Should I just terminate case before PRTB?

[gebbel]

I am interested in peoples' opinions on this. I am helping a Polish national initiate a case against a landlord due to the non-return of a deposit of €875. The tenant had lost his job here suddenly and, once he realised there was no more work here, he decided to return home to Poland. He informed the landlord 5 weeks before he vacated the premises and was told that his deposit would be refunded. When he moved out, however, the landlord told him he wasn't giving back any cash as he had broken the terms of the lease. The main point here was that the tenant had not said it in writing. The tenant went back home the next day without his deposit.

At this point I was asked by the tenant to help. I called the landlord a few times but he wouldn't engage with me at all. So I initiated proceedings with the PRTB. That was one year ago.

This week a date has been set. The PRTB have sent me the landlords side of the story. In the lease it does say that it is a 12 month tenancy and to break this would result in forfeit of the deposit. The tenant said he signed a lease but his poor grasp of the English language meant he may as well have been signing his life away (I am not using that as an excuse by the way). If the landlord had engaged with me and furnished me a copy of the lease, I would have viewed things differently.

My question is this: in light of the above is there any point even showing up to the PRTB next week? I don't want to waste any more time with this if the tenant hasn't a hope in hell.

By the way I am a landlord myself and if I was given 5 weeks verbal notice of a tenants' wish to vacate the premises, I would not forfeit their deposit.

 

[Eithneangela]

The landlord is perfectly (not necessarily morally) within his rights to retain the deposit particularly as it is clearly stated in the Rental Agreement. The tenant really has no case and any time expended in pursuing it is likely to be wasted.

 

[Bronte]

My understanding is that the rules on rental deposit are as per the PRTB rules and not what is in the lease. You cannot avoid the legislation by drafting leases contray to the PRTB rules.

I also don't understand how Gebbel can take the case for the tenant, does the tenant not have to be at the hearing?

 

[sharpsuit]

The landlord must be able to prove that he was put to loss. He must show there was a period where he was without rent due to the invalid notice of the tenant. The landlord must show that he took steps within the five weeks to rent out the place.

The landlord is also prevented by estoppel by conduct from disputing the notice after having first not disputed the notice when it was served orally by the tenant. The landlord was bound to dispute the validity of the notice immediately and not hold out until the tenant had left the property to raise this issue.

Section 80 of the Residential Tenancies Act gives a party 28 days to dispute the validity of any notice. The landlord did not dispute the validity of the notice served by the tenant within 28 days of it being served so cannot do so now.

You should certainly give the case a go and these quasi-judicial hearings really come down to credibility. PM or post if you want more.

 

[gebbel]

The landlord is perfectly (not necessarily morally) within his rights to retain the deposit particularly as it is clearly stated in the Rental Agreement. The tenant really has no case and any time expended in pursuing it is likely to be wasted.

Section 80 of the Residential Tenancies Act gives a party 28 days to dispute the validity of any notice. The landlord did not dispute the validity of the notice served by the tenant within 28 days of it being served so cannot do so now.

You should certainly give the case a go and these quasi-judicial hearings really come down to credibility. PM or post if you want more.

Conflicting opinions encourage me to proceed, as it shows that there are different interpretations. I have read the landlords deposition over and over. He says that the tenant had an obligation to find somebody in his place. However he never communicated this to him, or if he did the message never got through. I don't expect the PRTB to be sympathetic to the fact that the tenant's very basic grasp of the English language was a severe handicap in all of this...but it has to be considered. The landlord has also thrown in an allegation of damage to storage heaters which is absurd.

My understanding is that the rules on rental deposit are as per the PRTB rules and not what is in the lease. You cannot avoid the legislation by drafting leases contray to the PRTB rules.

I also don't understand how Gebbel can take the case for the tenant, does the tenant not have to be at the hearing?

The PRTB has accepted me as the tenant's representative here, after confirmation in writing by him. The tenant is back at home and intends to stay there. He feels very wronged in all of this and I am going to try and get him back some, or all of his deposit.

 

[mathepac]

gebbel, fair play on taking up the case with the PRTB.

Did the tenant get a copy of the lease at any stage or are you depending on whatever documents the landlord produces on the day?

 

[gebbel]

The landlord must be able to prove that he was put to loss. He must show there was a period where he was without rent due to the invalid notice of the tenant. The landlord must show that he took steps within the five weeks to rent out the place.

The landlord will be able to demonstrate that it took 2 weeks after the tenant vacated the premises for him to have rented it out again. He says he also had to reduce the rent to get a new tenant. Rents were beginning to come down rapidly this time last year and he fell foul of that. The loss in rental income for the balance of the original lease he is also claiming for. He has also mentioned the cost of advertising etc., but I will be able to demonstrate that it took him 3 weeks to get an ad up on daft.ie. Hardly a rapid reaction to get a new tenant after being given 5 weeks notice.

 

[gebbel]

gebbel, fair play on taking up the case with the PRTB.

Did the tenant get a copy of the lease at any stage or are you depending on whatever documents the landlord produces on the day?

The tenant did sign the lease. The landlord then took the lease away and did not leave him with a copy. I only received a copy of the lease on Monday from the PRTB. The way it works is that the disputing parties receive a copy of each others' testimonies (including leases, bills etc.) 1 week prior to the mediation process. The landlord certainly seems to hold all the aces here but we will see.

 

[Bronte]

Why is the claim of damage to the storage heaters absurd?

If the tenant signed the lease then at the very least he should have acquainted himself with what was written therein. I'm not sure who has the better case as the landlord seems to have received 5 weeks notice. What does the lease say about notice? Maybe you could put a copy of it up here ( but blank out all identifying features). Most PRTB cases that go against the landlord are for not returning deposits.

The basic case seems to come down to did the tenant serve valid notice, if he did then the landlord has no claim. If the tenant has damaged something then some or all off the deposit would rightly have been withheld.

Really as a landlord I can't see why with 5 weeks notice you wouldn't return the deposit.

 

[gebbel]

Why is the claim of damage to the storage heaters absurd?

Because the tenant never used them, he never even turned them on. His tenancy was from March to the end of August. Not a time for storage heaters!

If the tenant signed the lease then at the very least he should have acquainted himself with what was written therein.

I agree but remember we are talking about a Polish guy with very limited English. The legal jargon and clap-trap of a tenacy lease can confuse even us natives in fairness! The tenant always believed that one months notice would have sufficed... and he added 1 week to that just to be sure.

The basic case seems to come down to did the tenant serve valid notice, if he did then the landlord has no claim. If the tenant has damaged something then some or all off the deposit would rightly have been withheld.

Well 5 weeks seems pretty reasonable to me. I myself have returned deposits on 6 days notice.

Really as a landlord I can't see why with 5 weeks notice you wouldn't return the deposit.

I am hoping the PRTB will agree with you here, but I have my doubts. Anyway the case will go ahead tomorrow so I will update then.

 

[sharpsuit]

It is significant that the tenant did not have the document to read through at the time he was seeking to end the tenancy. If the landlord wishes to bind the tenant with the lease, the tenant must be supplied with a copy of the lease.

Secondly, did the landlord raise the issue of the lease at the time the notice was served? Did he say - at the time notice was served - you can't serve notice because of the lease?

Given the tenant's lack of English, there is obviously a huge imbalance in the bargaining power between the parties. This throws up an argument in relation to whether the fixed term was itself an unfair term, especially as the tenant was not supplied with a lease.

 

[Bronte]

In relation to English I don't think ignorance of the law is a defence. It's not the landlord's fault the tenant doesn't understand English.

We actually do not know if the tenant got a copy of the lease or not. But he did sign it. It doesn't matter if he didn't understand it, he signed it.

Re storage heaters, are you telling me that in Ireland heating is not required in March, no way.

My point about being reasonable is not relevant, what is relevant is if the tenant gave valid notice.

It'll be interesting to see how you get on and fair play to you for helping a non national.

 

[gebbel]

In relation to English I don't think ignorance of the law is a defence. It's not the landlord's fault the tenant doesn't understand English.

Agreed, but I will be throwing it in anyway as a mitigating factor. Furthermore, and perhaps more relevant, the landlord never requested verbally a written notice of termination. There were many phone calls and text messages between them and myself towards the end...he could have reminded him that he was demanding this.

Re storage heaters, are you telling me that in Ireland heating is not required in March, no way.

It is plausible that the tenant never used them. That is what he told me and I have no reason to doubt him.

 

[gebbel]

I will summarize the Landlord's submission. Tomorrow night, I will post the decision of the PRTB. It is possible, however, that they will have to consider their verdict and give it after a couple of weeks.

1. Tenant enters into contract with landlord 01/03/2008, a lease for 12 months, at €875 per month plus deposit of same.

2. Lease broken after 8 months. 5 weeks notice of termination had been served.

3. Landlord tells tenant that tenant is responsible for finding replacement. Tenant says he made effort through workmates etc. but nobody was interested. Ad was put on local paper. Same result.

4. Landlord puts new advertisement up on Daft.ie 2 weeks before tenant vacated premises, although 5 weeks notice had been given.

5. Landlord meets tenant on day of moving out. Says he is not refunding deposit as has no new tenant. Blames tenant for this. I become involved at this point. Tenant departs Ireland for home. Communication between myself and landlord breaks down as he refuses to engage with me. PRTB apllication submitted.

6. Landlord gets new tenant 2 weeks later.

7. PRTB application takes 1 year to be processsed.

8. Landlord's assertion of loss which he will submit tomorrow:

a). 2 weeks loss of rent......€437.50
b). Landlord had to reduce rent from €875/ month to €775/ month to secure new tenant. He will claim that he was at a loss for the remaining 3 and 1/2 months of the tenant's term. This amounts to €350 (at €100 month).
c). Daft ad which cost €20.90
d). Storage heater repair €39
e). Electrician €70
f). Landlord's bus journeys to and from his apartment €52

So the landlord's alleged loss was €969.40 and the deposit paid was €875 which puts him out of pocket to the tune of €94.40. He intends to pursue this loss should the PRTB find in his favour.

Now it's up to the PRTB to decide.

 

[Buckshee]

Go on..... 4 days later and you still haven't posted the decision of the PRTB. . . the suspense is killing me

 

[Silver2]

Gebbel: could you let us know the PRTB;s decision- Thanks.

 

[Buddyg]

I'm guessing he hasn't been back because he lost.

d). Storage heater repair €39 NO
e). Electrician €70 NO
f). Landlord's bus journeys to and from his apartment €52 NO

 

[sharpsuit]

It is more likely that OP has not received the outcome of the hearing yet. It apparently takes the adjudicators two weeks to return the reports to the PRTB but it can take months for the PRTB to issue the reports.

 

[gebbel]

Tenant v Landlord PRTB adjucation and verdict.

OK, after over 5 months after the hearing the PRTB finally came back with their judgement. This particular kind of Landlord/ Tenant dispute (non-return of Security Deposit etc.) is one of the more frequent that the PRTB deals with every day. Therefore I will post the case history and verdict in it's entirety, for the benefit of AAM members and anyone else who would like to know how the PRTB settles such cases.

Private Residential Tenancies Board - Report of Adjudication - Case No. DR....

Claim by Applicants:

The Applicants sought the refund of the deposit of €875.00 paid to the Respondent.

Defence by Respondent:

The Respondent claimed a loss of rent arising from the Tenants breaching the Letting Agreement in that they left prior to the expiry of the term provided for under the Tenancy Agreement and also the costs of repairs to the storage heater and the cost of advertising for the purposes of obtaining a new tenant.

Findings of Fact:

The parties had entered into a Tenancy Agreement for a term of 1 year from the 1st March 2008 in respect of the property at Apartment...(address)....at a monthly rent of €875.00 and that the Applicants had paid the Respondent a security deposit of €875.00. This was also agreed to by both parties.

That the Applicants had left the property on the 3rd October 2008 prior to the expiration of the term agreed between the parties. 5 weeks notice had been given.

It had not been established that the Applicants had been responsible for the defective storage heater and the costs of repair of same.

PRTB Determination:

The PRTB determines that the Respondent Landlord shall pay to the Applicant Tenants the sum of €55.70 within 14 days of the PRTB issuing its order under section 121 of the Residential Tenancies Act 2004 being the balance of the retained security deposit having deducted €819.30 in respect of loss of rent and €5.96 suffered by the Landlord in advertising costs in respect of the tenancy of the dwelling at Apartment...(address).....

Summary of Reasons:

Under the Tenancy Agreement made between the parties the Applicants were liable for rent in respect of the property up to the 28th February 2009 being 12 months from the 1st March 2008. The Applicants in breach of their obligation under the Tenancy Agreement vacated the property and handed possession back to the Landlord on the 31st October 2008 leaving approximately three and a half months before the term would normally have ended. The landlord succeeded in getting a new tenant 16 days after the 31st October on the 16th November. The PRTB do not regard this as an inordinate delay on the part of the Landlord in obtaining a tenant. The Landlord is at the loss of rent as agreed for the 16 days in November 2008 which we calculate at €466.67 (16/30 x €875). In addition the Landlord had to take the new tenant at the lesser rent of €775.00 which would result in a further monthly loss of €100 to the Landlord until the end of the agreed term i.e. 14 days in November representing a loss of €46.67 (14/30 x €100.00) and €300 representing the 3 months to the end of February 2009. In relation to the advertisement costs of €20.90 (Daft.ie Ad), this would have been a cost which would have to be incurred by the Landlord if the Tenants had proceeded to remain in the property until the end of the agreed term. However, the cost covers both the period from the time the Applicant Tenants vacated the property until the end of the term and a further period representing in aggregate 1 year. Therefore it is appropriate that the Applicant Tenants should pay the proportion of the said cost referable to the period from their vacating the property until the end of the term that is 104 days and therefore we have allowed in favour of the Respondent €5.96 (104/365 x €20.90). Therefore the the total loss of rent suffered by the Landlord is €813.34 (466.67+46.67+300) and in addition a proportion of the advertisement cost being €5.96 making a grand total od €819.30.

It is appropriate that the Applicant Tenants should be held liable to the Landlord for this amount.

With reference to the Landlord's claim for the cost of repairs to the heater of €109.00, while the Landlord says the damage arose as a result of clothes being placed on it, the Tenant denies that the heater ever worked during their occupation and that they never placed clothes to dry on the heater. In view of the fact that there is no clear evidence that the heater had been working when the Applicants tenancy commenced nor any expert evidence such as a report from an Engineer to say that the damage could only have been caused by clothes drying on the heater and not from any other cause the PRTB are not prepared to allow this amount in favour of the landlord.

Therefore deducting the loss of the Landlord of €813.34 plus the proportionate cost of the advertisement of €5.96 from the deposit retained of €875.00 I deem it appropriate that I make a determination in favour of the Tenants of €55.70.

Signature______________

Adjudicator

 

[OakesP]

I would agree with Sharpsuit. These tribunals are ones of fact and not ones of law. If not estoppel, argue that the landlord varied the necessity to provide written notice and any specific time periods by accepting (if this is the case) the verbal notice. In essence the case will be decided by the story most credible before the tribunal. If you feel your Polish friend is credible and telling truth and has evidence backing up his version of the discussions, why not go for it?