RTB told landlords posting date = service date. The High Court says it doesn't. Accommodation providers set up to fail?

Sarenco said:
A notice is deemed to have been served on the business day following its posting - that is not a misunderstanding of the law.
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Will the RTB and then the courts not conclude that an error, in the form of a landlord assuming he can rely on that and arranging for the RTB to be served the following business day after posting, is a misunderstanding of the law?

Then there's the question of whether any asynchronous serving to RTB and tenant adversely affects the tenant.

Just to clarify, you've been consistently dismissive of the idea any of this is a problem, do you still hold this view from before the RTBs alteration of its guidance?
Sarenco said:
I really think you are overthinking this - there is no contradiction between the RTB guidance and the legislation.
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Sarenco said:
I actually don’t see anything wrong with the RTB guidance.
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Folks

The NoTs have to be served on the tenant and the RTB on the same day. That’s the law.

I didn’t actually see anything wrong with the wording of the RTB’s original published guidance. However, the RTB seems to have thought that the date of posting is the date of service of an NoT and that’s simply wrong.

Therefore, their template notices (which haven’t been changed) are wrong IMO (at least when serving by post) where they require the insertion of the date of service.

However, I would be surprised if the RTB didn’t apply the slip rule if notices were served in accordance with their original guidance. You are obviously free to take a different view.

Again, this all becomes moot if the notices are served electronically to a pre-agreed address.
 
Sarenco said:
However, I would be surprised if the RTB didn’t apply the slip rule if notices were served in accordance with their original guidance. You are obviously free to take a different view.
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Thank you for the clarification.

I think most of us would be taking a different view, the slip rule doesn't cover something like this.

It would also mean that in an astonishing turnaround and completely against its DNA, the RTB is favouring and helping landlords. That won't happen!
 
Greenbook said:
Yes, but per the RTB website, it is the landlord's responsibility to choose a method or methods of delivery that ensure that both arrive on the same day.
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The legal opinion was that intentional acts including intentional acts due to a misunderstanding of the law doesn't count as a "slip". The error needs to be an unintentional mistake and not an intentional act based on a misunderstanding of the law.

If a landlord posted them them both on the same day on the assumption that they arrive on the same day, then the fact that they arrive on a different day is not an intentional act. He has no control of the postal system.

If the landlord says that he intended them to arrive on the same day, then it could reasonable be deemed an unintentional mistake.

He would also claim that he didn't misunderstand the law, he intended them to arrive on the same day, as required under the law. His (unintentional) mistake was that he couldn't properly account for variable postal delays.

It would require that the RTB want to use the slip rule in this case. That is debatable, but if they did, they could make the above argument.
 
LarryScott said:
It would require that the RTB want to use the slip rule in this case. That is debatable, but if they did, they could make the above argument.
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Threshold must know about this case, so when tenants start challenging NoTs and rent setting using this point, it will make for some very interesting arguments and decisions.
 
I think that if you assume both the RTB are going to apply the Slip Rule and the Courts will let them, you might be confusing what would be the sensible thing to do with what will happen.

While we wait for Threshold or a FF councilor, or whoever, to advise a tenant to dispute the validity of one of the roughly 7000 Notices of Termination served each quarter due to a tenant apparently not receiving the Notice on the same day as the RTB, and for the RTB to adjudicate on it as to whether it wants to, or even is allowed to, apply the Slip Rule, and then for a Court to then opine.....we can ask ChatGPT for a potentially flawed answer:

Lets's try to force it to answer that the Slip rule can be applied.

But surely it is "otherwise compliant with this Act". The only error is the serving date - had that been the day the landlord assumed it was then the Notice would be compliant with the act?​
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The short answer is no, because "otherwise compliant" means the notice must meet every single rule of the Act at the exact moment the RTB reviews it.​
Your logic frames it as: "If you remove the single bad ingredient (the late service date), the rest of the recipe is perfect." However, under Irish law, a late or mismatched service date is not a minor blemish on an otherwise good document—it is a fatal structural collapse of the notice itself.​
The RTB cannot use the slip rule to bridge the gap between a landlord’s assumption and the physical reality for two absolute statutory reasons:​
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1. Compliance is Judged on Facts, Not "What Ifs"​
Section 64A states that the slip rule can only apply if the notice is "otherwise fully compliant with this Act."​
This is a high legal threshold. It means that when the RTB adjudicator looks at the notice, it must be legally flaw-less in every way except for the minor typo being corrected.​
  • The landlord's assumption: "I assumed it would arrive on Monday."
  • The statutory reality: Because the post office delayed it, the tenant was served on Tuesday, and the RTB was served on Monday.
  • The legal consequence: The moment those calendar dates separate, Section 62(1) explicitly dictates that "the notice shall be invalid."
Because Section 62 explicitly strips the notice of its validity when same-day service is missed, the notice is non-compliant at the time of the hearing. You cannot use Section 64A to save a notice that is already defined by the Act as fundamentally invalid.​
 
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Gerard0 said:
What ever you do, do it on the same day. Do not leave room for ambiguity
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There just seems to be so many loopholes for tenants to challenge NoTs now.

Even though the new RTB recommendation of emailing tenant on same day as submitting on RTB seems ideal, what if a long term tenant hasn’t given official written permission to receive correspondence by email and then uses this to challenge the validity of the NoT?
 
Wavelly said:
Even though the new RTB recommendation of emailing tenant on same day as submitting on RTB seems ideal, what if a long term tenant hasn’t given official written permission to receive correspondence by email and then uses this to challenge the validity of the NoT?
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Then you just serve it in person, and on that day send it to the RTB online. It’s clear as day now for all us landlords we do correspondance* via email in the first instance or serve personally and we avoid posting anything.

* Nof T and rent increases
 
The rent setting documents must be served on the exact day the lease commences.

I would have put a commencement date in my leases. The tenant says I'll be moving in on 1 June, so I'd use that as the commencement date. Often the tenant would come back to me a couple of days before the commencement date and ask to move in then or move some stuff in. Is that now the commencement date?

What if the tenant doesn't actually move in on the date he says and leaves it a few days later?

These documents are complex, you may not have them ready on the new commencement date or it may not be convenient if you have to travel to serve them.

Telling the tenant he can't move in a little early or that he can't start dropping off his stuff is a bad start to the relationship.

This is another avenue for a tenant. Both the tenant and the RTB were served on the same day, but it wasn't the day the lease commenced.
 
Greenbook said:
This is another avenue for a tenant. Both the tenant and the RTB were served on the same day, but it wasn't the day the lease commenced.
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Exactly - and as I was trying to flag earlier, the RTB's slip rule power (s64A) extends to notices of termination only. It can't be applied to a rent setting or rent review notice at all. The RTB simply has no power to do so for those.

Add the commencement date requirement on top and serving a rent setting notice properly becomes extraordinarily bureaucratic, with no obvious justification. It looks like a trap set by design.
What's stranger still is that posting it in is even permitted. The notice has to carry the commencement date (which the form refers to as Tenancy start date), yet that's near-impossible to fix in advance, because you can't know when the posted copy will reach the RTB. And good luck explaining to a tenant that the tenancy can't commence until a letter lands on a desk in Killorglin. What a mess.
 
stormy said:
Add the commencement date requirement on top and serving a rent setting notice properly becomes extraordinarily bureaucratic, with no obvious justification. It looks like a trap set by design.
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That is what it exactly what it is. There is no other justification other than trapping and making things as difficult as possible for landlords.

And extraordinarily, they still pretend they are trying to keep small landlords in the market.
 
You just have to come to terms with the reality that you will now never be able to get a tenant to leave who doesnt want to leave, no matter who you are. They will get you on something or other. Even if its a number days in a leap year that has you out by one day over a few years. You cant possibly get all the rules right in the right order at the right time. Your right to evict is effectively gone.
 
Greenbook said:
The rent setting documents must be served on the exact day the lease commences.
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Do you know if that is in the legislation?

Section 22 is for "new rents". It requires 90 days notice of a change and also same day service for the RTB/tenant.

The RTB have a Rent Setting Form.

It does have the tenancy start date, so as you say that is locked in.

It also has a "date this notice is signed and served". There is only one date, so presumably you must sign and serve on the same day? That would prevent postal service. That could be a legacy of the RTB's previous position that serving was when you posted it.

It does mean that you need to predict the service date in advance.

This estate agent say that they "advise this is done on receipt of the deposit from the tenant, which is often prior to the commencement date". If they are right (and they may well not be), there is no strict date the notice has to be sent. The only strict rule is that it has to be on the same day.
 
stormy said:
furnish the tenant and the Board, in writing, with the following information at the commencement of the relevant tenancy, ...."
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"Furnish" is doing a lot of work in that sentence!

Unlike the Notice of Termination, the Notice of Rent Setting doesn't have to be "served", the information just has to be furnished to the tenant and the RTB at the commencement of the tenancy which isn't too prescriptive as to timing.

Don't confuse the rules with Rent Setting with the rules for Notice of Termination. It's not complicated lol
 
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