Landlord and tenant

Categories: Landlord & tenant

The purpose of this LawOnline guide is to provide the reader with a comprehensive look at the different aspects of landlord and tenant law. The guide highlights the various situations where a relationship of landlord and tenant exists and the rights and obligations arising from such a relationship. In addition it also discusses the issue of disputes and how the different types of tenancies may be terminated including, for example, on account of rent arrears.

HOW TO SET UP A TENANCY

Before setting up the tenancy agreement, it is important to remember that there are different types of tenancy arrangements for letting your property to a tenant. There are two broad categories (though other forms of tenancies exists which are not so common) as follows:

  • Tenancy for a fixed term: This is a tenancy created for any fixed term length of time.
  • Tenancy from year-to-year or other periodic tenancy: The duration of a periodic tenancy is not specified. A periodic tenancy can be a tenancy from year-to-year or a tenancy for successive periods, such as a monthly or weekly tenancy. In these types of tenancies, each period is automatically renewed and the tenancy will continue indefinitely after the initial period has ended, until the tenancy is eventually terminated. For example, a tenancy under which rent is paid weekly is deemed to be a weekly tenancy, and if paid monthly it would be considered a monthly tenancy etc..

Irrespective, however, of whether or not the tenancy is fixed or periodic all tenancies become, what is called, a Part 4 tenancy once the tenant is in occupation for more than six months. ‘Part Four’ refers to the relevant section of the Residential Tenancies Act 2004 and is concerned with security of tenure for the tenant and the circumstances under which a tenancy can be terminated.

The only exception to the above regulations, which is at the discretion of the landlord, is where:

  1. the dwelling concerned is one of two dwellings within a building,
  2. that building, as originally constructed, comprised a single dwelling, and
  3. the landlord resides in the other dwelling.

References

Before any type of tenancy is granted, proper checks should be made on each of the proposed tenants. Those checks should generally include at least two references, one of which should confirm the financial standing of the proposed tenant and whether they can afford to pay the rent. The references can be obtained from a previous landlord, an accountant, an employer or a bank or a building society, for example.

Every tenant is a potential problem and a landlord should make detailed checks before letting them have possession of your property. References may look good on the surface but they could be forged or be exaggerated, so it is recommended that you should not always take them at face value. Where possible, a landlord should consider speaking with the referees and possibly in some cases ask for bank statements or get a credit report.

How to set up a tenancy?

A tenancy, including sub-tenancies, may be oral or in writing or implied. A tenancy can be set up by the landlord and tenant agreeing the terms of the tenancy; for example, the length of the tenancy, the rent payable, the obligations and covenants on each party and the rights and entitlements of each etc.

Since July 2009 the definition of tenancy under the Residential Tenancies Act 2004 no longer includes tenancies where the term of the tenancy is more than 35 years. If the duration of a tenancy exceeds 35 years then it does not qualify as a tenancy which must be registered with the Residential Tenancies Board (RTB) under the Residential Tenancies Act, 2004.

Obtaining consents to letting from third parties

If the property being let has a mortgage, there may be a requirement to get the mortgage lender’s agreement to let the property before proceeding.

If the property has a lease, for example a 999 year lease as in the case of most apartment or multi-unit developments, it is always good practice to check the terms of the lease to ensure that it is permissible to let the property and, if necessary, obtain the landlord’s or the management company’s prior agreement to do so.

Tenancies for a fixed term which are greater than 21 years should be registered with the Land Registry.

A landlord should also check with insurers as to whether the building insurance policy will provide cover if the property is let and make arrangements to extend the cover if it does not. Some landlords do not provide for contents insurance cover while other landlords may insist that tenants take out separate contents insurance cover.

Obtaining spousal or civil partner consent

If a landlord is entering into a lease or letting agreement with a tenant to occupy a family or shared home, the consent of the non-owing spouse or civil partner, as appropriate, should be obtained in writing.

Under the Family Home Protection Act 1976 and Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 any ‘disposition’ of the family or shared home (which includes a lease or letting agreement) is void unless the consent of the non-owning spouse or civil partner is obtained in writing.

There is no requirement to obtain the separate consent of the non-owning spouse or civil partner if both husband and wife, or both civil partners agree to, and sign, the tenancy agreement as joint owners and landlords.

Tenancy agreements

Fixed-term tenancies are usually agreed in writing. Periodic tenancies are either informal oral agreements or they are agreed in writing. While a letting or tenancy does not have to be in writing it is advisable to have the tenancy agreement in writing as it is easier to sort out any disagreements which may arise later, and if necessary, to evict the tenant.

Does the tenancy agreement have to comply with certain legislation?

There are many laws that apply to tenancies such as the Residential Tenancies Act 2004, the Housing (Miscellaneous Provisions) Act 2009, the Residential Tenancies (Amendment) Act 2015 and the Planning and Development (Housing) and Residential Tenancies Act 2016. Also the accommodation will have to comply with Gas and Safety Regulations and requirements under the relevant Housing (Rent Books) (Amendment) Regulations.

Statement of Information

The Housing (Rent Books) (Amendment) Regulations, 2010 provide for a statement of information to be given to tenants at the commencement of a tenancy and other requirements, which can be summarised as follows:

  1. The tenant of a house is entitled to enjoy peaceful and exclusive occupation of the house.
  2. Notice of termination of a tenancy must be in writing and must be made in accordance with the provisions of the Residential Tenancies Acts 2004 to 2015 and Residential Tenancies (Amendment) Act 2009.
  3. The landlord is prohibited from impounding the goods of a tenant to secure recovery of rent unpaid as laid down in the Housing (Rent Books) Regulations, 1993.
  4. The landlord is obliged to provide a tenant with a rent book for use throughout the term of the tenancy. The landlord must enter the particulars relating to the tenancy in the rent book, and, in the case of a new tenancy, complete the inventory of furnishings and appliances supplied with the house for the tenant’s exclusive use.
  5. The landlord is obliged to keep the particulars in the rent book up-to-date. Where the rent or any other amount due to the landlord under the tenancy is handed in person by the tenant or by any person acting for the tenant, to the landlord, the landlord must, on receipt, record the payments in the rent book or acknowledge it by way of receipt. Payments not handed over directly - for example those made by banker’s order or direct debit - must, not more than three months after receipt, either be recorded by the landlord in the rent book or acknowledged by way of statement by the landlord to the tenant.
  6. The tenant is obliged to make the rent book available to the landlord to enable the landlord to keep the particulars in it up-to-date.
  7. The landlord of a private rented house is obliged to ensure that the house complies with the minimum standards of accommodation laid down in the Housing (Standards for Rented Houses) Regulations, 2008. The Regulations do not apply to houses let on a temporary or holiday basis, local authority demountable dwellings and communal type accommodation provided by health boards and certain approved non-profit or voluntary bodies. The standards relate to structural condition, heating facilities, food preparation and storage, laundry, ventilation, fire safety, lighting, electricity, gas and refuse facilities, maintenance of common areas and washing facilities etc.
  8. The landlord’s obligation and duties referred to at paragraphs 5 to 8 above may be carried out by an agent of the landlord, acting on behalf of the landlord. Any reference in a statement to ‘house’ includes a flat, apartment or maisonette.

Copies of the Housing Miscellaneous Provisions Act, 2009, the Housing (Standards for Rented House) (Amended) Regulations 2009, the Housing (Standards for Rented Houses) Regulations 2008 and the Housing (Rent Books) Regulations 1993 may be viewed, supplied by or made available for purchase from the Housing Authority or on the Internet.The local authority for the area in which the property is located has the responsibility for the enforcement of the law relating to rent books and standards. The name, address and telephone number of the relevant housing authority should also be confirmed to the tenant.

Finding and managing tenants

Some landlords use letting agents or estate agents to help find tenants for their property and to perform checks on the proposed tenant’s credentials. Some will also collect the rent and provide a full management service so that the landlord will not have to deal directly with the tenants at all. They will charge a fee for their services.

Deposits

A landlord may ask the tenant to pay a deposit before moving into your property to act as security in case he or she leaves the property owing rent or to pay for any damage or unpaid household bills at the end of the tenancy. This amount can be negotiated with the tenant. It is usual to charge at least one month’s rent though some landlords require more than this.

The tenancy agreement should clearly state the circumstances under which part or all of the deposit may be withheld at the end of the tenancy.

For more information on a landlord’s obligation in relation to deposits see the chapter on ‘Tenancy deposits’.

Inventory of fixtures, furnishings and fittings

To help prevent disputes at the end of the tenancy when it comes to the issue of the return of the deposit, it is advisable to agree an inventory providing a description and the condition of any fixtures and fittings, and furniture, kitchen equipment and other items in the property with the tenant at the outset of the tenancy. A copy of the inventory should also be attached to the tenancy agreement and include a condition in the tenancy agreement stating that the tenant agrees that all the items listed are in the property and are in the condition stated. It is also advisable to have photographs of the items attached to avoid any disputes as to the original condition when the tenancy agreement ends.

Rent books

The landlord is obliged to provide a tenant with a rent book for use throughout the term of the tenancy. The landlord must enter the particulars relating to the tenancy in the rent book, and, in the case of a new tenancy, complete the inventory of furnishings and appliances supplied with the house for the tenant’s exclusive use.

You should keep a record of rent payments or provide receipts for rent paid for all tenancies to avoid any disagreements later.

Building energy rating certificate

From the 1st of January 2009 a BER (building energy rating) certificate is compulsory for all homes being rented (there are some exemptions - consult the Sustainable Energy Authority Ireland (SEAI) website for further information). A BER is similar to the energy label for a household electrical appliance. The measurement scale runs from A to G - A-rated homes are the most energy efficient and G the least efficient.

Please visit www.seai.ie for more details on BER Certificates and energy rating.

The landlord is responsible for ensuring that there is a valid BER Certificate energy rating available for prospective tenants. The certificate provides a rating for the building showing its energy efficiency. The ratings are standardised so that the energy efficiency on one building can be easily compared to the energy efficiency on another building.

Each rating is based on the performance of the building itself and its services (such as heating and lighting), rather than the domestic appliances within it. This is known as an asset rating. The certificate also lists the potential rating of the building if all the cost-effective measures were installed.

The ratings will vary according to the age, location, size and condition of the building. The potential rating on the certificate will take these factors into account, and the suggested measures will be tailored so that they are realistic for the particular building.

The certificate also includes a recommendation report, providing information about ways to improve the energy performance of the property. Recommendations include cost-effective improvements and further improvements (that achieve higher standards but are not necessarily cost-effective). For each improvement, the level of cost, typical savings per year and the performance rating after improvement are listed. The potential rating shown on the certificate is based on all the cost-effective recommendations being implemented.

For homes, two ratings are shown:

  • The energy-efficiency rating - this is a measure of a home’s overall efficiency. The higher the rating, the more energy-efficient the home is, and the lower the fuel bills are likely to be.
  • The environmental impact rating - this is a measure of a home’s impact on the environment in terms of carbon dioxide (CO2) emissions - the higher the rating, the less impact it has on the environment.

The only person who is able to produce a BER Certificate is an accredited energy assessor. Once produced, the BER Certificate is valid for ten years.

Providing the report to a prospective tenant

A landlord must provide any prospective tenant with a copy of the BER Certificate and recommendation report, free of charge, at the earliest opportunity and no later than:

  • when any written information about the building is provided in response to a request for information received from the prospective tenant
  • when a viewing is conducted
  • if neither of those occur, before entering into a contract to let

The BER Certificate or rating does not have to be made available if:

  • the landlord believes that the prospective tenant is unlikely to have sufficient funds to purchase or rent the property or is not genuinely interested in renting that type of property
  • the landlord is unlikely to be prepared to rent out the property to the prospective or tenant (although this does not authorise unlawful discrimination)

Penalty for non-compliance

Both the local authorities and Sustainable Energy Authority Ireland (SEI) are responsible for enforcing the requirements of the regulations and failure by the owner, or the agent of such owner, to produce without reasonable excuse within 28 days a printed copy of a BER Certificate is an offence which may be punishable by fine on summary conviction not exceeding €5,000.

A failure by a landlord to produce a BER Certificate to a tenant could be used by a tenant to undermine any contract or lease agreement which was entered into with a landlord. It is therefore vital that a landlord produces a BER Certificate and Advisory Report when the property is offered for let, firstly so as not to delay the completion of a letting and secondly to protect against a tenant attempting to avoid contract or lease agreement subsequently entered into. The Advisory Report will identify how you might improve the energy performance of your home.

If you believe that you have been wrongly issued with a penalty, you can request a review.

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TENANCY AGREEMENTS

This document does not purport to be a legal interpretation of landlord and tenant legislation or common law but provides a simple overview and guidance on residential tenancies in the Republic of Ireland.

Tenancy agreements

A tenancy agreement is a contract between one or more parties (‘tenants’) who pay a sum to occupy property belonging to another (the ‘landlord’). A tenancy agreement may be written or oral, but it is in the interests of both parties to enter into a written agreement so that, if a dispute arises, the terms and conditions of the agreement are clear.

A tenancy agreement gives certain rights to both the landlord and the tenant, for example, the landlord’s right to receive rent for letting the property and the tenant’s right to occupy the property. The landlord and the tenant will have made specific arrangements about the tenancy, such as its duration and these will be part of the tenancy agreement as long as they do not conflict with the law.

Main clauses

A written tenancy agreement should state what kind of tenancy it is. Landlords must always give tenants their name and address, regardless of whether the tenancy is written or not. A tenancy agreement may include any terms that are agreed by both the tenant and landlord so long as they do not conflict with the law. The most important terms to include in a tenancy agreement are:

  • the landlord’s full name and address
  • the full name of the tenant(s)
  • the address of the property being rented
  • the amount of rent to be paid, when it is due, how it should be paid and what it covers (for example does it include any bills?)
  • the length of the agreement
  • the amount of the deposit
  • whether the tenant has permission to leave before the end of the tenancy, and if so, the notice he or she has to give
  • a schedule of contents i.e. inventory
  • any other agreed rules, for example, about pets, guests or smoking

Implied terms

There are some terms which will apply to any tenancy agreement automatically. These are known as ‘implied terms’.

Some of the most common implied terms are:

  • Landlords must carry out basic repairs.
  • Landlords must keep the installations for the supply of water, gas, electricity, sanitation, space heating and heating water in good working order.
  • Tenants have the right to live peacefully in the accommodation without nuisance from the landlord.
  • Landlords must not treat tenants unfairly because of their race, sex, sexuality, disability or religion. There may be some exceptions, for example, if the tenant lives in the same accommodation as the landlord.
  • Tenants have an obligation to take proper care of the accommodation.

How to set up a tenancy

Before any tenancy is set up there will be many organisational steps that a landlord needs to take. First and foremost a suitable tenant needs to be found and proper checks should be conducted including getting at least two references. The references can be obtained from a previous landlord, a previous secured lender, an employer, a bank or a building society, for example.

It is important to note that a landlord is obliged to register a new letting of a residential property (known as a ‘tenancy’) with the Residential Tenancies Board (known as the ‘RTB’). See ‘Obligations of a landlord’ more information.

In addition, you should select a tenancy agreement (see ‘Types of tenancy agreement’ below).

For further information on how to set up or register a tenancy see the chapter on ‘How to set up a tenancy’.

Types of tenancy agreement

There are two broad categories of tenancy agreement:

  • tenancy for a fixed term
  • periodic tenancy where the duration is not specified

The type of tenancy that may best suit your needs depends on your individual circumstances. To read more about the different types of tenancy agreement see ‘Types of tenancy agreements’.

Irrespective, however, of whether or not the tenancy is fixed term or periodic all tenancies become, what is called, a Part 4 tenancy once the tenant is in occupation for more than six months. ‘Part Four’ refers to the relevant section of the Residential Tenancies Act 2004 and is concerned with security of tenure for the tenant and the circumstances under which a tenancy can be terminated.

The only exception to the above regulations, which is at the discretion of the landlord, is where:

  1. the dwelling concerned is one of two dwellings within a building,
  2. that building, as originally constructed, comprised a single dwelling, and
  3. the landlord resides in the other dwelling.

Taking in a lodger

When someone takes in a lodger they are strongly advised to get a legal agreement in place to protect their rights. If one is letting (or thinking of letting) part of their home it is important to understand one’s obligations. Lodgers are not usually seen as tenants in the eyes of the law. However, from time to time a court may be asked to determine whether the relationship of landlord and tenant has been created. To find out more about taking on lodgers see ‘Taking on a lodger’.

Obligations of a landlord

The law protects tenants and it is vital that landlords are aware of their legal obligations to tenants. In particular, the Residential Tenancies Act 2004, as amended, sets out special provisions relating to the legal obligations of a tenant and landlord. Also, special legal protections and requirements are provided for in various health and safety regulations.

In addition, when a tenant fails to pay rent on time or at all, certain steps and procedures should be followed. Landlords should not take the law into their own hands, irrespective of the circumstances; otherwise they may risk a fine or be the subject of a civil sanction or even a criminal conviction.

For information on a landlord’s obligation in relation to deposits see the chapter on ‘Deposits’.

By law, a landlord cannot refuse to rent property to any prospective tenant because of their gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the Travelling community.

A landlord must:

  • register the tenancy agreement with the RTB. Registration forms are available from their website, www.rtb.ie. If a tenancy is not registered a landlord will not be able to avail of the RTB’s dispute resolution service and may also be prosecuted
  • provide the tenant with a rent book (if no written lease is in place) and receipts of payments
  • make sure that the property is in good condition
  • maintain the property to the standard it was at the start of the tenancy
  • reimburse the tenants for any repairs carried out on the structure
  • insure the property, structurally only (it is usually a requirement that the tenant insure their own contents of the property)
  • provide the tenant with any information or contact details of any agent who deals on his or her behalf
  • provide the tenant with his or her contact details if an agent is not used
  • give tenants a minimum of 90 days’ notice of a rent review or notice as agreed
  • give tenants a written notice of termination of tenancy
  • return deposits to the tenant at the end of tenancy if appropriate
  • give tenants notice of any impending inspections of the property

Health and safety

Landlords are generally responsible for the maintenance of and major repairs to a property. This includes repairs to the structure and exterior of the property.

A property must be ‘fit for habitation’. A landlord must ensure a rented property meets the repairing standard (see ‘Health and safety’ for more information). A landlord is obliged to make sure that water, electricity, gas supplies and sanitation (for example, drains, basins, sinks, baths and WCs) are in working order and that the property is free from any damp that could damage the health of the occupier. There are also further structural obligations upon a landlord.

If the property being let does not satisfy these criteria and there is a health risk to the tenant, then he or she may be able to take legal action against the landlord.

Gas safety

Gas appliances and installations that are supplied with the property should be maintained in good order and should receive an annual safety check by a registered professional. A copy of each safety certificate should be retained by the landlord and a copy provided to the tenant upon request.

For further information on this see our chapter on ‘Gas safety’.

Fire safety

If a landlord supplies furniture or furnishings with the property, the landlord must ensure that they meet the fire resistance requirements as set out in the Fire Services Acts as amended and the Housing (Standards for Rented Houses) Regulations 2008.

Fire safety for any home is important but if a property has multiple occupants there are further precautions that should be taken since the risk of fire is greater. For example, considerations will need to be made in relation to the use of fire extinguishers, fire blankets, multiple fire alarms and multiple escape routes.

Article 11 of the Housing (Standard for Rented Houses) Regulations 2008 provides for improved fire safety measures for rented accommodation.

For more information on a landlord’s obligation to take fire precautions see our chapter on ‘Fire safety’.

Electrical safety

Electric appliances and installations that are supplied should be maintained in a good order and should be safe. There is no legal requirement on a landlord to obtain a safety certificate. For further information on electrical safety see our chapter on ‘Electrical safety’.

Rent

If the tenant falls into rent arrears and has not paid, a landlord should act immediately, otherwise the situation could get out of control. In most cases non-legal action will be sufficient. The landlord should first make contact with the tenant by sending a letter demanding that the rent be paid. Most tenants will respond when reminded and remedy the situation. For further information on this see our chapter on ‘Rent arrears’.

Deposit

A tenant is usually required to pay a deposit before moving into a property to act as security in case he or she leaves the property owing rent or to pay for any damage or unpaid household bills at the end of the tenancy. It is usual to charge at least one month’s rent. However some landlords require more than this. It should be stated clearly in the tenancy agreement the circumstances under which part or all of the deposit may be withheld at the end of the tenancy.

For more information on a landlord’s obligation in relation to deposits see our chapter on ‘Tenancy deposits’.

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TYPES OF TENANCY AGREEMENT

Types of tenancy agreement

There are various types of tenancies. Some of the more commonly known ones are described, as follows:

  • tenancy for a fixed term
  • periodic tenancy where the duration is not specified
  • tenancy at sufferance
  • statutory tenancy

Irrespective, however, of what type of tenancy agreement is in place, oral or written, all tenancies become, what is called, a Part 4 tenancy once the tenant is in occupation for more than six months. ‘Part Four’ refers to the relevant section of the Residential Tenancies Act 2004 and is concerned with security of tenure for the tenant and the circumstances under which a tenancy of whatever type can be terminated.

The only exception to the above regulations, which is at the discretion of the landlord, is where:

  1. the dwelling concerned is one of two dwellings within a building,
  2. that building, as originally constructed, comprised a single dwelling, and
  3. the landlord resides in the other dwelling.

Which type of tenancy is in place?

Tenancy for a fixed term

A tenancy may be created for any fixed term, no matter how long or short. In short-term, or most fixed-term tenancies, the term is usually for one year.

Periodic tenancy

A periodic tenancy is a tenancy where the duration is not specified. may be a tenancy from year-to-year which is commonly known as a yearly tenancy. It can also be a tenancy for successive periods of less than a year, such as a weekly or monthly tenancy. A periodic tenancy can be a tenancy from year-to-year or a tenancy for successive periods, such as a monthly or weekly tenancy. In these types of tenancies, each period is automatically renewed and the tenancy will continue indefinitely after the initial period has ended, until the tenancy is eventually terminated. For example, a tenancy under which rent is paid weekly is deemed to be a weekly tenancy, and if paid monthly it would be considered a monthly tenancy etc..

Tenancy at sufferance

A legal tenancy at sufferance can only arise if a tenant continued in possession of a property at the end of a lease or tenancy without paying rent and without the landlord’s consent or dissent.

Statutory tenancy

Legislation confers on tenants certain rights with regard to remaining on as tenants in occupation of a property. The Housing (Private Rented Dwelling) Act, 1982 provided that a person who was a tenant immediately before the Act commenced was entitled to retain possession as the tenant of the dwelling during his lifetime. This became known as a controlled dwelling and the right to retain possession ceased where possession was recovered by the landlord under the 1982 Act.

Also, under the Landlord and Tenant (Amendment) Act, 1980, there is a right of a tenant applying for a new tenancy to remain in possession of the property pending the outcome of his application.

In addition, Part 4 of the Residential Tenancies Act 2004, provides that subject to certain exceptions, a tenant can seek to remain in the property for a further period of time where that person has been in occupation of the property for a continuous period of six months.

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RIGHTS OF A LANDLORD

Termination for breach of tenancy obligations

If a tenant breaches his or her obligations under the Act, then 28 days’ notice needs only be given by the landlord, regardless of the duration of the tenancy. This should be preceded by a warning notice, allowing a reasonable opportunity to remedy the breach if it is a tenancy of more than six months. The Act does not define ‘reasonable’ for this purpose.

If the breach concerns non-payment of rent, and the tenant is in the property for six months or more, a prior notification of arrears must have been sent to the tenant with 14 days having passed before a valid notice of Termination giving 28 days’ notice is served.

Irrespective of the type or duration of a tenancy a landlord can serve a notice of termination giving just seven days’ notice, and no other warning, where the behaviour of the tenant is either anti-social or is threatening to the fabric of the dwelling or the property containing the dwelling.

A reason for termination must always be given where the tenancy has lasted for more than six months or is a fixed term tenancy. See ‘Termination of a tenancy and eviction’ for further details.

Additional rights under the Residential Tenancies Act 2004

In addition to terminating the tenancy the landlord also has the right to;

  • set the rent, once a year, according to the current market rent (but see section ‘Increasing rent’ for amendments to this right)
  • receive the rent from a tenant on the date it is due
  • pay any charges related to the property e.g. taxes and duties
  • end the tenancy without reason within the first six months of the lease agreement (however, care should be taken when dealing with fixed term tenancies as a reason will always have to be given)
  • be informed of who is living in the property
  • decide whether to allow sub-letting by the tenant
  • be informed of any repairs needed and granted access to fit them
  • refer any disputes to the RTB

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OBLIGATIONS OF A LANDLORD

The law protects tenants and it is vital that landlords are aware of their legal obligations to tenants. In particular, there are special laws and procedures that govern health and safety and occupation of the property by the tenant.

In addition, when a tenant fails to pay rent on time or at all, certain steps and procedures should be followed. Landlords should not take the law into their own hands, irrespective of the circumstances; otherwise they may risk a fine or conviction.

Deposits

When the tenancy ends, you are obliged to return the deposit to your tenant. A landlord may withhold a deposit, part or in total, from a tenant if any of the following have occurred:

  1. Your tenant has not given proper notice of termination of the tenancy resulting in loss.
  2. Your tenant left outstanding bills or rent when leaving the accommodation.
  3. Your tenant has damaged the accommodation beyond usual wear and tear.

You should note that there is a general duty on the landlord to mitigate any losses.

Landlord registration

By law a tenancy must be registered with the Residential Tenancies Board (RTB) under the Residential Tenancies Act, 2004. Registration forms are available from their website, www.rtb.ie. If you do not register then you will not be able to avail of the RTB’s dispute resolution service and you may be prosecuted. Also an investor that rents out his property but does not register the tenancy with the RTB may not be able to offset mortgage interest on the investment property as an expense for tax purposes.

Each application will be contained in the Register of Tenancies which is maintained by the RTB. The information on the register is used to provide aggregate data on the private rented sector. Personal details such as the tenant name, landlord name, rent, etc. will not be made public.

The following information is required by the RTB in order to register a tenancy:

  • rented dwelling address
  • dwelling type (i.e. Whole of House/Apartment/Flat)
  • bed spaces & number of occupants
  • approximate floor area in square meters
  • ber Certificate rating (if applicable)
  • local authority in which rented dwelling is located
  • tenancy commencement date
  • landlord name/address/PPS number
  • tenant name/PPS number
  • authorised agent (if applicable) name/address/CRO number/PPS number
  • management company (if applicable) name/address/CRO number

Registration can be done online on www.rtb.ie. A fee is payable to register the tenancy and the completed application to register must be received by the RTB within one month from the tenancy commencement date. A late fee applies where an application to register a tenancy is received more than one month from the tenancy commencement date.

A composite fee is payable for multiple tenancies in the one building being registered at the same time by the one landlord within one month of the commencement date of the first tenancy. If, in the 12 months following the payment of a composite fee, one of the tenancies included in the set of multiple tenancies ends and a new tenancy is created, the application to register that new tenancy does not have to be accompanied by a fee provided it is made within one month of the commencement of that tenancy.

No fee is payable where two payments in respect of the tenancy have been made to the Residential Tenancies Board in the previous 12 months. No fee is payable to update details of a tenancy already registered.

Structure, and health and safety

Landlords are generally responsible for the maintenance of and major repairs to a property. This includes repairs to the structure and exterior of the property.

A property must be ‘fit for habitation’ and therefore a landlord is obliged to make sure that water, electricity, gas supplies and sanitation (for example, drains, basins, sinks, baths and WCs) are in working order and that the property is free from any damp that could damage the health of the occupier. There are also further structural obligations upon a landlord.

If the property being let does not satisfy these criteria and there is a health risk to the tenant, then he or she may be able to take legal action against the landlord.

Gas safety

Gas appliances and installations that are supplied with the property should be maintained in good order and should receive an annual safety check by a professional registered gas appliance servicer or installer. A copy of each safety certificate should be retained and upon request issued to new or existing tenants.

The local authority may also inspect the property where there is a public safety risk and random inspections are typically carried out were the property is rented to a person on the housing list or someone in receipt of rent supplement or rent allowance.

Fire safety

If a landlord supplies furniture or furnishings with the property, these need to be fire resistant and compliant with fire safety standards.

Fire safety for any home is important, but if a property has multiple occupants, there are further precautions that should be taken since the risk of fire is greater. For example, consideration will need to be given to the use of fire extinguishers, fire blankets, multiple fire alarms and multiple escape routes.

Electrical safety

Electric appliances and installations that are supplied should be maintained in a good order and should be safe. There is a legal obligation on a landlord to ensure all electrical appliances provided or fitted by the landlord are free from danger and safe to use.

Energy performance certificates

Before you can market a property for rent you have to have a valid BER Certificate and energy rating available for prospective tenants. The certificate provides a rating for the building showing its energy efficiency. The ratings are similar to those found on products such as fridges and are standardised, so that the energy efficiency on one building can be easily compared to the energy efficiency on another building.

Each rating is based on the performance of the building itself and its services (such as heating and lighting), rather than the domestic appliances within it. This is known as an asset rating. The certificate also lists the potential rating of the building if all the cost-effective measures were installed. The ratings will vary according to the age, location, size and condition of the building. The potential rating on the certificate will take these factors into account, and the suggested measures will be tailored so that they are realistic for the particular building.

Rent

If the tenant falls into rent arrears and has not paid, you must act immediately, otherwise the situation will get out of control. In most cases, initial non-legal action will be sufficient. You should make contact with the tenant by sending a letter demanding that the rent be paid. Most tenants will respond when reminded and remedy the situation.

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TENANCY DEPOSITS

Deposit

You may ask the tenant to pay a deposit before moving into your property to act as security in case he or she leaves the property owing rent or, to pay for any damage or unpaid household bills at the end of the tenancy. You should negotiate the amount with the tenant.

You should state clearly in the tenancy agreement the circumstances under which part or all of the deposit may be withheld at the end of the tenancy.

Deposit refund

To help prevent disputes at the end of the tenancy when it comes to the issue of the return of the deposit, it is advisable to agree an inventory providing a description and the condition of any furniture, kitchen equipment and other items in the property with the tenant at the outset of the tenancy. Tenants can sometime leave a rented property before the end of a fixed period or alternatively they can cause damage to the contents or furniture or fail or refuse to pay rent. This can lead to disputes and disagreements between the landlord and the tenant.

Tenants are entitled to a refund of the deposit paid at the commencement of the tenancy where there is no rent owing in respect of the tenancy and there is no damage to the dwelling beyond normal wear and tear at the end of the tenancy. Landlords are required to refund the deposit promptly less any deductions in respect of outstanding rent and damage in excess of normal wear and tear.

If a tenant ends a tenancy by giving a landlord less than the required period of notice, or only verbal notice, or a written notice that does not comply with the Act, it is at the landlord’s discretion whether to make a deduction from the deposit in respect of the outstanding rent appropriate to the notice period to which he/she was entitled by way of a valid notice of termination. Equally, a tenant who has entered into a tenancy for a fixed term is bound by the terms of the contract entered into and may not terminate the tenancy before expiry of the fixed term unless the contract so allows or there has been a breach of the landlord’s obligations. Therefore if a tenant ends a 1-year lease tenancy 4 months before the term is due to expire, the tenant is liable under that contract for the rent as it falls due for the remainder of the term unless the landlord succeeds in re-letting the dwelling (although a landlord is required to mitigate his/her loss by re-letting the dwelling as speedily as possible). In such circumstances it is at the landlord’s discretion whether or not to retain from the deposit any outstanding rent due under the lease tenancy.

If a tenant does need to get out of a fixed term tenancy and wants to ensure that there are no grounds for retention of the deposit in respect of outstanding rent, the tenant should seek the landlord’s written consent to assign or sub-let the tenancy. If the landlord refuses consent, the tenancy may then be terminated by the tenant by serving a valid notice of termination with the required amount of notice. If the landlord consents to assignment, then the tenant’s tenancy will end and the assignee will commence a new periodic tenancy. If the landlord consents to a sub-letting, then the tenant becomes a landlord (‘head-tenant’) to the new sub¬tenant occupant and the tenancy continues but the tenant may be in a position to obtain the deposit refund by ending his/her own head-tenancy on expiry of the original term, depending on the then status of the sub-tenancy and the deposit arrangements the head-tenant entered into with the sub-tenant.

Deposit disputes

The RTB was set up with a view to moving disputes between landlords and tenants from the remit of the courts so as to reduce the pressure on the courts system. The RTB has a dispute resolution system in place and has heard thousands of disputes since its formation in late 2004. A lot of the disputes heard have centred on the issue of returning deposits at the end of the tenancy.

Please note that in order for landlords to avail of the dispute resolution procedure they must have registered the tenancy with the RTB, however tenants may avail of the procedure irrespective of whether or not the tenancy has been registered.

A dispute may be referred to the RTB for the purposes of mediation or adjudication, or if the dispute is not resolved by either of the aforementioned then a full tribunal hearing may well be necessary. If you are considering submitting a dispute to the RTB, then it is important to check what time limits apply to that particular type of dispute, for example a dispute concerning a proposed rent increase must be referred to the RTB before the increased rent is due to take effect, or within 28 days of the tenant receiving the notice of the proposed rent increase.

Disputes are resolved by means of adjudication (oral and paper based) and mediation.

Mediation is a process where a mediator will attempt to facilitate and encourage the parties to come to their own agreement in respect of the issues under dispute. The mediator will have no decision-making or advisory role in resolving the matter. Both parties must consent to entering the mediation process in order for a mediation to take place

Adjudication is a form of dispute resolution where an adjudicator will enquire fully into all matters relevant to the dispute raised by either party and will either facilitate agreement between the parties, or will make their own determination based on the evidence before them.

Tribunal is the RTB’s appeal process to either the decision of an adjudicator, or where no agreement is reached at mediation, either party can refer their case to tribunal. A Tribunal is slightly more formal than either adjudication or mediation. The cases are heard by a three person panel and the hearings are open to the public.

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INCREASING RENT

How often can rent be raised?

With the enactment of the Residential Tenancies (Amendment) Act 2015 a landlord can only review the rent once in any 24 month period, and cannot review within 24 months of the commencement of the tenancy except in limited circumstances such as a complete refurbishment of the property which affects the market rent of the dwelling.

The Residential Tenancies Act 2004 prohibits the landlord from setting a rent that is in excess of market rent. If a landlord intends reviewing the rent, they must inform the tenant in writing of any review in rent, 90 days before the new revised rent is due to take effect. A valid notice served by the landlord must be in the form prescribed by the RTB.

  • It must state the amount of new rent and the date from which is to have effect.
  • It must include a statement that a dispute must be referred to the RTB on the expiry of 28 days from the receipt by the tenant of that notice or the date the new rent takes effect.
  • It must include a statement by the landlord that it is their opinion that the new rent is not greater than market rent having regard to: the other terms of the tenancy; letting values of dwellings of a similar size, type and character and situated in a comparable area
  • It must specify the rent amount for three comparable dwellings of a similar size, type and character and situated in a comparable area.
  • It must include the date on which the notice is signed
  • It must be signed by the landlord or his/her authorised agent.

A landlord is also required to notify the RTB of the revised rent so that the registration details can be updated.

Rent Pressure Zones

The Planning and Development (Housing) and Residential Tenancies Act 2016 Act also introduced rent predictability measures in certain areas known as Rent Pressure Zones (RPZs).

The rent may be increased in an RPZ but only by a maximum of 4% annually. In addition, the requirement that rent cannot be set at more than market value remains as well as the requirement to provide three comparable properties as examples to demonstrate market rent in that area. If a property in a RPZ is new to the market and it has not been let at any time during the previous two years or it has undergone substantial change then it will be exempt from the rent predictability measures. A ‘substantial change’ must be a significant change to the dwelling resulting in an increased market value of the tenancy.

The rent predictability measures do not have retrospective effect prior to 24th December, 2016. Therefore, where immediately prior to 24th December 2016, a valid notice under Section 22(2) of the Acts had been served on a tenant or the rent review had commenced, in those circumstances the rent predictability measures do not apply to the new rent set.

In setting the rent under a tenancy of a dwelling in an RPZ, the amount of rent cannot be greater than the amount determined by the formula under Section 19 of the Acts (as inserted by Section 34 of the 2016 Act).

The formula is R x (1 + 0.04 x T/M) where:

  • R = The amount of rent last set under a tenancy for the dwelling (the current rent amount).
  • T = The number of months between the date the current rent came in to effect and the date the new rent amount will come in to effect.
  • M = either 12 or 24.

What happens if there is a dispute concerning increased rent?

Where a valid notice of a rent review has been served by the landlord then either party can submit a dispute to the RTB before the new rent is to have effect or before expiry of 28 days from the tenant receiving that notice, whichever is the later. There is no time limit where an invalid notice is served.

What does it cost and is there a hearing?

The is a fee for dispute resolution which varies depending on whether the application is made online or not. Parties may choose either adjudication or mediation in order to resolve their dispute. Both dispute resolution mechanisms usually involve a hearing with the parties and either an independent adjudicator or mediator in attendance. Some cases are processed by evidence submitted only.

Varying the terms of a letting agreement or lease.

It is always open to the landlord and tenant to vary the terms or rent under a lease by agreement. Terms cannot normally be varied by one party alone.

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RENT ARREARS

Despite your best efforts, there may be times that your tenant falls into rent arrears. This possibility can never be entirely eliminated and there is always a risk that your tenant will lose control of their finances. When considering methods of payment it is best to insist that your tenant pays by standing order so that the amount is directly debited from their bank accounts. This ensures that the money arrives regularly and allows you to effectively monitor whether the rent has been received. Arrangements where the tenant pays by cheque entail an anxious wait around the due date and permit the tenant to delay payment and make excuses.

Monitor your bank account regularly to make sure that payment has been made. It is best to do this via internet banking rather than relying on statements so that you are always aware of missed payments. Remember to keep full and accurate rent records in a form a court would be able to understand as the burden of proving rent arrears is on the landlord.

If the tenant falls into rent arrears and hasn’t paid, you must act immediately, otherwise the situation will get out of control. In addition, you need to ensure that you don’t create an impression that you are willing to overlook the fact that the tenant hasn’t paid, for instance by contacting the tenant to discuss other matters related to the tenancy without mentioning the rent arrears. First establish why the rent has not been paid. There may be a legitimate reason for the missed payment such as the tenant switching accounts or forgetting to post the cheque.

You should make contact with the tenant by sending a letter demanding that the rent be paid.

Most tenants will respond when reminded and remedy the situation. If the letter is ignored the problem may be a serious one and you will have to take further measures. It is wise to mediate with the tenant to try and establish why the rent has not been paid. It may be that the tenant has lost his job or is having debt problems. In this situation it may be possible to come to a mutually beneficial arrangement with payment timescales and back payments that the tenant is better able to meet. It is best to set this course of action out in writing so that the terms are clear. Do not include the security deposit as a rent payment since this is the only security in the situation.

Termination of a Part 4 tenancy by a landlord for rent arrears cases

A Part 4 tenancy is a tenancy for duration longer than six months which entitles the tenant to remain in occupation for a period of six years unless a valid notice of termination is served by either the landlord or tenant. Where a landlord seeks to terminate a Part 4 tenancy because the tenant has failed to pay rent, the following two-step procedure must be followed:

  1. serve a 14-day warning notice for failure to pay rent
  2. serve a 28-day notice of termination of the tenancy

Further explanation of each of these crucial steps is available on www.rtb.ie.

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HOUSE IN MULTIPLE OCCUPATION

Flats and bedsits or house in multiple occupation

The Residential Tenancies Act applies equally to all tenants in private rented dwelling whether or not the tenants are living in a flat, bedsit, apartment or house. The landlord is obliged to register all tenancies and the applicable fee and registration form for each tenancy must be submitted to the RTB to register a tenancy. See www.rtb.ie for more information.

A landlord that fails to register a tenancy may be fined. There are implications for a landlord in terms of the mortgage interest a landlord may wish to offset against income tax on rental income received from the investment property should the landlord not register. Also, if a landlord does not register a tenancy, the landlord will not be permitted to use the RTB dispute resolution process however the tenants will nonetheless be able to submit a claim to the Injuries Board. However the RTB Act provides some limited exceptions to the requirement to register. Please visit www.rtb.ie for more information.

The registration of some tenancies in certain dwellings (a ‘dwelling’ means, a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard and garden) is exempt:

Excluded properties

  1. a dwelling that is used wholly or partly for the purpose of carrying on a business (the exemption does not apply to a dwelling that is, for example, above a retail unit)
  2. a dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies
  3. a dwelling let by or to a public authority or voluntary housing bodies (i.e. an approved voluntary housing body which provides housing to persons who have a particular housing need e.g. the homeless, the elderly, the disabled, to name only a few on the list) and which is occupied by a person referred to in section 9 (2) of the Housing Act 1988)
  4. a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978, the fee simple in respect of it
  5. a dwelling occupied under a shared ownership lease
  6. a dwelling let to a person whose entitlement to occupation is for the purpose of a holiday only
  7. a dwelling within which the landlord also resides (i.e. landlord and tenant share the same self-contained property)
  8. a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling
  9. a dwelling the subject of a tenancy granted under Part II of the Landlord and Tenant (Amendment) Act 1980 or under Part III of the Landlord and Tenant Act 1931 or which is the subject of an application made under section 21 of the Landlord and Tenant (Amendment) Act 1980 and the court has yet to make its determination in the matter
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TAKING ON A LODGER

Overview

Letting rooms can be a useful way to get extra income and an individual is allowed to earn tax-free income from letting a furnished room in their home.

The main drawback is that other than sharing with a friend or relative who is in need of a room it will mean taking in a stranger which does involve a certain degree of risk and lifestyle change. A person enters a business relationship when they let a room in their home and is strongly advised to get a legal agreement in place.

Rights of homeowner and tenant

Someone letting part of their home should understand their obligations.There is a distinction made between lodgers and so called ‘sub-tenants’. Lodgers are not seen as tenants in the eyes of the law. The lodger’s occupation of the room is under the control of the owner of the home and the terms of the occupation are determined by contract. That is, if things were to go disastrously wrong, a homeowner can end a lodging agreement without needing a court order. However, if the lodger refuses to leave a court order may be required and they must not be forcibly evicted.

Licensing arrangements in private rented dwellings are often confused with sub-letting and assignments. The difference is that when a tenant assigns or sublets their rental accommodation they no longer live in it whereas the licensee shares the accommodation with the tenant.

Thus the law provides that a person may occupy property or a room in a house as a lodger under a licence or licence agreement. The terms of the licence governs the rights of each party. The creation of a verbal or contractual licence agreement does not, in and of itself, give rise to a landlord and tenancy relationship. A form of agreement described as a licence is often used by parties who wish to avoid the effects of statutory restrictions or the requirements of the Residential Tenancies Act 2004. For example, a person classified as a tenant will have a right of renewal, a right to be provided with sufficient notice of termination of tenancy etc. It is important to note, however, that the courts have on some occasions interpreted arrangements described as a ‘licence agreement’ as in fact a tenancy agreement.

Licence arrangement or tenancy arrangement?

The following are the main elements that may differentiate a licence from another type of interests in a property:

  1. In the case of a lodging arrangement, it is usual for the owner to allow the lodger to take and use a room in a house in return for a weekly or monthly payment and the owner usually reserves the right to terminate the relationship at short notice.
  2. Broadly, a lodger does not have a right to challenge the level of rent that he or she has agreed to pay. Nor does the lodger have exclusive use of the entire premises. The fact that the owner retains control over the premises and the lodgers’ lack of possession independent of the owner is what distinguishes a lodger from a tenant.A licensee or lodger does not usually have exclusive possession. If they have exclusive possession of the property that may be proof of the existence of a tenancy.
  3. A licence or lodging arrangement only gives a person personal rights. There is no interest assigned to the licensee or lodger and so they have no statutory protection at law.
  4. A licensee or lodger cannot claim adverse possession of the property given they are occupying the property with the owner’s consent.
  5. A simple licence (i.e. were no payment is made for the lodging) is revocable at any time, whereas a contractual licence or lodging agreement is subject to the terms of the contract.
  6. A licence or lodging agreement may have to be examined to see whether the relationship between the parties is in fact a licence, lodging relationship or an agreement that has given rise to a tenancy agreement. This is required when a dispute arises and the parties need to determine their legal rights and entitlements.

In the case of a dispute between a lodger and owner or licensor, a number of issues will have to be examined, for example, the term the parties to describe themselves; the payment terms including payment dates; the relationship between the parties; the degree of control exercised by the owner or licensor; the repair and other obligations on the parties; the right of the owner or licensor to enter and retake possession of the property etc.

Lodger’s rights

Broadly, a lodger does not have a right to challenge the level of rent that he or she has agreed to pay. Nor does the lodger have exclusive use of the entire premises. The fact that the owner retains control over the premises and the lodger’s lack of possession independent of the owner is what distinguishes a lodger from a tenant.

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HOUSEHOLD ELECTRICAL SAFETY

It goes without saying that you should ensure that the electrics and electrical appliances supplied are safe in any property you let.

You should carry out your own visual inspections as landlord or agent and have periodic checks carried out by a qualified electrician.

What your property should have:

  • an adequate number of sockets in each room
  • a safe electrical installation. This is certified by an electrical test certificate or similarly accredited engineer
  • safe electrical appliances

Steps to ensure your property is safe

At a minimum, you should, carry out an annual visual inspection and keep a record on a safety checklist. You should also carry out an inspection when your tenants change, recording electrical equipment and its condition and fuses fitted. Have periodic inspections of electrical equipment by a qualified electrician. It is advisable to have 5 yearly inspections by a qualified electrician to ensure safety and that the electrical system complies with current electrical regulations. Copies of the certificate for the check should be made available to your tenants. Keep all records of these inspections.

Things to avoid

Try to avoid buying second hand appliances as they can often be near the end of their working life or are already defective. Never ignore worn flexes to appliances or discard operating instructions for appliances.

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HEALTH & SAFETY

What standards must your accommodation meet?

By law, rented property must be of a minimum standard. If the property does not comply with these standards, then you, as landlord, could be prosecuted. Local authorities are responsible for enforcing these standards and carry out regular inspections of rented accommodation.

Landlords are generally responsible for the maintenance and major repairs to a property. This includes repairs to the structure and exterior of the property, heating and hot water installations, basins, sinks, baths and other sanitary installations

The Landlord must provide the Tenant with minimum standards in accordance with the Housing Miscellaneous Provisions Act, 2009, the Housing (Standards for Rented House) (Amended) Regulations 2009 and the Housing (Standards for Rented Houses) Regulations 2008, to include, as follows:

  • a fire blanket and either a mains wired smoke alarm or two or more ten year self-contained battery operated smoke alarms
  • in the case of a multi-unit complex or self-contained unit, a main wired smoke alarm, fire blanket and emergency evacuation plans must be provided
  • in the case of a rented property within a multi-unit complex, emergency lighting must be provided in the common areas
  • an oven, grill or four ring hob
  • adequate extraction apparatus in the form of an over cooker hood or extractor fan
  • a fridge/freezer or a separate fridge and freezer
  • a microwave
  • use of or access to a washing machine or communal washing machine within the confines of the rented accommodation
  • if the rented property does not include a yard or garden area for exclusive use of that property, then the Landlord must provide the tenant with a dryer
  • washing facilities, to include, sink and fixed bath or shower with an adequate piped supply of cold water
  • adequate cupboard and kitchen presses for the purposes of food storage
  • access to an adequate supply of piped hot water
  • the building must be free from damp and in good structural repair
  • all appliances provided in good working order
  • electrical wiring, gas and water pipes all should be in good repair

Further details of what standards you need to comply with when renting accommodation, are available on the RTB website.

If the property you let out does not satisfy these criteria and/or is a health risk, a tenant or local authority may be able to take legal action against the landlord.

Gas and electrical safety

A landlord must ensure that all gas appliances and installations you supply are maintained in good order and that an annual safety check is carried out by someone who is registered.

A landlord should keep a record of the safety checks, and should issue it to the occupier upon request. Landlords should retain their gas safety records as proof of service and maintenance. The occupier is responsible for maintaining gas appliances that they own, or is entitled to take with them at the end of the letting.

By law, you must ensure that the electrical system and any electrical appliances supplied with the let such as cookers, kettles, toasters, washing machines and immersion heaters are safe to use. If you are supplying new appliances, you should also provide any accompanying instruction booklets.

For more information, see our chapter on ‘Gas safety’ and our chapter on ‘Electrical safety’.

Fire safety

Fire safety for any home is important, but if a property has multiple occupants it must be considered seriously since the risk of fire is greater.

As for any other home, it is a good idea to ensure that:

  • all occupiers know their way round the house to help prevention and escape from fire
  • smoke alarms are fitted; ideally one should be fitted on each floor of the property
  • a fire blanket is placed in the kitchen
  • it has a fire extinguisher

Fire safety of furniture

If you supply furniture or furnishings with the property, you should ensure that they are fire resistant and it is advisable to provide fire extinguishers, fire blankets, multiple fire alarms and multiple escape routes to tenants of a multiple or single dwelling.

For more information, see our chapter on ‘Fire safety’.

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GAS SAFETY

The gas safety regulations specifically deal with the installation, maintenance and use of gas appliances, fittings and flues in domestic and certain commercial premises. They place duties on landlords to ensure that gas appliances, fittings and flues provided for tenants’ use are safe.

What are my main duties as a landlord?

You are required to:

  • ensure gas fittings and flues are maintained in a safe condition. Gas appliances should be serviced in accordance with the manufacturer’s instructions. If these are not available it is recommended that they are serviced annually unless advised otherwise by an engineer who is a Registered Gas Installer
  • ensure an annual safety check is carried out on each gas appliance/flue. Before any new lease starts, you must make sure that these checks have been carried out within one year before the start of the lease date, unless the appliances in the property have been installed for less than 12 months, in which case, they should be checked within 12 months of their installation date
  • have all installation, maintenance and safety checks carried out by a gas engineer who is a Registered Gas Installer
  • keep a record of each safety check for at least 2 years
  • issue a copy of the latest safety check record to existing tenants within 28 days of the check being completed, or to any new tenant before they move in (in certain cases there is an option to display the record). The regulations specify the gas safety matters to be covered. You should not assume that an annual service inspection meets the safety check requirement, or that a safety check will, on its own, be sufficient to provide effective maintenance. Ask the advice of a registered gas engineer where necessary

Can I delegate duties to a tenant?

No, except that a contract may be drawn up between a landlord or tenant for an appliance or flue installed in a non-residential part of a premises, for example, shops and public houses etc. Your tenant has a duty not to use an appliance they believe to be dangerous.

What happens if I use a managing agent?

The landlord retains overall responsibility for ensuring compliance with requirements. The management contract should clearly identify who is to make arrangements for maintenance and safety checks to be carried out and to keep records.

What if the property is sub-let?

In these situations the ‘original’ landlord may retain duties which overlap with those acquired by the person who sub-lets. In such cases, close co-operation and clear allocation of duties is essential to ensure that legal duties are fully met, and that the terms of the contract properly safeguard tenants’ safety.

What action is required to gain access to property?

The contract you draw up with the tenant should allow you access for any maintenance or safety check work to be carried out. You have to take ‘all reasonable steps’ to ensure this work is carried out, and this may involve giving written notice to a tenant requesting access, and explaining the reason. Keep a record of any action, in case a tenant refuses access and you have to demonstrate what steps have been taken. If a tenant continues to refuse access after repeated contacts, you may need to consider proper action through the courts under the terms of the tenants’ contract. However, do not use force to gain entry into the property.

How do I know whether the gas engineer is registered?

The engineer should be a Registered Gas Installer and should carry an ID card which will contain a unique licence number and what they are qualified to do. You should always ask to see ID.

What if an appliance fails the safety check?

The safety check record will contain details of any defect identified and remedial action taken. You must ensure that any safety defect is rectified before the equipment is used again. It is recommended that you keep copies of work done to rectify defects identified by the safety check.

In no circumstances should you reconnect an appliance which has been isolated or disconnected for safety reasons, until the fault has been rectified.

What happens if I don’t maintain my tenant’s gas appliances?

Failure to do so may result in loss of life.

What action do I take in the event of a gas escape?

If you smell gas, or suspect there is a gas escape, you should immediately do the following:

  • Open all doors and windows.
  • Shut off the gas supply at the meter control valve (if you know where it is). If gas continues to escape, call the Bord Gais helpline.
  • In the case of suspected carbon monoxide leakage, follow the above procedure, except if you are able to identify the specific appliance at fault. In this case you should consult a registered engineer to investigate and make repairs.

If you provide liquefied petroleum gas (LPG) for use by a tenant in premises other than a building, e.g. a caravan or holiday home, you must discuss emergency arrangements with your LPG supplier and agree what action to take in case of a gas escape or emission of carbon monoxide from any LPG appliance.

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FIRE SAFETY

The Housing (Standards for Rented Houses) Regulations 2008 and Housing (Standards for Rented Houses) Amendment) Regulations 2009 provide that all rental units that do not form part of a multiple unit must be provided with a fire blanket and two ten-year self- contained battery operated smoke alarms.

Larger properties/Multi-unit buildings

Multi –unit dwellings are required to contain a mains wired smoke alarm, a fire blanket, emergency lighting in common areas and an emergency evacuation plan and all residents must be made aware of what to do in the event of a fire.

You should carry out a risk assessment, or have one carried out on your behalf, to establish both the risk of fire occurring and the risk to people in the event of fire. This would apply to everyone and should take adequate account of any people with special needs. Such a risk assessment will show whether the existing fire precautions are adequate, and what changes need to be made if not.

Fire safety equipment must be regularly maintained according to the manufacturer’s recommendations. Furthermore, if a fire started in your property and the furnishings were found to be below regulatory standards, you would face serious penalties for contributing to any deaths or injuries.

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TERMINATION OF TENANCY AND EVICTION

It is vital that landlords know what to do when they need to evict a tenant, so that they are on the right side of the law. The law on private residential tenancies requires landlords to follow certain procedures before asking a tenant to leave rented accommodation. Failure to follow procedure properly could result in you being unable to recover possession of your property or facing criminal or civil proceedings.

Tenancies not covered by the Residential Tenancies Act 2004

If you are living in your landlord’s home or renting from a local authority or a social housing organisation (such as housing association accommodation or student accommodation let by a recognised educational institution) you are not covered by this legislation. In such circumstances visit www.rtb.ie for further information. A Notice to Quit and Eviction will be required and if necessary a Court Order for possession may be obtained.

The advice contained in these pages concerns private residential tenancies under the Residential Tenancies Act. It will give you the information you need to help you successfully, and legally, evict a tenant and regain possession of your property. The advice contained in these pages is a guide only. Further advice should be sought relevant to the situation.

Termination of a tenancy by the landlord by valid notice (see section 62 of the Residential Tenancies Act 2004)

In order to be valid, a notice of termination must:

  • be in writing
  • be signed by the landlord or his or her authorised agent or, as appropriate, the tenant
  • specify the date of service
  • state the reason for termination (where the tenancy has lasted for more than 6 months or is a fixed term tenancy)
  • specify the termination date and also that the tenant has the whole of the 24 hours of this date to vacate possession
  • state that any issue as to the validity of the notice or the right of the landlord to serve it must be referred to the RTB within 28 days from the receipt of the notice

Notice periods for the termination of a tenancy by the landlord

The minimum notice period to terminate a tenant’s tenancy is determined by the duration of the tenancy and is set out in the Residential Tenancies Act 2004 as per next panel.

The terms of a letting agreement in place may provide for greater periods of notice to be given to the tenant. The table below applies where the termination is not due to breaches of tenant obligations.

Notice Period and 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 years or more but less than 5 years

140 days - 5 years or more but less than 6 years

168 days - 6 years or more but less than 7 years

196 days - 7 years or more but less than 8 years

224 days - 8 years or more

It is also possible for the landlord and tenant to agree a shorter period of notice, but this can only be agreed at the time the notice is given (see section 69 of the Residential Tenancies Act 2004).

Reasons to be given in the notice (see section 34 of the Residential Tenancies Act 2004)

In general, where a tenancy has lasted more than six months and less than six years, the reason for the termination must be stated in the notice 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 (having
  • first been notified of the failure and given an opportunity to remedy it)
  • 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*
*For these grounds, the termination notice must contain certain additional details as specified in the Act as well as informing the tenant that they have first refusal to resume the tenancy should the dwelling become available for re-letting.

Termination for breach of tenancy obligations (see section 67 of the Residential Tenancies Act 2004)

If a tenant breaches his or her obligations under the Act, then 28 days’ notice needs only be given, regardless of the duration of the tenancy. This should be preceded by a warning notice, allowing a reasonable opportunity to remedy the breach if it is a tenancy of 6 months or over. Generally no preliminary notice needs to be served in respect of a fixed term tenancy.

If the breach concerns non-payment of rent, a prior notification of arrears must have been sent to the tenant with 14 days having passed before a valid notice of Termination giving 28 days’ notice is served.

If termination is required for serious anti-social behaviour (as defined in section 17(1) of the Act), then a notice of Termination may be served giving a 7 day notice period.

Termination of fixed term tenancies by the landlord

A fixed term tenancy should last for its duration and should only be terminated if:

  • The tenant or landlord has breached one of the conditions of the lease and/or their obligations under the Act.
  • The landlord has refused a request by the tenant for assignment of the lease, allowing the tenant to serve a notice (see section 186 of the Residential Tenancies Act 2004).
  • There are provisions incorporated into the agreement allowing for early termination (i.e. a break clause).

Regardless of the duration of the letting, the notice of Termination must specify the reason for the termination. If the reason is for arrears of rent, then the 14 day warning letter above must still be sent in advance of the notice. Unless it is specified as a condition of the letting agreement, the tenant is generally not entitled to an opportunity to remedy the breach prior to service of the notice.

Generally, the reasons under section 34 are not valid grounds for terminating a fixed term tenancy. They can only be used if they have been incorporated as conditions in the fixed term letting agreement.

Termination of tenancy by tenant

The same criteria for the notice content apply if a tenant is serving it on the landlord. However no reason needs to be stated if terminating for reasons other than breach of landlord obligations. The longest notice of period that needs to be given by a tenant is 56 days as per below:

Notice Period and 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 4 years

84 days - 4 years or more but less than 8 years

112 days - 8 years or more

It is also possible for the landlord and tenant to agree a shorter period of notice, but this can only be agreed at the time the notice is given (See Section 69 of the Residential Tenancies Act).

Termination for breach of landlord obligations

A tenant may give 28 days’ notice owing to a landlord’s breach of his/her obligations under the Act/letting agreement, regardless of the length of the tenancy. However, the tenant will have to notify the landlord of the failure to comply with his/her obligations in writing, allowing reasonable time for the landlord to remedy the failure. If the situation is not remedied within this time, the notice may be served.

If the landlord’s behaviour is such that it poses imminent danger of death or serious injury or imminent danger to the fabric of the dwelling, then a 7 day notice may be served. No prior notice need be served in this situation.

Termination of a fixed term tenancy by the tenant

The same considerations apply here as for termination by the Landlord above. However, the tenant must give prior warning of the failure by the landlord to comply with tenancy obligations with a reasonable period for the landlord to remedy this. If the failure persists outside this period, then the 28 day notice may be served.

If the landlord refuses consent to a request to assign or sublet the tenancy, section 186 of the Residential Tenancies Act 2004 will apply and a notice of termination may be served by the tenant. The notice should specify the reason and give the appropriate period of notice required to be given by a tenant as per the chart in this section.

What to do at the end of the tenancy

Tenancies are lawfully terminated either on expiry of the fixed term or for breach of the letting conditions, or for periodic tenancies, upon the expiry of a valid notice of termination, subject to a dispute re validity of the notice or over holding being referred to the Board.

When the tenancy is due to terminate you should:

  • arrange a time with the tenant for a final inspection of the dwelling
  • you may wish to arrange a prior inspection before the notice period expires to identify any issues (such as damage/breakages) the tenant may need to address before the tenancy ends; and then on the day of termination carry out a final inspection
  • if an inventory/condition report on the dwelling was provided to the tenant at the commencement of the tenancy, you should go through this with the tenant and indicate any damage/breakages over and above normal wear and tear
  • if the dwelling is not in a reasonably clean and tidy condition then you should agree with the tenant how the cleaning is to be done; the tenant can undertake to carry out the cleaning or you can undertake this and the cost to be deducted from the deposit
  • seek confirmation that the tenant will close any accounts with utilities, such as ESB, Gas etc., on leaving
  • if possible seek the tenant’s new address and new telephone number (so you can forward any correspondence)
  • arrange for the return of the keys and the refund of the deposit

If a Notice of Termination is not complied with and the tenant over holds (continues in the property), the only recourse is to refer a dispute to the RTB about the tenant’s failure to comply with a valid Notice of Termination. A dispute case referred to the RTB about an illegal eviction will be given priority and there are procedures in the Residential Tenancies Act under which the RTB may apply to the Circuit Court for an interim or interlocutory injunction to restrain the landlord and re-instate the tenant pending the Board’s determination of the dispute.

If a tenant has vacated a dwelling and the rent is at least 28 days in arrears, the tenant’s tenancy is deemed terminated under section 37 of the Residential Tenancies Act 2004 and the landlord (if satisfied that these conditions are met) is free to recover possession.

Illegal evictions

If a landlord locks out or physically evicts a tenant, the tenant may be able to apply for an injunction to force him/her to let you back into the property or you may apply to the RTB to do so on your behalf. Similarly if a landlord cuts off water, gas or electricity, you may be able to take legal action to restore the supply. In either case, you should get legal advice and assistance before you proceed. A landlord cannot remove your possessions from your flat or house property while your tenancy is still in existence (though after a tenancy has ended, a landlord is under no legal obligation to store or maintain belongings).

If a landlord is going to refer a dispute to the RTB, you should get advice about your situation from Threshold or a solicitor. The Free Legal Advice Centres (FLAC) operates a network of legal advice clinics throughout the State. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.

Delivery of the initial letter/notice of termination

If the landlord wants a tenant to leave, he/she must serve you a notice of termination on the tenant. The notice can be posted or handed to the tenant, or be left for the tenant at the property.

You should record the date when the letter was sent to the tenant, who the letter was given to and how it was sent (e.g. by hand, registered post). You should make a note of what is called the ‘deemed date of delivery’. This term refers to the date which the RTB or a court will say that the letter has been served on the tenant, which is not the necessarily the same day that you wrote/sent the letter and is determined by the method you used to send the letter. We recommend that, whenever possible, you give the letter to your tenant by hand and get them to sign a copy of the letter to confirm that you have given it to them.

Conversations with the tenants regarding rent arrears

Although you should inform your tenant of the rent arrears in writing, you may also have spoken to the tenant about the arrears. If you have, then as soon as possible after having the conversation you should make a record of it and any other conversations you have had with the tenant as well as the outcome. Your record should include the time, date and location, as well as the name of anyone involved in the conversation and a summary of what was said and/or agreed. This information may prove valuable in case you have to take your tenant to court.

Rent arrears and financial hardship

You should start to keep a record of the rent payments due and received from the tenants, including a running balance of any arrears.

If the arrears are causing you any financial hardship then you should also retain any records or documents that you have to prove this, such as letters from your mortgage provider regarding arrears of mortgage payments, threats to repossess etc.

Giving assistance in paying rent

In your letter to the tenant informing him/her of the rent arrears, you may want to offer assistance in making their payments by allowing him/her to repay the arrears in weekly or monthly instalments. If your tenant has fallen into hard times, e.g. made redundant or recently divorced, making such an arrangement may help them pay the rent and avoid the problem escalating. If you do have to take the matter to court, showing that you have offered assistance in such a way may also help your case in court.

If the tenant does not pay they are in default of their obligations and the landlord will be entitled to issue a Notice of Termination giving 28 days’ notice. Should the tenant refuse to vacate the property following the expiry of the notice period you should contact the RTB and serve the proper notice etc.

Under no circumstances should you attempt to evict the tenants yourself without a court order, for example, by changing the locks.

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DISPUTE RESOLUTION BEFORE THE RTB

A landlord or tenant can submit a case to the RTB for dispute resolution whether the matter concerns non-payment of rent, notice of termination of tenancy or any other matter. Disputes are resolved by means of Adjudication (oral and paper based) and mediation.

Mediation is a process where a mediator will attempt to facilitate and encourage the parties to come to their own agreement in respect of the issues under dispute. The mediator will have no decision-making or advisory role in resolving the matter. Both parties must consent to entering the mediation process in order for a mediation to take place

Adjudication is a form of dispute resolution where an adjudicator will enquire fully into all matters relevant to the dispute raised by either party and will either facilitate agreement between the parties, or will make their own determination based on the evidence before them.

Tribunal is the RTB’s appeal process to either the decision of an adjudicator, or where no agreement is reached at mediation, either party can refer their case to tribunal. A Tribunal is slightly more formal than either adjudication or mediation. The cases are heard by a three person panel and the hearings are open to the public

A Determination Order will issue by the RTB to the landlord and tenant once the dispute resolution process is complete. A Determination Order sets out the terms to be complied with, including for example payments owing, eviction and the length of time given to comply (compliance period).

The compliance period runs from the date of issue of the Determination Order. Specifically, this refers to the date on the cover letter enclosing the Determination Order and not to the date the Order was made by the Board.

Parties are obliged to deal with compliance/payment arrangements directly between each other and neither party will ordinarily receive a notice or reminder from the RTB in this regard. (Further involvement by the RTB will only occur on receipt of a request to consider taking enforcement proceedings on behalf of a party, where the matter cannot be settled directly between parties.)

A party who fails to comply with one or more terms of a Determination Order is open to having either criminal or civil proceedings taken against him/her in the Courts.

The party in favour of whom the Determination Order is made (or the RTB on their behalf) may commence enforcement proceedings through the Courts where satisfied that there has been non-compliance with the terms of an Order.

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AVOIDING DISPUTES WITH TENANTS

The following checklist may help a landlord to avoid or at least minimise disputes with tenants:

  • check prospective tenants’ references before renting out the accommodation
  • when accepting deposits, provide a receipt for the tenant
  • if a lease agreement is used, give a copy to the tenant and explain the contents
  • create a list of the contents and condition of all items in the property and get the tenant to sign this to confirm their agreement
  • show new tenants around the property and make sure they know how the appliances work and are familiar with the arrangements for disposing of the household and garden rubbish
  • provide a rent book for the tenant and make sure that all payments are recorded in it whether rent or other charges, if there is no written lease
  • every three months, ask the tenant if everything is satisfactory and if so, have them to sign a statement confirming this, dated accordingly
  • if a tenant reports a problem, deal with it as soon as possible and give them regular updates about the efforts you are making to resolve it
  • if a problem does arise, first try to settle differences directly with the tenant
  • if you need further advice contact a local Citizens Information Centre (check phone book for local contact details)
  • if you are unable to resolve the dispute then you may have to take your case to the RTB (www.rtb.ie)
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TAKING A MATTER TO COURT

Unenforceability of RTB determination orders

In the absence of a Court order it is not possible to physically remove or “evict” a non-compliant tenant from a property or, for example, to appoint a sheriff to seize goods in satisfaction of payment of a debt. Court proceedings must be issued to enforce RTB orders unless the RTB is prepared to enforce a determination order itself.

The RTB’s enforcement policy concerning its determination orders is available for viewing on www.rtb.ie. The information below provides some information about how a landlord can approach enforcing a RTB order himself, through his own solicitor.

Circuit Court civil proceedings

If a tenant refuses to comply with the RTB determination order then it is open to the landlord to issue proceedings in the Circuit Court under Section 124 of the Residential Tenancies Act.

You can initiate the proceedings by issuing and serving a notice of motion and grounding affidavit seeking relief under Section 124 of the Residential Tenancies Act 2004. The landlord can seek an order to recover possession together with an order to recover all rent arrears up to the hearing date and any damages as the circumstances may require.

If the tenant does not contest the application it is likely, although never certain, that a landlord would succeed in obtaining a court order enforcing the RTB order as the court will be simply affirming the order of the RTB. Landlords should be aware, however, that if the tenant fails to attend the court hearing on the day, there is a possibility that the judge could adjourn the matter to allow the tenant a further opportunity to respond to the motion. In this way, even if a non-compliant tenant does not contest a landlord’s application in some cases it may take a few court appearances to obtain a Court order.

This application would have to be funded by the landlord. However, a landlord could seek a Court order to recover costs. Although there is no guarantee that an award of costs would be made in the landlord’s favour, generally costs follow the event.

The sheriff

If the tenant fails to comply with the terms of the Circuit Court order to deliver possession of the property and/or pay all sums owing, the landlord can apply to the Circuit Court office for an execution order directing the Sheriff’s Office to obtain vacant possession and to seize the tenant’s goods to satisfy any sums due under the Court order.

If a landlord has secured an order for the costs of the application, generally it is not possible to seek an execution order in respect of these sums without first having the costs taxed by the Taxing Master, which could take several months. The objective is to recover possession of the property and all rent arrears as soon as possible and so your solicitor may recommend that you proceed immediately with the execution of the orders to recover possession and all rent arrears and damages due under the Court order. If the landlord feels the tenant has an ability to pay they could pursue the tenant for the costs at a later stage.

Once the execution order issues the original execution order can be sent to the sheriff to enforce. The sheriff will do its best to facilitate a speedy recovery of possession and we recently came across a case where possession of a property was recovered along with goods in satisfaction of the sums owing to the landlord within one month of the request being made to the Sheriff’s Office.

Other enforcement options open to landlords

Once a landlord obtains a Court order directing the payment of all sums owing, if the tenant fails to make payment on foot of that order, there are a number of enforcement options available against an individual debtor other than the sheriff. The right enforcement option will depend on a number of factors, to include the amount of the debt and the profile of the debtor. Some of the most common options include:

  1. The sheriff: The sheriff seizes the goods of the debtor in satisfaction of the debt.
  2. Judgment mortgage: This is the registration of the debt against the tenant’s property. It can sit there and thereby prevent the debtor from selling the property without paying the debt. Alternatively it can be turned into a well charging order and the forced sale of the property can proceed.
  3. Well charging: This is where a court orders the sale of the property to pay off the debt.
  4. Sequestration: This is similar to a sheriff seizing goods but in this instance it is the creditor who applies to court to seize the goods.
  5. Attachment: If the debt is owed by a corporate then it can be attached to a director personally. This is difficult to obtain.
  6. Instalment order/Examination procedure: This is where the tenant must attend the court for examination as to his means. If appropriate, the court could order that the debt be paid in instalments and if the tenant defaults on these the landlord could seek a committal order for the imprisonment of the tenant.
  7. Committal to jail. The applicant must show that the debtor has funds but that they are not being paid through wilful disobedience. This is very often difficult to obtain.
  8. Garnishee order: A debt owed to the debtor by a third party may be garnished by the creditor (for example, a debtor’s salary).
  9. Receiver: Appointment of a receiver by order of the court (corporate only).
  10. Winding up of corporate debtor.
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