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

[Sarenco]

Actually, I think it’s interesting that the Court noted that the NoT itself misstates the date of service (I missed that detail).

Well, IMO a NoT should never state the date of service in the first place - the NoT should be dated as of whatever date it is transmitted to the tenant/RTB and note the means of transmission (eg “Sent by certified post”, etc).

Very difficult for a tenant to argue that the notice was not served on the RTB on same day as it was served on the him if he doesn’t know what date it was served on the RTB.

 

[Bronte]

Actually, I think it’s interesting that the Court noted that the NoT itself misstates the date of service (I missed that detail).

Well, IMO a NoT should never state the date of service in the first place - the NoT should be dated as of whatever date it is transmitted to the tenant/RTB and note the means of transmission (eg “Sent by certified post”, etc).

Very difficult for a tenant to argue that the notice was not served on the RTB on same day as it was served on the him if he doesn’t know what date it was served on the RTB.

Here's one of the multiple samples of Notices of Termination from the RTB (this one is for notice due to rent arrears)

From this link: https://rtb.ie/resources/category/ending-a-tenancy/

 

[Sarenco]

Yeah, I know.

The RTB seem to think the date of transmission and the date of service are one and the same thing.

But they’re clearly wrong on that point which is why, IMO, a NoT should never refer to the date of service.

 

[Dermot]

Very difficult for a tenant to argue that the notice was not served on the RTB on same day as it was served on the him if he doesn’t know what date it was served on the RTB.

Just looking at a Notice of Termination served on a Tenant friend of mine where the RTB posted a letter to him stating that they had received a Notice of Termination with the date that they received it referring to him 2 weeks after RTB receiving it.

 

[Sarenco]

Sorry, I don’t follow.

Are you saying the RTB received the notice two weeks before the tenant or the other way around?

 

[Greenbook]

The IPOA needs to contact the RTB to get clarification of what the rules are now after this High Court case.

Most landlords will be completely unaware of this and will think that by following the RTB templates to the letter they will be fine.

Well done to the OP for picking up this case - no one else has spotted it.

 

[Dermot]

The RTB just confirmed automatically in writing the date that they received the Notice from the Landlord.
Was just confirming that Tenants are made aware of when the RTB receive an NoT.
That letter from RTB was received 2 weeks after it as served on the RTB.
There are other issues but just pointing that the Tenants were made aware of the date that it as served on the RTB

 

[polecon]

Let me check - do I have this correct?

1. The RTB's determination was found by the court to be wrong.

2. The RTB is confused about there being a difference between serving and sending, as a result

3. The RTB's sample Notices of Termination are wrong, and

4. The RTB's guidance on its website is wrong.

 

[Greenbook]

Let me check - do I have this correct?

You have it correct as far as I can see.

Complete silence from the RTB on all this. Its wrong templates are still in place.

The IPOA needs to get clarification from the IPOA as soon as possible.

The RTB needs to clarify the position on NoTs current in the system. Landlords followed its templates in good faith.

 

[Bronte]

The IPOA needs to contact the RTB to get clarification of what the rules are now after this High Court case.

The IPOA have sent an email to landlords on the new legislation. It was thanks to their help and guidance a few years ago that we managed to serve notices, take RTB cases etc. They told me what to do and I did it.

The RTB can not be relied upon for matters of law. This High Court judgment gives some clarity on “serving” and on “who” has to sign notices.

Nobody knows how the new legislation fits in.

The RTB made serious errors, again, in their determination order. Their own lawyers refused to even argue their own legal ruling in the determination order.

The IPOA cannot get clarity from the RTB on everything as the RTB refuse to give legal advice. There are now about 40 templates for Nof T on their website. It’s a study in how to confuse the unwary landlord, with land mines everywhere. You could not dream up a more complicated system if you tried.

 

[Greenbook]

The IPOA cannot get clarity from the RTB on everything as the RTB refuse to give legal advice. There are now about 40 templates for Nof T on their website. It’s a study in how to confuse the unwary landlord, with land mines everywhere. You could not dream up a more complicated system if you tried.

Agree entirely. I think that is the RTB's primary consideration, confuse landlords so we get things wrong. No need at all for 40 templates.

The IPOA needs to contact the Minister if the RTB either can't or won't do anything.

The legislation may need to be changed (yet again) to give clarity on this point. Otherwise a landlord ends up in a situation where the rent can't be collected at all because he emailed the tenant and the RTB on 2 June, but the tenants says, oh I didn't open the email under 4 June. If this is a first setting of rent, it is invalid and it may not be possible to collect the rent at all.

 

[Greenbook]

This is a quote from the case. It now seems that the RTB were completely wrong all along. The date of posting is not the date of service. Reading the judgment and about what the Interpretation Act says, it seems 100% clear that the date of postage is not relevant. The RTB which must have legal advisors should have known that. But as we have seen on other issues, the RTB just makes up things to suit themselves.

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 on the date upon which it would be delivered in the “ordinary course of post”, or, alternatively on the date of actual receipt, if the evidence establishes that this is a different date than the deemed date.

I get the impression that the judge thinks that this is a very basic legal point.

 

[Greenbook]

Interesting as well, the tenant argued the case himself (impressive) but the RTB using our fees and taxes hired a Senior Counsel and a major firm of solicitors and still lost hands down.

Also the judgement was given by the judge on 12 March, but the RTB never told anyone about it and left landlords continue to issue NoTs based on their incorrect templates.

 

[bipped]

Also the judgement was given by the judge on 12 March, but the RTB never told anyone about it and left landlords continue to issue NoTs based on their incorrect templates.

That is a scandal really. Wonder if Minister Browne is aware of it as he seems to think that landlords can get help and advice from the RTB. Not very useful though if the guidance they give is wrong.

 

[Greenbook]

The IPOA cannot get clarity from the RTB on everything as the RTB refuse to give legal advice. There are now about 40 templates for Nof T on their website. It’s a study in how to confuse the unwary landlord, with land mines everywhere. You could not dream up a more complicated system if you tried.

The RTB instructed us to use these templates and told us that date of service was the date of postage. They were wrong. They need issue advice as to what landlords should do now. Their templates are unusable.

This is an extremely important issue:

1. Practically all NoTs are invalid.
2. A tenant who moved out can now sue the landlord for compensation for an illegal eviction.
3. Arrears notices are invalid as well I'd imagine.
4. Anyone who re-set the rent under the new rules now has an invalid rent setting notice which the tenant can challenge.

The IPOA needs to get on to them and ask them what they are going to do about this. This is their mess, they need to sort it out.

If it was a tenant problem, they'd be all over it already.

 

[LarryScott]

1. Practically all NoTs are invalid.

Landlords who hand delivered the notices, or used email, might be ok. Though even with a hand delivery to the tenant, they are not likely to have hand delivered the copy to the RTB.

If multiple notices are sent, I wonder how that would work out. If the RTB gets one on Monday/Tuesday/Wednesday and the tenant receives one on Wednesday/Thursday, can the landlord say the ones received on Wednesday are valid since they were received together and the others were invalid and should be ignored.

 

[Greenbook]

If multiple notices are sent, I wonder how that would work out. If the RTB gets one on Monday/Tuesday/Wednesday and the tenant receives one on Wednesday/Thursday, can the landlord say the ones received on Wednesday are valid since they were received together and the others were invalid and should be ignored.

It just shows how stupid this is getting if this is what you have to do to serve a valid NoT or notice of rent arrears.

 

[LarryScott]

It just shows how stupid this is getting if this is what you have to do to serve a valid NoT or notice of rent arrears.

I think a reasonable method would be

Registered post to the tenant
Registered post to the RTB

Watch tracking for both delivery notices.

If both delivery notices are for the same day, great.

Otherwise, start again (don't forget to adjust the dates). You might want to adjust the postage dates if one delivery takes longer. Maybe post them both from a different country to try to keep the delay the same.

Ideally, you want the postage dates the same AND the date of receipt the same. That way it is valid under both rules.

On the day the delivery notice appears

• Email the RTB with the notice
• Hand deliver the notice to the tenant
• Email the tenant with the notice

Honestly, it might be worth just hand delivering to the RTB and tenant on the same day. They are in Kerry, so that might be viable for landlords in Munster.

Registered post has the advantage that you have a record of when it was delivered and is harder to refuse delivery.

I don't think you should say the service date on your notice, since there is no way to tell what day that will be. Maybe just put postage date and that you intend to send both by registered post.

Frankly, it's not clear if you should put any non-required info on the notice. The advantage of putting the postage date on the notice, is that it will allow you to match the notice to the postal tracking. Though maybe waiting a few days before your 2nd attempt might be worth it.

It occurs to me that this plays havoc with evictions before six months have passed. The move-out date has to be exactly 90 days from the date it is served. It may take multiple attempts to get the notice service date to be exactly 90 days before the date on the notice.

 

[polecon]

Otherwise, start again (don't forget to adjust the dates). You might want to adjust the postage dates if one delivery takes longer. Maybe post them both from a different country to try to keep the delay the same.

They've made such a mess of it that might not actually be a typo.

 

[Greenbook]

Thanks @LarryScott but that you have to go to all these contortions is crazy stuff, and you still might not get it right.

Does any other business have a system like this for serving notices. I doubt it very much.

No reason these notices couldn't be served on the RTB within 7 days or 14 days of the tenant getting the notice. There is no reason, aside from deliberately creating traps for landlords, why the notice must arrive on the same day.

I believe that with rent arrears a series of notices must be served all within tight time frames and again same day service. Probably impossible now not to get one wrong and have to restart the whole process (only to get one wrong again). Tenants now have carte blanche to remain in a property without paying rent.