tenancies Act as follows:-
> 
> *TERMINATION *
> *Part 4 Tenancies *
> ...



I just asked Threshold an this is what I got from them:
*The Residential Tenancies Act 2004 outlines the correct period of notice  to be given but does not specify when this should be issued or when it  should expire for example rent day. To avoid difficulties we advise  people to give notice to expire at the end of a rent period. *

Inconclusive answer...


----------



## cremeegg (21 Aug 2013)

You surely did not expect to get better advice from paid professionals than you can get anonymously from volunteers on AAM.

Tut Tut


----------

