Accepting Rent from an Overholding Tenant

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dovest

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If a landlord issues a valid notice of termination to the tenant and subsequently the tenant refuses to vacate the property by the due date, I have heard that the landlord can no longer accept rent from the overholding tenant as by doing so, the landlord would render the termination process invalid. The landlord would, in effect, be creating a new tenancy.
Does anybody know if this is correct?
 
dovest said:
have heard that the landlord can no longer accept rent from the overholding tenant as by doing so,
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Do you mean something like:
  • July 31st: end of notice period, tenant required to vacate
  • 1 August: tenant still in property, pays rent to landlord
I don't know the legalities but in practical terms it's hard to stop someone paying money into your account.....
 
Accepting rent doesn't give tenant any more rights. They are still overholding. Start the process straight away.
 
DannyBoyD said:
Accepting rent
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I don't think it's even meaningful as a concept. A landlord doesn't "accept" or "reject" rent, they just receive it.

From my knowledge of the law the landlord can start the RTB process for overholding once the notice period has expired. The tenant is still obliged to pay rent but it's not relevant to the fact that they are overholding.
 
Interesting question and most likely to be a situation that will occur more frequently when tenants cannot find somewhere to move to before the end of the notice period.
Logic would say the payment of rent after notice period cannot start a new tenancy.
 
Seems to be a lot of overholding advice from many factions. TD's media NGO's to name a few.

As said interesting times ahead.
 
It is standard for determination orders issued by the RTB in overholding situations to include a phrase such as:

The Respondent Tenant shall also pay further rent from the date of the Tribunal / Adjudication hearing at the rate of xxxxx until the dwelling is vacated by the said tenant and any other person residing therein.

It is clear from this formulation that rent continues to accrue after the due date on the Notice of Termination, but this does not act to keep the tenancy alive.
 
The one time we had to evict a commercial tenant (ca. 2008) we were advised by the barrister not to accept any further payments of rent or a tenancy would be implied by the court. I don't remember the details but clearly remember returning the payments to the sender.
 
I asked may solicitor this question recently and he confirmed that accepting rent from a tenant after the notice of termination expires means the tenancy is implied. He told me to return all payments.
 
Legal advice should be sought from an experienced solicitor in such cases. Generally speaking, in a "overholding" scenario the tenant must continue to pay rent to the landlord. Receipt by the landlord of that rent does not imply recognition of an ongoing tenancy.

In commercial type cases, where VAT invoicing is required, we raise invoices worded as follows: "Mesne rates for March 2023" etc Mesne is a legal term which effectively means compensation for the use of the land from which the date of repossession has been demanded. Given that some court cases could take 2 or 3 years to reach a conclusion it is necessary to continue collecting the rent.

Jim Stafford
 
The Q&A article in p.3 of today's Irish Times appears to agree with Jim Stafford:

.......... "If tenants are overholding they must continue to pay rent, but acceptance of the rent does not imply that the landlord accepts that the tenancy has been given a new life............... according to the RTB."
 
Sullystreet said:
I asked may solicitor this question recently and he confirmed that accepting rent from a tenant after the notice of termination expires means the tenancy is implied. He told me to return all payments.
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Your solicitor's advice seems to disagree with that in the previous few posts.
 
Sullystreet said:
I asked may solicitor this question recently and he confirmed that accepting rent from a tenant after the notice of termination expires means the tenancy is implied
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This seems completely daft. The tenant is still consuming a service albeit one that the landlord no longer wishes to provide.

What is the landlord supposed to do? Return the rent and then seek an order for arrears when the RTB orders the tenant to vacate?
 
It seemed daft to us as well but that was the advice of the (well paid) barrister in our 2008 case. I do remember the term Mesne rates now that I think of it but he obviously advised against collection of them as the ultimate advice was to refuse any payment if we wanted to be sure the judge on the day wouldn't see an implied continuation of the tenancy. This advice must stem from somewhere or some judgement where this actually happened or the barrister was just making stuff up (and sadly I do not discount the possibility!)
 
murphaph1 said:
It seemed daft to us as well but that was the advice of the (well paid) barrister in our 2008 case.
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IANAL but the legal framework for commercial tenancies is different from residential where the RTA is very prescriptive about what landlord and tenant can and cannot do.

There is also big moral hazard if tenants know that they can overhold and as a result will have rental payments returned.
 
NoRegretsCoyote said:
IANAL but the legal framework for commercial tenancies is different from residential where the RTA is very prescriptive about what landlord and tenant can and cannot do.

There is also big moral hazard if tenants know that they can overhold and as a result will have rental payments returned.
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I would really like to believe that as I would certainly prefer to take payment from overholding residential tenants if it didn't legally disadvantage me! (to be honest I cannot really foresee me needing to terminate the tenancy of a tenant that wants to pay rent but who knows what my circumstances will be like in future).

If it said somewhere in the legislation in black and white that receiving rents (be they called rents, or Mesne rates or whatever) is allowed then I would buy it and be happy about it. Does it actually say something about this stuff in the RTA though? What the PRTB give as an opinion on their website is basically worthless IMO.
 
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