Dispute with RTB on overholding
- Thread starter Colin4444
- Start date
No I am not, but I don't think you are either.
I have had some experience of law, via legal cases that were taken in some of the places I worked. This is the way it works. The rules in the Acts here are very clear. The Court will have to apply them.
The Courts don't have the latitude to ignore clear legislation and clear statutory rules.
The slip rule was covered by other posters, it doesn't apply to a major error like this.
MortgageBroker
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Dispute with RTB on overholding
I opened dispute with RTB as tenants were supposed to move out 30th May.. My NoT was issued last October by a solicitor. Got an email from RTB and they have asked: "Can you confirm that you sent the RTB a copy of the Notice of Termination on the same day you sent it to the Tenant? You need to...
www.askaboutmoney.com
Not only is it a mess, but even if you win you lose. Had an award given to me from the courts after an RTB dispute (overholding/damage etc) and they said I was awarded €10,000. Never got a penny and was told that to chase it I'd have to fund the costs and it was a civil issue - so no compulsion for them to pay etc. This country has gotten major housing policy items wrong by erring on the side of the tenant at all times and making the system one where leaving it is more attractive than staying for all but the larger landlords.
@Greenbook
Maybe you should consider concluding your posts with the usual IANAL caveat when posting very definitive opinions about what the Courts will or will not decide.
Maybe you should consider concluding your posts with the usual IANAL caveat when posting very definitive opinions about what the Courts will or will not decide.
Courts don't blindly just apply the law. Where there's a lack of clarity they also interpret it.
Harsh..
I think Greenbook does have a point.... for one its all against the landlord, whether the courts will interpret anything and side with the landlord is open to question.. it could go either way...
Correct if Im wrong but their was already a recent enough thread on this site where this did come up and the courts ruled that it is when the NoT was received and not sent?
I hope for my sake it doesnt come to all of that, and as Bronte pointed out once I have the check (as the tenants want to buy) it will be champagne time (even tho I cant stand the stuff!!)
You are correct there, but the legislation here is very clear. There is no lack of clarity. There is no doubt about what it is saying.
S.62(1A) of the Consolidated Residential Tenancies Act says
(1A) Where a notice of termination is served by a landlord, the landlord shall serve a copy of the notice on the Board on the same day on which the notice is served on the tenant, and where the copy is not so served the notice shall be invalid.
S.25 of the Interpretation Act says
25.—Where an enactment authorises or requires a document to be served by post, by using the word “serve”, “give”, “deliver”, “send” or any other word or expression, the service of the document may be effected by properly addressing, prepaying (where required) and posting a letter containing the document, and in that case the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
It is was unclear or uncertain, then the High Court could interpret it in a way that makes sense.
Those two sections are crystal clear. The High Court would be changing the law if it decided that they said something different.
Also if you read the judgement in the case here paras. 7 to 9, the High Court is clear than any other reading of the law is a mistake and an error. The judge says
The first point to be made is that the Tenancy Tribunal erred in law in thinking that a document should be deemed to have been “served” on the day upon which it is posted. In truth, a document is to be treated as having been served either onthe date upon which it would be delivered in the “ordinary course of post”, or, alternatively on the date of actual receipt,
Of course nobody can predict what a court will do, but where the law is clear and it is here, the court must apply the law as it is written in the legislation. Otherwise, I believe the court is breaching something called the Separation of Powers and that is contrary to the Constitution which is serious.
IANAL
LarryScott
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The High Court ruling said that it wasn't critical, since there were other problems with the NoT in that particular case. I think that means the High Court opinion is only persuasive precedent. It isn't binding, but that just makes things even more unclear.
The judge essentially said it looks bad but doesn't matter for the case in question.
Your problem is that you have a potential technically invalid NoT.
Say that the RTB accepts your technically true assertion that you sent both notices on the same day, then you aren't out of the woods.
At the actual hearing, the tenant may point out that they were served the notice on a different day to the RTB. In that case, your NoT gets declared invalid but later than Today.
It could get worse. Assume the RTB (and then appeal tribunal) all agree with you and you get a determination order. You go to court to get it enforced, and then the court says that it was invalid.
The core issue here is that email is instant and registered post (nominally) takes 1 day. By using notification methods with different delays the solicitor ended up serving on different days. This was the advice from the RTB at the time, so it is hard to fault him.
So, if you sent 2 registered letters on the same day, they would be deemed to arrive/be served on the next business day (i.e. in the ordinary course of post). Even then, the tenant can claim otherwise. If they can show it was received faster or slower, then they may be able to get a different service date accepted, if he can prove it.
Email and register post don't have that equal delay property.
Ultimately, you have a choice to make. You can wait and hope for the best. This might work, if the tenants leave.
Alternatively, you restart the entire process now. That has a better worst case outcome, but means you are giving up on an earlier date.
If you are confident that they are actually planning to leave, then maybe that is the best plan. But, the longer you wait to reset, the worse it will be if you then need it.
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Yes, I agree, because if he'd contacted the RTB and told them otherwise they'd have told him to get lost.
What is now clear, thankfully, is that the RTB has deleted all the stuff about posting, instead stated don't post notices, and we also know to email the tenants and the RTB on the same day.
And that's all now clear thanks to the High Court. It's not as if the RTB has lawyers to advice them on any of this ... maybe the very same lawyers who in the High Court decided not to argue their own RTB Determination Order decision on what delivery of notices mean ................
I think what is also VERY clear, a notice not delivered on the same dates is INVALID. Automatically. As per the legislation.
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LarryScott
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I think their plan is to give advice consistent with the High Court going forward and ignore the problem.
In progress NoTs might, or might not, be affected. Who knows how the RTB will rule if the issue comes up. Maybe they will rule NoTs posted on the same day are valid. This could force an actual legal decision.
Eventually, all invalidly served NoTs will flush out of the system. Many in progress NoTs will have been correctly served since the postage delays will be the same, by luck alone.
In fairness to the RTB, now that the mistake has been made, they can't change already issued NoTs. Drawing more attention to it doesn't make the problem any better.
That sounds like their plan alright.
They make a blunder like this and they can just change what the website says and keep going even though this could have very serious implications for many NoTs, arrears disputes and currently rent setting.
However, if a landlord makes a mistake in a form, especially with the new Bill going through now, he ends up with a criminal record and a large fine.
John Cummins is introducing the latest Residential Tenancies Bill today.
Interesting development, more to get the RTB out of the mess they have made, rather than making procedures more sensible overall.
They will also include providing that landlords must serve a notice of rent review or notice of termination on the RTB within seven days of the date on which the notice is served on the tenant rather than on the same day on which the notice is served on the tenant. The purpose of this is to facilitate compliance as the postal service may not deliver such notices to both the RTB and the tenant on the same day.
No mention of the mess made by the RTB or the High Court decision. It is to facilitate compliance.
Still one the few pieces of good news out there for landlords and the rest of the Bill is more police powers for the RTB and procedural knots to tie us up. Here is an example:
They also include empowering the RTB to issue 28-day fixed payment notices for certain offences to provide the opportunity for an offender to avoid prosecution and speed up compliance with the RTA
An offender - no question but the landlord is guilty.
Interesting development, more to get the RTB out of the mess they have made, rather than making procedures more sensible overall.
They will also include providing that landlords must serve a notice of rent review or notice of termination on the RTB within seven days of the date on which the notice is served on the tenant rather than on the same day on which the notice is served on the tenant. The purpose of this is to facilitate compliance as the postal service may not deliver such notices to both the RTB and the tenant on the same day.
No mention of the mess made by the RTB or the High Court decision. It is to facilitate compliance.
Still one the few pieces of good news out there for landlords and the rest of the Bill is more police powers for the RTB and procedural knots to tie us up. Here is an example:
They also include empowering the RTB to issue 28-day fixed payment notices for certain offences to provide the opportunity for an offender to avoid prosecution and speed up compliance with the RTA
An offender - no question but the landlord is guilty.
Just a quick update here..
Agreed on mediation, and have had several emails from RTB, asking me to fill out forms with the same questions I already answered.. Suppose in the grand scheme of things this is not the worst.
Wasnt expecting, and dont need a fast turnaround
-> Tenants propose to buy and wont get mortgage approval until aug / Sept time.. At least we can agree if mortgage falls through a date for them to move out...
Agreed on mediation, and have had several emails from RTB, asking me to fill out forms with the same questions I already answered.. Suppose in the grand scheme of things this is not the worst.
Wasnt expecting, and dont need a fast turnaround
-> Tenants propose to buy and wont get mortgage approval until aug / Sept time.. At least we can agree if mortgage falls through a date for them to move out...Excuse my ignorance, but is this just a suggestion at this stage, or going to be the new rule? This will be good news if it does change to 7 days.
It just seems to be proposed and God only knows what it'll actually end up as or how the RTB will interpret it.
Always when they say they are making things a little bit easier for landlords, the opposite occurs.
Update: tenants have been approved the mortgage based on her completing probation period at work, which is on the 17th August, we are both at finding solicitors stage to start the sale process....
This is obviously all just word of mouth by tenant, I have no reason to think he is just leading me on, so hopefully all will go well and I will have the rental sold by October... Such a relief..
FYI despite all the emails from the RTP about the overholding dispute, I havent heard anything since mid June about the actual mediation meeting!!
This is obviously all just word of mouth by tenant, I have no reason to think he is just leading me on, so hopefully all will go well and I will have the rental sold by October...
Such a relief..FYI despite all the emails from the RTP about the overholding dispute, I havent heard anything since mid June about the actual mediation meeting!!
Hi Colin, good to hear your good news, fingers crossed. Could you outline a rough timeline please. Your RTB complaint was 30th May 2026, it's now 6th August, so you're at this over 2 months and have no date ....
Yeah pretty much, I opened the dispute start of June, had a few emails back and forth with RTB about how to proceed.. last one was 15 June where I specified mediation as the process.. Havent heard anything since..
TBH I didt want / or expected it to be fast, so this suits me.. hopefully sale will go through and I can stop looking at all the depressing threads on AAM about being a landlord
Or I can look at them with a smile on my face..