Do we have to sign a fixed term contract?

This is my first post here & I'm hoping someone can clarify part 4 tenancy & how it may apply to us. Our first 12month fixed term lease ends on 30th June. On the 28th May we called the letting agency saying that we wished to remain in the property but we did not wish to sign another 12month fixed term (we are building a house & uncertain of the completion date). The letting agency were adamant that we sign another lease for 12 months but as the conversation went on they settled on 10months but this would need to be given the go ahead from the landlord. We emailed two days later regarding what had been discussed & asked for an update. In our naivety we should have done our homework & read up on our rights as tenants. The situation now is two and a half weeks later the letting agency has come back saying that the landlord has agreed to shorter fixed term lease (10months) & should we wish to remain in the property we need to sign the new lease.
Please correct me if I'm wrong but by telling /emailing the estate agent that our intention was to stay on (one month prior to end of current fixed term lease) are we covered under part 4 tenancy & not obliged to sign another lease & remain on a rolling month basis?

>> In our naivety we should have done our homework & read up on our rights as tenants.

Yes, but fortunately it is not too late because you have not given notice to quit. Even if you had signed a new lease you would still be OK.

>> Please correct me if I'm wrong but by telling /emailing the estate agent that our intention was to stay on (one month prior to end of current fixed term lease) are we covered under part 4 tenancy & not obliged to sign another lease & remain on a rolling month basis?

As I understand it, yes.

You gave no notice to terminate. Even though your original lease was for 12 months, it is your landlord's responsibility to know the law and to understand that a Part 4 tenancy had come into being. Your landlord should not have assumed that you will be leaving June 30. You gave clear notice that you did not want to.

This seems pretty clear.

Your options are:
(i) stay on and sign no lease; be legally 'in the right' but possibly annoy the landlord
(ii) sign a lease for whatever period he wants, even twelve months if he wants. You are already in a Part 4 tenancy and can leave with one months notice if you want. THIS IS PROBABLY WRONG SEE BELOW

I think option (ii) is your best option. Why annoy your landlord until you need to?

You may be under the impression that the 'tenancy' begins afresh if you sign a new lease. My understanding is that that is not the case; as the law is written, it is the *occupancy* that must be continuous, not a specific lease.

So even if you sign a new lease you're still in the Part 4 tenancy that began a few months ago, and you can leave with six weeks notice at any time during the second year. THIS IS PROBABLY WRONG SEE BELOW

Amendment: the notice required depends on how long the occupancy has been and it is six weeks in the second year of occupancy, not one month as I originally said.

I disagree. Once 12 months in, go on a rolling month basis, sign no new lease. Why tie yourself in in any way, even technically. Don't sign a new lease, IMO it's not a good idea....what do you get from signing a lease? Not "annoying" a landlord?! There is no benefit to you......

Frustratingly, my detailed response and that, and that of other users has been lost to this question. However, I will write a condensed response.

>> Not "annoying" a landlord?! There is no benefit to you......

There is a benefit to him/her, apart from not annoying the landlord which is a real benefit too. He gets additional security of tenure -- the landlord cannot move him out because he wants to renovate, or because he wants to move a family member in. He can move the tenant out on these grounds if he has only a Part 4 Tenancy and no fixed-term lease in addition.

Part 4 tenancies and 'fixed term leases' are not mutually exclusive as many seem to think.

Very few people know the law. The PRTB doesn't seem to quite know the law either.

When he has been occupying under a tenancy for six months, he gains a Part 4 tenancy, and he gets to keep this status for 4 years provided he does not vacate.

During these 4 years, it does not matter if he signs a lease binding him to stay for a thousand, or a million years at this point. The law effectively amends the lease and he gains the right to vacate with the required notice period which depends on how long the occupancy has been, which is 6 weeks for a 2-year occupancy, according to a table available in citizens information. Doing that is his RIGHT and the landlord cannot keep the security deposit as a punishment. THIS IS PROBABLY WRONG SEE BELOW

I originally had links to the act and the relevant section of the act, but it was lost in the glitch at the site here and I'm not in the mood to do all that work again.

Thanks for all your advice. We have made contact with the landlord but have yet to hear back so we'll see how things progress once he makes contact

amethyst said:

During these 4 years, it does not matter if he signs a lease binding him to stay for a thousand, or a million years at this point. The law effectively amends the lease and he gains the right to vacate with the required notice period which depends on how long the occupancy has been, which is 6 weeks for a 2-year occupancy, according to a table available in citizens information. Doing that is his RIGHT and the landlord cannot keep the security deposit as a punishment.

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I'm fairly sure this is wrong - a lease can add to the rights of tenant or landlord. The act does, however, give the tenant the right to reassign the lease and only if the landlord refuses to accept the reassignment then he can terminate.

Mrs Vimes said: I'm fairly sure this is wrong

You are sure, you say. Is this true? May I ask your source of your information and certitude? Have you read the Act? Or gotten your information by other reliable means? Or just winging it and claiming that you are sure?

From Citizens Info:
http://www.citizensinformation.ie/en/housing/renting_a_home/types_of_tenancy.html

If tenants have a fixed-term agreement or a lease, they are also subject to the terms of this agreement. This means they may lose their deposit if they leave before the term stated in the lease, even if they give the correct amount of notice.

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From the PRTB:
[broken link removed]

A tenant can terminate a Part 4 tenancy at any time and without reason, provided he or she gives the requisite notice

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a tenant can only terminate a fixed term tenancy where there the landlord has been in breach of his or her obligations

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Agreeing a fixed term increases a tenant's security of tenure, therefore it takes precedence over the part 4 rights. The tenant still has the option to assign the lease if they need to leave early.

Yes, the PRTB does not know the law. I go by the Act. I'll quote the relevant sections of the Act shortly.

amethyst said:

Very few people know the law. The PRTB doesn't seem to quite know the law either.

.

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What basis do you have for stating the PRTB don't know the rules? Have you an example or experience of this?

amethyst said:

Mrs Vimes said: I'm fairly sure this is wrong

You are sure, you say. Is this true? May I ask your source of your information and certitude? Have you read the Act? Or gotten your information by other reliable means? Or just winging it and claiming that you are sure?

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I would have thought the use of the term "fairly sure" indicated clearly my lack of "certitude". I did not claim to be sure. The only one claiming to be sure here is you.

Please read my post, even just the bit you quoted, before attacking me and accusing me of "winging it and claiming to be sure".

I suspect that the courts will never be asked to adjudicate on whether signing a further fixed term contract binds the tenant or just the landlord as the amount of money involved in any case would be dwarfed by the legal costs faced even by the winning side.

We'll probably never be sure. Try to live with that .

I didn't attack you Mrs. Vimes. You are taking my challenges rather personally. Perhaps I was too provocative. If so, I apologize.

The Act can be found here.

And it contains the following:

36.—(1) A tenant may terminate a Part 4 tenancy by serving on
the landlord in respect of the tenancy a notice of termination giving
the required period of notice.

Notice it does not say 'subject to a lease agreement'. It lays it out in black-and-white. If it meant 'subject to a lease agreement', why does it not say it? It is possible that it is an error in drafting. But that is what the Act says.

However, I will concede that with the PRTB thinking as it does, it would be risky to assume that what I said is effectively the law.

And if we keep reading, we get to this section, which does deal with leases

Section 60:
provides that where a greater notice period than that
specified in this Part is required by any lease or tenancy agreement
that greater notice period shall apply

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amethyst said:

I didn't attack you Mrs. Vimes. You are taking my challenges rather personally. Perhaps I was too provocative. If so, I apologize.

The Act can be found here.

And it contains the following:

36.—(1) A tenant may terminate a Part 4 tenancy by serving on
the landlord in respect of the tenancy a notice of termination giving
the required period of notice.

Notice it does not say 'subject to a lease agreement'. It lays it out in black-and-white. If it meant 'subject to a lease agreement', why does it not say it? It is possible that it is an error in drafting. But that is what the Act says.

However, I will concede that with the PRTB thinking as it does, it would be risky to assume that what I said is effectively the law.

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A lease agreement may be verbal or written. Usually the first agreement is a written fixed term contract (though some landlords don't believe in the quality of a written agreements as tenants seem to be able to break them when they wish) during which time (at the six month mark) the tenant automatically acquires Part 4 rights.

Therefore, on the expiry of the fixed term contract a tenant still has a tenancy (and contract) under Part 4 and there is no need to have a written Part 4 agreement though they are available is basic form, which is just a reiteration of the RTA 2004 tenants obligations. It is recognised that any special conditions that were in the fixed term lease continue into the Part 4 tenancy, such as no pets, no smoking etc.

OK, I was probably wrong about this. If there is a lease and it has a notice period, that notice period is NOT superseded by the act.

amethyst said:

OK, I was probably wrong about this. If there is a lease and it has a notice period, that notice period is NOT superseded by the act.

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If there is a clause in a lease stating that, for example, a tenant may vacate by giving 28 days notice, then in all likelyhood, that clause would be deemed invalid (except if the tenant vacated within the first 6 months of the tenancy.

The Act states the notice periods required by both landlord and tenant. Nothing in a lease can change those notice periods. However, a landlord and tenant may, at the time of the Notice of termination, immediately prior to or at a later date, mutually agree to a shorter or longer notice period than those periods in the Act. Such shorter (or longer) period cannot be written into a lease contract.

That was more or less what I thought too, facetious. But look at section 60 of the act, quoted by berni above. Doesn't that contradict that position?

amethyst said:

That was more or less what I thought too, facetious. But look at section 60 of the act, quoted by berni above. Doesn't that contradict that position?

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On re-reading the relevant sections of the ACT (I don't know why so many people like to quote from the Citizens Information website), you are correct in that a lease may quote a longer notice period than that given in the Notice Period Table. My mistake - thanks for the correction.

However, if a landlord doesn't know how long the tenants will stay, how can he write a clause into a lease requiring such a period, unless he takes the longest period and adds a further time of between days and weeks. I doubt if any tenant would want to commit to a notice period of more than 8 weeks - most want out in less time, usually a maximum of one month!

It is a shorter notice period than that stated in the Act that would be invalid.

What if the lease is fixed-term but does not specify notice periods at all.

Do you agree with my earlier assertion that in such a case the tenant can leave with the notice period specified in the Act?

Or does a fixed-term lease with no notice period specified become more like a lease with a notice-period which is essentially as long as the rest of the tenancy, so the tenants have to stay to full term? This seems to be consistent with the interpretation of the PRTB itself, as expressed on their website.

amethyst said:

What if the lease is fixed-term but does not specify notice periods at all.

Do you agree with my earlier assertion that in such a case the tenant can leave with the notice period specified in the Act?

Or does a fixed-term lease with no notice period specified become more like a lease with a notice-period which is essentially as long as the rest of the tenancy, so the tenants have to stay to full term? This seems to be consistent with the interpretation of the PRTB itself, as expressed on their website.

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In all likelihood, a fixed term lease would not specify a notice period - because a fixed term is just that, the lease continues until its expiry date and cannot be broken (except for breaches of the lease conditions).

However, a tenant has an automatic exit clause (which a landlord does not have) by assigning the remainder of the lease to a replacement tenant. In this case, no notice period is required as the vacating tenant is liable for the rent etc until the new tenant takes over.

A fixed term lease may have a break clause. This clause may include a reference to a time-frame such as: either party may invoke the break clause subject to 28 days notice. The 28 days notice is fine for breaking a lease that is less than 6 months old. However, the notice period would be invalid if the lease had already continued past the first six months, as a tenant vacating between 6 months and 1 year is required to be given 35 days notice.
Thus, we come to an example where a second consecutive fixed term lease is signed. Many landlords may just copy the first lease. However, any break clause period must be adjusted accordingly. Some landlords using a break clause will have a notice period of 2 months which covers the maximum notice period required by a tenant.