Tenants leaving well before 56-day legal notice period. Can I keep their deposit?

Seems very unfair.

Do you have any evidence that you could have presented were you warned the tenants they would owe you money if they left early?

How can we learn from this?

How could you have prevented your communication being used against you as evidence of agreement?

Would it have been ok if you had disagreed with the termination and them moving out in every email/sms/letter, while coordinating the handing back of the property?
 
Arnie Hammer said:
I'm in shock.

I got the adjudication report from the RTB this morning and it's gone against me. Basically I had some emails with the tenants agreeing to show up and inspect the property, collect keys, etc when they were moving out. The RTB says that this is evidence that I agreed a shorter period of notice than is legally required. Apparently this is allowed under Section 69 of the Act. So I have to refund the tenants the two weeks rent I retained after they moved out. So they've got away with 16 days notice even though legally its 56.

I have ten days to decide whether to appeal.
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Also appealing helps other landlords. Can you tell us what the wording on the RTB decision was and also the content of your emails to the tenants. You've already helped landlords because we now know that somehow it can be implied we landlords are agreeing to a shorter period of notice by certain actions and I'd like to know which specific actions 'imply' that - sounds crazy to me - but we don't know what's in the decision nor what is in your emails.

So my emails will be:

Dear Tenant, I'm really upset you're leaving without proper notice and I will be holding the deposit in lieu of rent. .....
 
SPC100 said:
Do you have any evidence that you could have presented were you warned the tenants they would owe you money if they left early?
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I told them on the phone that the legal period was 56 days. Nothing in writing. But as I said before, I don't think it's my job to remind the tenants of their legal responsibilities.

SPC100 said:
Would it have been ok if you had disagreed with the termination and them moving out in every email/sms/letter, while coordinating the handing back of the property?
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I don't know. This is Section 69 of the Act:

the landlord or tenant may agree to a lesser period of notice being given than that required by a preceding provision of this Chapter and such lesser period of notice may be given accordingly.

(2) Such an agreement to a lesser period of notice being given may only be entered into at, or after, the time it is indicated to the tenant or landlord (as appropriate) by the other party that he or she intends to terminate the tenancy.

The next time this happens I will make sure never to put in an email anything that looks like an agreement.

Bronte said:
Can you tell us what the wording on the RTB decision was and also the content of your emails to the tenants.
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I don't want to post anything too identifiable. Basically the emails were something like: tenants: "we will be moving out on 27th, can you inspect the property on 30th?"; me: "okay, I'll meet you at 7pm". The RTB ruled that this was me agreeing to shorten the notice period in line with Section 69 of the Act.

SPC100 said:
Reading back on the thread it looks like Jim called it early on!
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That's right. I thought about refusing at the time. But then you would have had a situation where the tenants weren't paying rent but were still tenants against their will, and me not able to re-let the property. I think this could've gone pear-shaped too.

Bronte said:
I would definitely appeal it. But get your ducks in a row. No harm dragging this out and pissing off both the tenant and the RTB. At least you'll get some satisfaction from that.
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It's €85 and more paperwork. At this point unless someone points out some big legal error by the RTB I don't think it's worth it.

Bronte said:
Tenant's played him too
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I don't think it was all planned out. They told me on the phone that something had just come up that they wanted to jump at. They weren't aware of the 56-days notice thing until I looked them up and told them. The RTB claim is free I think for tenants so they had nothing to lose once I held back the two weeks deposit.
 
Well I can well see how it's implied there that you agreed. And nowhere in your email did you state you would be withholding the deposit in lieu of rent? Or in another email or text? Anything anywhere?

Do you know what the tenant's claim to the RTB stated?

Thank goodness I'm not a one for bothering with notice. I couldn't be doing with looking up dates. And no point having a lease. I just give the deposits back whenever it has arisen. I'm thinking of selling a property but I'm going to do it by the book and take the advice of the IPOA before I so much as let the tenant's have a whiff of what I'm at.
 
Arnie Hammer said:
Basically the emails were something like: tenants: "we will be moving out on 27th, can you inspect the property on 30th?"; me: "okay, I'll meet you at 7pm".
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To be fair, I can see why the adjudicator interpreted that exchange as an agreement to a lesser notice period.

Arnie Hammer said:
The RTB claim is free I think for tenants so they had nothing to lose once I held back the two weeks deposit.
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It costs a tenant €15 to lodge a case for adjudication.
 
What did rtb expect you to do. Refuse to meet them until after day 56? Leave the house idle and risk further loss of income?

That sounds to me like comms coordinating things as opposed to agreeing early termination of lease.

I guess if you have no evidence supporting your lack of agreement to early termination or intention to bill them regardless then it's hard for rtb to reach another conclusion.
 
"Moving out" (quote from your paraphrased email) is not the same thing as terminating a tenancy. The lease had start and finish dates. You choose your own moving in and out dates.
 
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Did they serve you with correct formal notice of termination. I believe landlords get done by RTB regularly for not doing it correctly. Not sure if it would help you though.

From threshold:

For a notice of termination to be valid it must:
- Be in writing (Email, text, verbal notice are not valid)
- Specify the date of service
- State that any issue as to the validity of the notice must be referred to the Residential Tenancies Board(RTB) within 28 days of receipt of it.

The RTB have a sample notice on their website that you can use click here to access them.

Your written notice can be served on your landlord/agent in a number of ways including:

Leaving it at the address provided by the landlord/agent for you to reasonably contact them

Personally handing it to the landlord/agent

Sending through the normal post (There is no need for registered post) and the presumption is that it is received through the normal course of delivery (usually this is the next day)



A deposit cannot be used in lieu of rent and you are liable for paying the rent up to the end of the notice period unless otherwise agreed with your landlord/agent. It is recommended to give notice in such a way that it ends with the end of a rental period.
 
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Bronte said:
And nowhere in your email did you state you would be withholding the deposit in lieu of rent?
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The sequence was as follows. They rang me to give notice, then give notice in the post. I rang them back to say that I had looked it up and that 56 days was the legal period. They said we've signed a lease on a new place and would be out at the end of the month and weren't paying for the next month. I had a few email exchanges then to set up an inspection, which was cordial. After that I wrote to them that I would be withholding two weeks rent from deposit, and soon after they went to the RTB.

As I said I thought about refusing to accept their notice but they could have left anyway and gone incommunicado with the keys and this would have left me with no rent and no access either.

Sarenco said:
To be fair, I can see why the adjudicator interpreted that exchange as an agreement to a lesser notice period.
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To me it's a stretch, but yeah, I can see that too.

Sarenco said:
It costs a tenant €15 to lodge a case for adjudication.
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Sorry I didn't realise that. €15 isn't not going to put anyone off though.

SPC100 said:
The lease had start and finish dates.
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It was a Part IV tenancy so as I understand it ends 56 days after the notice is given. Or if a landlord agrees it can be less (which I know now).

SPC100 said:
Did they serve you with correct formal notice of termination.
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The RTB actually said that they the tenants' notice wasn't correct on one of the grounds, but that Section 69 still applied to my emails to them!
 
Sorry now I've changed my mind:

After that I wrote to them that I would be withholding two weeks rent from deposit, and soon after they went to the RTB.

You did agree on two weeks.
 
Bronte said:
You did agree on two weeks.
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Just to summarise again.

After the tenants left I wrote to them saying that 56 days was the legal minimum for notice, and that they had given only 16 days. I then said I was entitled to 40 days further rent, but was only retaining half of their month's deposit, the "two weeks".

The RTB ruled that I had agreed to their 16-day notice period by agreeing to inspect the property when they moved out, and that I should refund the full month's deposit.

I think that's what I'm going to do. I don't see the point of drawing it out any longer.
 
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If you are looking for another opinion on the fairness of their finding, I think you would need to share actual wording of those emails.

It seems unfair to construe coordinating for inspection and returning of a key to be agreeing to shorter notice period.

It would not make business sense to refuse the inspection and key return, after a tenant said they were going to pay no more, as you are putting more income at risk if you refused.

But without reading the actual emails is hard to make an impartial decision.
 
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As I believe I said back in September, who needs the hassle?

Too many hours wasted, too much emotional investment for two weeks of a deposit.

Lesson learned; cut 'em loose & get the property rented out again & make sure you've no voids.

RTB used to name landlords when they published results of cases - do they still do that?
 
Landlords and tenants are named in the findings on the rtb site. But there are no real details given about the cases, just the outcome e.g. ms A will pay ms B x euro of deposit incorrectly withheld.

I would be less likely to rent from a landlord who has a rtb finding against them.
 
Lockup said:
Seems to me the RTB is a kangaroo court paid for by LL's for the benefit of tenants. This is just an example of that
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Without seeing the evidence the rtb had it is hard to draw that conclusion from this case, although I accept it is a commonly held view.

There are two sides to every story....we only hear Arnie's side E.g. The tenants may have strongly believe that Arnie had accepted early termination. And been shocked at the withheld deposit.

There may have been words in emails like. 'i don't like this one bit, but I agree to you moving out before the full legally required notice.'
 
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Is there an online site for people who have property let out to publish stats on tenants who have a bad history, or would that be against some law or anti-someone's feelings?
 
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