If it was simple then there's be less work for lawyers.
Dispute with RTB on overholding
- Thread starter Colin4444
- Start date
In fairness, there should be absolutely no need to involve a solicitor. The kafkaesque byzantine mess is purely down to sheer incompetence mixed with low deliberate devious, cunning designed to trip the unfortunate Landlord.
Ok, thanks.
So, as far as you know there is no error on the face of the NoT and it was issued on your behalf in accordance with the RTB guidance at that time. Right?
Your concern is that your tenant will argue that while the NoT was issued to the tenant and RTB on the same day, the NoTs were not served on both parties on the same day in strict accordance with the legislation.
I’m not aware of any tenant having successfully made this argument to invalidate an NoT and I would be very surprised if it was upheld by the RTB (and positively stunned if it was upheld by a Court).
But you should cross that bridge if and when you come to it.
For present purposes, just answer the exact questions posed by the RTB.
Either way, I can’t see any basis for seeking the return of the fee paid to your solicitor.
Put simply, I can’t see that he did not act in accordance with your instructions or otherwise did anything “wrong”, given the RTB guidance at that time.
So, as far as you know there is no error on the face of the NoT and it was issued on your behalf in accordance with the RTB guidance at that time. Right?
Your concern is that your tenant will argue that while the NoT was issued to the tenant and RTB on the same day, the NoTs were not served on both parties on the same day in strict accordance with the legislation.
I’m not aware of any tenant having successfully made this argument to invalidate an NoT and I would be very surprised if it was upheld by the RTB (and positively stunned if it was upheld by a Court).
But you should cross that bridge if and when you come to it.
For present purposes, just answer the exact questions posed by the RTB.
Either way, I can’t see any basis for seeking the return of the fee paid to your solicitor.
Put simply, I can’t see that he did not act in accordance with your instructions or otherwise did anything “wrong”, given the RTB guidance at that time.
But landlords can't control the mechanics of An Post delivery. Once it's sent on the same day, that's surely all he can do.
I agree. The guidance from the RTB until very recently was that it must be sent on the same day.
See below screenshot posted by Stormy on 26th April. I don’t see how the RTB could say that a NoT from 6 months ago is invalid given this was their guidance until a month ago.
The RTB must accept NoTs sent in accordance with their own guidance. But I'm not sure how far that takes us.
The guidance was clearly wrong as it is the opposite to what the legislation (Interpretation Act 2005) says, so I could see NoTs being challenged by tenants successfully with Threshold's help. The date of sending was never the test. The date of receipt is and always was the crucial date.
The RTB doesn't make the law, it applies it and its application was always wrong.
That said as the OP was asked for proof that the NoT was sent to the tenant and the RTB on the same date, I would just send the RTB that. This is another morass, no point getting involved in it unless you are forced.
Exactly.
The RTB needs a copy of the NoT for statistical purposes so the government will have an idea of the overall level of evictions. It does not need to receive the NoT on the same day. That rule is there to trip up the landlord and for no other reason. The fact that the RTB asks for proof of same day services shows that.
You do realise the RTB/Law was in order to take it out of courts. In the past we had to go to court to settle disputes. Now we have to go to the RTB first. And when we win in the RTB we still have to go to court if we have to enforce the "Orders's" the RTB have determined. And in the case of Colin, we know since the High Court case that Service (receipt) is what's important and not date sent because for years the RTB did not know this.......
The RTB specifically state somewhere on their website that their guidance is no substitute for legal advice.
I've it in writing from them that
"the RTB provides general information only, we cannot comment on individual cases nor can we advise on how legislation applies to your circumstances, the information we provide is for guidance purposes only and should not be take as legal advice ."
And of course part of the RTB's purpose is to actually guide landlords (and tenants) .....
Hopefully it wont come to this, I doubt the tenant would dispute the NoT, they intend to buy so hopefully that all goes through nicely..
TBH if it all goes pear shaped I wont be blaming the tenants, they would have no where else to go with 2 kids so cant really blame them for overholding.. Its the government that has failed us...
TBH if it all goes pear shaped I wont be blaming the tenants, they would have no where else to go with 2 kids so cant really blame them for overholding.. Its the government that has failed us...
This is no good to Colin. As far as I'm concerned his notice is invalid. Because it wasn't sent to the RTB on the same date the tenant received it. And it's VERY concerning the RTB is asking Colin the wrong questions about the Notice being served.
You should avoid the post. Instead send it to the tenant by email or hand deliver it.
Yes, but if the law is complicated enough it still end up in court and without enforcement powers;
And if a solicitor had challenged them on the day of sending interpretation they had, he would have been told to get lost by them.
The rule in the Interpretation Act is as far as I am told very basic and well known, so some legal professionals must have questioned the RTB about it to cover themselves. The fact that it was unchanged until the High Court case shows the notice the RTB took.
Folks
The recent judicial comment didn’t change anything.
Every solicitor knows the difference between posting and service.
But the RTB conflated the two concepts when they established their systems for receiving copy NoTs.
Which is why I think it is unlikely that the RTB would invalidate a NoT on this basis.
The problem is largely moot going forward because NoTs can now be served by electronic means.
But that wasn’t the case last October.
Ranting about the Government really doesn’t help the OP.
The recent judicial comment didn’t change anything.
Every solicitor knows the difference between posting and service.
But the RTB conflated the two concepts when they established their systems for receiving copy NoTs.
Which is why I think it is unlikely that the RTB would invalidate a NoT on this basis.
The problem is largely moot going forward because NoTs can now be served by electronic means.
But that wasn’t the case last October.
Ranting about the Government really doesn’t help the OP.
We are trying to help the OP. The general advice is to send proof of sending on the same date which is what the RTB asked for and leave it at that.
The point is there could be trouble about this down the line.
The RTB is unlikely to invalidate an NoT issued under its own guidance, but the High Court would certainly do so and the tenant is entitled to appeal there on the basis of a mistake in law.
The RTBs guidance was never right, either before or after the High Court case so all NoTs that were sent on the same day but didn't arrive on the same day are invalid.
The High Court will uphold that rule. It must. It is the law in the Interpretation Act. RTB guidance doesn't and can't change the law.
The point is there could be trouble about this down the line.
The RTB is unlikely to invalidate an NoT issued under its own guidance, but the High Court would certainly do so and the tenant is entitled to appeal there on the basis of a mistake in law.
The RTBs guidance was never right, either before or after the High Court case so all NoTs that were sent on the same day but didn't arrive on the same day are invalid.
The High Court will uphold that rule. It must. It is the law in the Interpretation Act. RTB guidance doesn't and can't change the law.
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They have no choice in the matter.
I don’t agree that the High Court would “certainly” invalidate an NoT in these circumstances.
In fact, I think it is highly unlikely that the High Court would invalidate a NoT on the basis of such a technicality, particularly where the RTB guidance had been followed, and would apply the slip rule, where necessary, in such circumstances.
In fact, I think it is highly unlikely that the High Court would invalidate a NoT on the basis of such a technicality, particularly where the RTB guidance had been followed, and would apply the slip rule, where necessary, in such circumstances.
The High Court must follow the legislation.
The Residential Tenancies Act says that the NoT must be served on both the tenant and the RTB on the same day.
The Interpretation Act says that date of service is the date the document arrives in the post.
Put both of those together and the law clearly is that both the tenant and the RTB must receive the NoT on the same day.
The High Court can't escape that. It must apply the law. It would be making a new law entirely if it said that the NoT is fine because the RTB guidance specified posting on the same day. That is not what the law ie. the two Acts mandate. Courts must apply the law as stated in the Acts.
If somebody challenges an NoT on this basis, while the RTB Tribunal might try to brush it under the carpet, once they get to the High Court they will win. The law is clear and the High Court must abide by it.