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

Sarenco said:
There’s no ambiguity about it.
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I don't want to start an argument about this because I am no legal expert.

But this is a properly served NoT even if the email bounces back to you so it is obvious that the tenant has no idea at all they are being evicted?
 
Sarenco said:
There’s no ambiguity about it.
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I think a court could reasonably conclude that it hasn't been served. It is definitely questionable.

If a landlord risks it, they could end up in court a year or two down the line with their determination order in hand, and then the original notice is deemed invalid. They would have to completely start again.

Alternatively, the landlord could just re-send via registered post (or hand deliver) and then they would only be delayed a few extra days. In that case, it would probably be worth saying that the previous notice is cancelled and this is the new valid one.
 
Best to send another email asking the tenant if he received the notice I suppose !

This is all way too complicated, would be better if the rules didn't say the landlords had to serve the RTB on the same day. This is what is causing the problem. Ironically the RTB has no time limits on itself as to when it sends the letter to the tenant informing them that the landlord has sent the RTB a N of T.
 
@LarryScott

It really isn’t questionable.

Section 6 of the RTA 2004 was amended by Section 5 of the Residential Tenancies (Miscellaneous Provisions) Act to permit notices to be sent by electronic means.

If a tenant has consented contractually to receipt of notices at a particular email address and you send a notice to that address, you’re good.

There really is no risk involved.

Certainly no harm posting or hand delivering the hard copy notice as well but the email legally suffices as valid service.
 
Sarenco said:
Section 6 of the RTA 2004 was amended by Section 5 of the Residential Tenancies (Miscellaneous Provisions) Act to permit notices to be sent by electronic means.
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What happens if a tenant deletes their email address, moves from say gmail to icloud and doesn't actually receive the email. A judge could rule the notice is not served.
 
Again, it doesn’t matter.

If they’ve agreed contractually to receive notices at a particular email address and you send it to that address, it’s validly served.
 
Sarenco said:
If they’ve agreed contractually to receive notices at a particular email address and you send it to that address, it’s validly served.
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I don't think that is unreasonable. The tenant has a duty to keep the agreed email address active.

However, I wouldn't be willing to give it a 100% chance that a court would see it that way.

This is especially true if the email bounces. The recipient server has explicitly said that the mail was not accepted.

If you sent a notification in the post, and the letter comes back "return to sender", then I think it would be unwise to assume it was served.

If there was an 80% chance that the courts would accept it, then I don't think it would be wise to just leave it and hope for the best. The landlord is betting months, and even years, worth of delay on the basis that the courts will accept the notice.
 
Trust me - it is 100% the case that the Courts would accept that the notice has been validly served in these circumstances.

Again, this is only where a tenant has contractually agreed to accept receipt of notices at a particular email address.

What would be the point of that contractual provision if the tenant can simply de-activate an email address to avoid service?

Or do you think the Courts would simply ignore the contractual provision?
 
Such a complicated process to ensure a notice between a landlord and tenant is successful whether the word used is send, issue, post, serve, deliver, hand to, present, email to etc. If there’s a definitive method, the RTB should make it crystal clear on their website. How can landlords ensure they comply with the rules if nobody sets out what the rules are. It’s farcical.

Every landlord should be writing to Minister James Browne to complain, a qualified barrister who must be well aware of the procedure concerning notices. Or their local TD to raise this in the Dail.
 
I submitted a query to the Irish Property Owners Association (IPOA) quoting polecon's queries in Post No 51 and the reply I got back was as follows:
"We are aware of the situation. This has been highlighted with the Department of Housing and the RTB; currently we are awaiting clarification. We have a meeting with RTB next week, any new information we receive will be communicated to our membership as soon as possible." End of the reply.
 
JamieB_ said:
Would be better if two adults could enter into a normal contract without a million hoops and trips.
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Maybe, but because there’s so much legislation now (not only directly in the RTA but in a myriad of other acts) it’s likely every aspect of letting a property privately will become much more formal as owners insist on protecting their own interests.

I can see where leases will not be signed/ finalised until tenants have been thoroughly vetted and confirm they have taken separate legal advice about every T&C in the lease and their statutory responsibilities. Any little change to the agreement will have to be formally documented so the days of laisez-faire tenant swaps, paying rent late, having unauthorised pets, taking in lodgers, adding extra occupants, etc, are gone IMO.

I saw a resident/ tenant handbook from one of the AHBs recently, it had 112 pages, everything was detailed. Every AHB and local authority has extensive procedures and documentation so people are informed in advance of becoming one of their tenants. A lot of private landlords have been getting by (up to now) by relying on lease documents from an EA, or RTB, or even one found online and then just handing over the keys to a half million euro property and hoping that everything will be ok.

The ‘date’ problem from that high court case just highlights the numerous ways a trusting landlord can be caught out.
 
JamieB_ said:
I picture Brown sitting there reading about landlords issues wiuth his rules and just laughing his head off at them.
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Yes, instructing some civil to send a standard 'I am very concerned and my officials are acting on as a matter of urgency' and then deleting all the emails and never thinking about them again.

I'd say the same thing happened to the IPOA with the consultations in advance of the new rules. A lot of nodding and note taking and then the whole thing thrown in the bin and completely forgotten about.
 
galway said:
taking it out on the RTB when they should be taking it out on him
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Well he said last year in the Dail that “Compliance with rental law and its enforcement is an operational matter for the RTB”. So if the RTB provided forms for Rent Reviews and Notice of Terminations which landlords are legally obliged to use, it’s their mess.

Plus, as part of their enforcement powers, the RTB can issue fines, sanctions or instigate a criminal charge against a landlord who gets anything wrong on those compulsory forms. Rules from a state agency are accepted by landlords and tenants but when it transpires that the forms and rules that landlords need to comply with are wrong, that’s a serious problem. Wonder what Ms Steen and her senior team will have to say about their mistake? They’d be more suitably engaged in getting stuff like this correct instead of putting out videos caricaturing landlords IMO.
 
Greenbook said:
Email makes this easier, but is this the date the email is sent or when it is opened by the RTB and/or the tenant. If the tenant doesn't open the email for a week, when is the notice served?
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Logic would suggest if you email both (teant and RTB) on the same email then both are served at the same time and meets the requirements of the Act.

If neither open the for a couple of days and on different days it is completely unrealistic to say they were served on different days. You can't be held responsible on when someone opens an email.
 
The Horseman said:
Logic would suggest if you email both (teant and RTB) on the same email then both are served at the same time and meets the requirements of the Act.

If neither open the for a couple of days and on different days it is completely unrealistic to say they were served on different days. You can't be held responsible on when someone opens an email.
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Just to be pedantic as it might matter in some context, it's no longer given as an option to email the NOT to the RTB. The ways given in their guidance is upload via online portal or post.


E.g.
 
And of course, not many accommodation providers as of now are going to have the signed document in place where tenant agrees to receive the notice via email.
 
stormy said:
Just to be pedantic as it might matter in some context, it's no longer given as an option to email the NOT to the RTB. The ways given in their guidance is upload via online portal or post.
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Hmm, I wonder if that is actually allowed :). I think probably, it is.

The Act said:
[The notice] may be served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(ca) by sending it by electronic means to an email address, fax number or other electronic contact point used by the person for receiving emails, faxes or other electronic messages, where a record that the notice or other document has been sent is made for the sender by the email system, fax machine or other electronic system used;

(d) where the notice or other document relates to a dwelling and it appears that no person is in actual occupation of the dwelling, by affixing it in a conspicuous position on the outside of the dwelling or the property containing the dwelling.
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Sub-section (ca) says that you can send it by "electronic means".

Does uploading to a website count.

It would count as "electronic means".

It is not "an email address", or a "fax number".

Is it an "other electronic contact point"? That isn't 100% clear. Is a website a "contact point"? I could see a tenant arguing that it isn't a contact point. Someone might give you their website domain name, but then you would actually contact them using the email address on the website. The email address would be the contact point, rather than the domain name.

OTOH, some people might put their website domain name as part of their contact details on a business card.

In any case, it is not one of the explicitly valid methods for contacting people.

It has to make a record that the notice was sent. I assume that the RTB do that. Can you view the notices you have uploaded on their website.

An interesting point is that if "an address for service has been furnished", you must use that address. Safest would be to send to both the dwelling and the furnished address.

This might mean if there is an agreement to use the email address, then you must use the email address. Though that is a different sub-section, so probably not.
 
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