# Landlord wants to keep my deposit



## Jayjay80 (6 Sep 2011)

Hello,

I am in a predicament and unsure of my rights, if any.

I moved into this property on 27th March 2010. I renewed my lease on 27th March 2011. Due to a change in circumstance we have to move. I submitted one months notice on 27th August. However my landlord advised i needed to give 42 days and I accept this.

However, he is not going to return my deposit for breaking the lease. I dont know if its the law.

This house was a complete mess when we arrived. He had to paint the house before we moved in but he was so slow in getting around to it that we offered to fo it ourselves. So we saved him a fortune. The patio doors have been broken and gaping for months and in winter we were losing all our heat but rather than fix them he decided to put in a homebond claim.

Thats all fine. I have been really understanding. We have transformed this house from a dump into a gleaming gem!!! 

We've lost our jobs, we cant afford to live here anymore, we've been excellent tenants, and its just bad form for him to keep my deposit €976. I pay my rent in arrears at the months end, so ive a good mind to not pay this months and tell him to keep the deposit instead...but i'm afraid of the consequences.

My lease says the following:

The landlord agrees to pay within 14 days to the tenant when he or she quits the dwelling any deposit that he or she has paid except any portion that the landlord is entitled to retain., to cover:
Any arrears of rent and the cost of recovering such arrears, and any breach by the Tenant of Clause 2.15 and the costs incurred by the landlord in making good any breach. 

I cant see what clause 2.15 actually is? But there is a long list of dont do this and dont do that...eg anti social behaviour etc.

Would appreciate any help, 

Thanks


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## Jayjay80 (6 Sep 2011)

I just googled clause 2.15 and it says 

*2.15 Not to do any act that would cause deterioration in the condition the Dwelling was in at the commencement of the tenancy

If anything ive drastically improved the quality of the property!!
*


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## Dublin3124 (9 Sep 2011)

My advice is to send the above in an email to Threshold - www.*threshold*.ie.

They will get in touch with your landlord on your behalf.  They are there to help with situations like this.


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## Slim (9 Sep 2011)

Jayjay80 said:


> . I pay my rent in arrears at the months end, so ive a good mind to not pay this months and tell him to keep the deposit instead...but i'm afraid of the consequences.


 
I am a landlord of one property and every tenant, bar one, has withheld the last months rent in lieu of getting deposit back. 

I don't think he can do much about it. slim


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## McD1978 (9 Sep 2011)

My advice - withhold the last months rent.


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## catchphrase (9 Sep 2011)

Hi Jayjay80.

As a landlord myself, I had a tenent who moved into my house and signed a years lease, might I add we changed the house to suit them as they said they were looking to stay longterm. However 5months into the lease they like yourself said they could no longer afford the rent. I thought I would get to at least keep deposit as they were breaking the contract, however I rang the PRTB and they said that we had to give the deposit back. We did do this but I did think it was very unfair as we ended up been out of pocket a lot more. So to answer your question, yes you are entitled to keep your deposit, and a contract is a waste of time from a landlords point of view.


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## Knuttell (10 Sep 2011)

> This house was a complete mess when we arrived. He had to paint the house before we moved in but he was so slow in getting around to it that we offered to fo it ourselves. So we saved him a fortune. The patio doors have been broken and gaping for months and in winter we were losing all our heat but rather than fix them he decided to put in a homebond claim



Why on Earth did you rent it?

What sort of lease do you have?you cannot just walk out on a lease regardless of what other "landlords"here seem to think.

If it were me I would be enforcing leases to the letter of the law.


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## Bronte (12 Sep 2011)

The OP did not give correct notice to the landlord.


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## Bronte (12 Sep 2011)

catchphrase said:


> . I thought I would get to at least keep deposit as they were breaking the contract, however I rang the PRTB and they said that we had to give the deposit back.


 
Could you clarify exactly what transpired with you and the tenant?  And also what the PRTB told you.


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## choccy (12 Sep 2011)

you are completely within your rights to break a lease- you can go through the PRTB / threshold but they quite slow. to be honest the only thing that not paying your last months rent affects is if you want to rent again and need a land lord reference.
i used be a landlord and any reasonable landlord would be very very happy to give you back full deposit seeing as you made improvements , paid rent on time and were there well over a year.  you totally within your rights to break lease .

based on land lord behavoiur i wouldn't pay last months rent, but still leave the place clean and tidy and move out in an orderly fashion.   Take plenty of photos of place on day you move out, inside of fridge, improvemnts you made etc - this means if you looking for another rental you can explain to new landlord what happened , and show pics of how you left last place. you can use bank statements to show you paid rent on time . and its still worth registering your complaint with threshold . good luck.


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## Knuttell (12 Sep 2011)

choccy said:


> you totally within your rights to break lease .



*No you are not*

If the tenant decides to break the lease the Landlord is entitled to withhold whatever the break costs eg cost of re-letting (advertising, PRTB registration etc) and any void period between them leaving and you getting a new tenant the onus is on the Landlord to expedite this asap but with the rental market being what it is it could take a while....*there is only one out clause for a tenant* in that they're permitted to assign the lease ie get replacement tenants that the Landlord is happy with,other than that any suggestion that the tenant can just walk away from a lease is usually made by Landlords who havent a scooby doo.

I have had tenants in the past come to me saying they had both lost their jobs and could they break their lease,I replied that I was entirely sympathetic to their plight and if they could produce original p45s I would be happy to allow them break the lease...guess what??

I never heard a dicky bird from them about lease breaking after that.


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## oldnick (12 Sep 2011)

Can a landlord keep renewing a fixed term tenancy and thus avoid the obligations of the Residential Tenancies Act ?


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## Knuttell (13 Sep 2011)

oldnick said:


> Can a landlord keep renewing a fixed term tenancy and thus avoid the obligations of the Residential Tenancies Act ?



Not sure what you mean?you cannot avoid the obligations of the Residential Tenancies Act.

If memory serves there was a case before PRTB where the tenant had signed up to a second fixed term lease but the PRTB ruled that they 'enjoyed the protections of a Part 4 Tenancy, as defined pursuant to Section 28 of the Residential Tenancies Act 2004' regardless of the nature of the fixed term lease.

Hope this is what you mean?


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## Bronte (13 Sep 2011)

Knuttell said:


> *No you are not*
> 
> If the tenant decides to break the lease the Landlord is entitled to withhold whatever the break costs eg cost of re-letting (advertising, PRTB registration etc) and any void period between them leaving and you getting a new tenant the onus is on the Landlord to expedite this asap.


 
I'm not sure about that?  The advertising and PRTB registration.

In this case the tenant did not serve valid notice and the landlord is entitled to proper notice and if he is not able to rent immediately (leaving him with no loss) then the deposit can be taken as rent.  As you said currently, in general, it's taking longer to rent so OP will probably lose her deposit.  

Very clever on the P45's - good advice.


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## Bronte (13 Sep 2011)

oldnick said:


> Can a landlord keep renewing a fixed term tenancy and thus avoid the obligations of the Residential Tenancies Act ?


 
There is no way to avoid the obligations of the Act, you cannot contract out of the Act with the tenant.


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## anseo (13 Sep 2011)

Did the landlord produce a BER cert at the time you leased the property.

If he did not, the lease may be null and void.


http://www.broadsheet.ie/2011/06/03/irish-landlords-they-care/


Lot of info on Google:
http://www.google.ie/#sclient=psy&h...gc.r_pw.&fp=962fe6c90d43a230&biw=1440&bih=768


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## oldnick (13 Sep 2011)

bronte -if tenant agreed to 42 days and according to the Act this is correct then why is he keeping deposit ?
I think the answer may be that the tenant had a fixed term lease -the second with the landlord and therefore the tenant had to stick to thast fixed term lease time frame.

My question is -can a lanlord keep renewing a fixed term lease which does  ,I believe, mean that the notice terms in the RTA can be ignored ?
If the landlord can keep renewing then he is right to penalise the teant.
If the landlord cannot do so then he is wrong.

I am genuinely confused by the RTA provisions and what seems to be the "get-out" aspect of the fixed lease aspect.


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## oldnick (13 Sep 2011)

Sorry Knutell, I overlooked your post earlier today. You basically answered the question I posed . That is, the landlord cannot keep renewing fixed term tenancies and the tenant enjoys the protection of the RTA and can break a lease (with proper notice).

I'm still being thick here - why then did you forcefully state  that the OP could not break his lease ?? ( in response to advice from choccy who said "you can break your lease").

Sorry for my confusion.

So, anyone, can this tenant break his lease with 42 days notice ?


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## Knuttell (13 Sep 2011)

oldnick said:


> I'm still being thick here - why then did you forcefully state  that the OP could not break his lease ?? ( in response to advice from choccy who said "you can break your lease").



The answer is in my original post Nick



> If the tenant decides to break the lease the Landlord is entitled to withhold whatever the break costs eg cost of re-letting (advertising, PRTB registration etc) and any void period between them leaving and you getting a new tenant the onus is on the Landlord to expedite this asap but with the rental market being what it is it could take a while



They cannot just walk away fro the lease without consequence as suggested by previous posters,the only out clause is


> they're permitted to assign the lease ie get replacement tenants that the Landlord is happy with



As you can see that is markedly different to the notion that a tenant can just break the lease and ride off into the sunset and the actual reality.


Call me old fashioned but when I sign my name to something or when I give my word,thats it,its cast in Iron as far as I am concerned.


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## oldnick (13 Sep 2011)

yes, yes knuttel I get the moral aspect. It's the legal point I'm unsure about .

According to a" Guide to  Residential Tenancies Act from Dept Environment" 
_" tenancies will be terminated by means of a notice of termination regardless of why the termination is happening...Tenants need not give a reason for terminating."_

Periods of notice are then listed e.g.1-2 years -42 days notice.

So, it is  clear there that a tenant can legally break a lease....

Now, I gather this does not apply to a fixed term lease. That is why i asked the question - can a landlord keep on renewing a fixed term lease and thus avoid the RTA rules. You replied that you remembered a case where it was ruled a landlord cannot do so.

Sorry -but still confused -there seem to be two different answers on this.


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## Mrs Vimes (14 Sep 2011)

As I understand it a landlord can *ask* a tenant to sign a new fixed-term lease when the original one expires but if the tenant refuses then he has Part IV rights anyway.

I'm not sure why a tenant would sign a new lease which really only assures him that the landlord won't evict him even on the grounds allowed by Part IV (needing house for family, etc) but costs the tenant his right to terminate the lease with appropriate notice.

I suspect that the tenant in this case wasn't aware that he could stay on under Part IV and that is why he signed the second lease.

Does ignorance of your rights without signing a contract means the contract you sign is void?

Sybil


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## oldnick (14 Sep 2011)

Good- we're getting close to an answer  to the whole question of tenants breaking a lease. Something that no poster so far has given a clear defintive legal answer.


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## Bronte (19 Sep 2011)

oldnick said:


> Good- we're getting close to an answer to the whole question of tenants breaking a lease. Something that no poster so far has given a clear defintive legal answer.


 
I wouldn't have an answer on this because I don't have leases.  When my tenant's are leaving I just give them back the deposit if there is no damage.


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## bugler (19 Sep 2011)

oldnick said:


> Good- we're getting close to an answer  to the whole question of tenants breaking a lease. Something that no poster so far has given a clear defintive legal answer.



It's simple enough - Knuttell has provided most if not all of the answers. 

If there is no lease, or if a lease has lapsed and the tenancy is then Part IV, then the RTA periods of notice apply. 

If there *is* a fixed term lease, then assuming there are no break clauses, then the tenant cannot just decide to leave midway through, nor can the landlord decide he wants the dwelling back because he wants to sell etc. A fixed term is a fixed term. 

The only way out for a tenant is to find someone willing to sublet, to whom they can assign the remainder of the lease. This isn't a general, common sense thing, the right to assign the lease is actually provided for in the legislation. If the tenant requests permission to assign the lease to someone and the landlord refuses then the tenant can serve notice of termination and they are entitled to their deposit back.



> I'm not sure why a tenant would sign a new lease which really only  assures him that the landlord won't evict him even on the grounds  allowed by Part IV (needing house for family, etc) but costs the tenant  his right to terminate the lease with appropriate notice.



Simple - if you want true security of tenure as a tenant then you *need *a fixed term lease. What use is the RTA "security of tenure"? Under it you're out if:

The landlord wants to sell.
The landlord wants the house for himself or a family member.
The landlord wants to alter the purpose of the property.

among others. The RTA itself gives no real security of tenure to tenants, because if a landlord wants to end the tenancy he has a range of options open to him. In any case, wanting to sell and wanting the house for personal or family use are probably the two main reasons a landlord would want the dwelling back, and the RTA caters well for them in this respect.

If you as a tenant are flexible, and like the idea of being able to move at fairly short notice, then Part IV may be a good idea. But you need to be aware that it affords the landlord flexibility also.

There is general ignorance of obligations and entitlements from both landlords and tenants in Ireland, an educational campaign is well overdue. Tenants and landlords witholding rents/deposits because they don't understand the law isn't doing the renting sector any good at all.


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## oldnick (19 Sep 2011)

Bugler -this is my confusion which I've asked about a couple of times.

As per post 21 (Mrs Vimes) and, in more detail,  as per knuttell's post 13  about second fixed term leases where, despite there being a second fixed term lease,  the _"PRTB ruled that tenants enjoyed protection of Part 4 tenancy, regardless of the nature of the fixed term lease"._

That suggests that ,yes, in the first fixed term lease the tenant and landlord must stick to the term of the lease. But after the expiry of that lease  if the landlord wants a second fixed term lease - even if the tenant signs it - it makes no difference - the tenant is "protected".

Is that the case or not ?


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## bugler (19 Sep 2011)

As I understand it:

Tenants get Part IV protection after 6 months of a tenancy, whether the tenancy was subject to a lease or not. So if you have been in situ for 6 month you have Part IV - it matters not a bit whether you've ever signed a lease or have signed 2 leases. 

But Part IV is only of any 'use' where you are outside of a lease agreement. The second lease would stand, and must be adhered to. People then may claim that they have a "statutory right" to serve notice, and that the lease cannot contradict that, but it seems it is interpreted that there is no "right" to terminate, rather there is a "obligation" to serve appropriate notice where governed by Part IV only. The RTA is not designed to make private agreements redundant. Tenants should realise they can secure greater security of tenure via a lease, but this comes with responsiblities. Likewise landlords should be aware that they can secure greater piece of mind with a fixed term lease, but they sacrifice the freedom to do as they choose with the dwelling.

Very few, if any, of these type of cases ever get near a court, so making definitive proclamations can be difficult. But I'd be confident of what I have asserted above based off the published advice of Threshold and the PRTB, and the latters published decisions in their cases.

Lastly, and to labour my point, I know..



> the tenant is "protected"



The only thing protecting tenants in this country is a lease. Part IV gives no protection. It may give the right to leave a dwelling early, but that doesn't qualify as protection in my book.


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## Bronte (20 Sep 2011)

bugler said:


> The only thing protecting tenants in this country is a lease. .


  I would dispute this.  Tenant's have the protection of the Act.


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## bugler (20 Sep 2011)

Bronte said:


> I would dispute this.  Tenant's have the protection of the Act.



Yes, statutory minimums. They stop the landlord heating the place with an oven (well, in most cases..)

But I was referring to security of tenure, and how Part IV tenants are "protected" as mentioned earlier in the thread, which they are not. Part IV security of tenure is worth far less than a lease's security of tenure.


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## alex24 (24 Sep 2011)

oldnick said:


> yes, yes knuttel I get the moral aspect. It's the legal point I'm unsure about .
> 
> According to a" Guide to  Residential Tenancies Act from Dept Environment"
> _" tenancies will be terminated by means of a notice of termination regardless of why the termination is happening...Tenants need not give a reason for terminating."_
> ...



The statutory notice contained in the RTA is applicable when people are not in a lease. Under section 58 of RTA notice can not be served during a fixed term contract (lease). This also applies to landlords though and they can't rely on Section 34 to give notice if they are in a lease.


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