Tenants in house share want room left empty and impact of taking in new tenant after 1st March behind my back.

[LarryScott]

I think I will draft a notice of termination on the basis if one of the existing tenants sneak in a new tenant I may be unable to evict for 6 years

I think, but wouldn't guarantee, that that isn't the case.

It seems that a single tenancy can have different tenants as time passes. The 6 year cycle starts when the original lease starts, even if tenants change.

Also, if the tenants add a paying guest/licensee, then that doesn't create a tenancy for at least 6 months. You have to agree, and even then it should add that tenant to the existing tenancy, not create an entirely new one.

However, who knows what the RTB will do. Even if you are right, it could delay everything with appeals.

 

[Pmc365]

It would be a huge relief to me if I have misinterpreted the rules as regards the existing occupants sneaking in a new tenant / licencee behind my back and charging market rent thus reducing their rents and granting them security of tenure for 6 years by default ( which I definitely think they're up to as never before did they express the wish a room be left vacant on the bogus excuse of dampness), with them willing to pay extra due to the vacancy only after I pointed out to head tenant he was jointly and severally liable to rent.

 

[lff12]

Should I serve all occupants with a notice of termination as 1.the property is currently only achieving half of market rent and 2. I think the tenants are going to sublet a room behind my back as all of a sudden after all these years they dont want it rented out.

You can serve an NoT for breach of contract, but you would require evidence.
Its also possible that they just are going to split the rent between themselves - its not uncommon for some tenants to "couple up" and the non couple tenants eventually leave.
Find out whats actually going on first before you jump.

 

[DannyBoyD]

Serve notice for own use.

You will want to clean / empty / repaint anyway after its been tenanted for so long, and of course tackle that damp

And while you are doing that (in your spare time), you can give more time to planning what you want long term.

 

[Luternau]

This is a bizarre thread/situation. You say you have a law degree but have not kept up to date with rental legislation, have let a property on the most complex and involved basis (taking payment by the room and not really sure how long some tenants are there). You are not registered with the RTB but say you say fully tax compliant (maybe not if you have interest payments that you are claiming tax relief on).
Anyway, the time for thinking I will do 1, 2 or x, y , z is rapidly running out. You should issue a notice of termination to sell, but if you prefer, as @DannyBoyD suggested, for personal use.
You say you have a big CGT liability if you sell...that's a tax on a substantial profit, so what's so bad about that?
Continued rental at 50% of market rent with all those complications, possibly significant maintenance costs or issues with tenants makes zero sense.
If you decide to rent a property again, go for one lease for property, for the highest rent you can charge based on the flawed or skewed RTB register, and register the property with the RTB, which you should know is required.
As someone with a law degree, you should know and be able to go to RTB site and see how to retrospectively register your tenancy from the true commencement date, not a made up one to avoid arrears penalties, which you are liable to pay from the dates of the beginning the current tenancy. Suggesting you put a false date in is not something AAM can advise you on.

 

[Greenbook]

Continued rental at 50% of market rent with all those complications, possibly significant maintenance costs or issues with tenants makes zero sense.

That is 100% correct.

You have a huge amount of complications and risks for very little return.

You need to regularise and then exit this situation.

 

[Pmc365]

Update.

One of the existing occupants ( not on original written letting agreement) is leaving.

He together with the other two tenants ( one of whom is on original letting agreement) told me a new "tenant" had been chosen unilaterally to take over room of the departing occupant and I could send my bank details)

I said no, I didnt agree with this as I hadnt been consulted in advance. ( this was how they did it historically -a new occupant was chosen unilaterally as people left so I dont blame them )

There will now only be two tenants in property, only one of whom was on original letting agreement.

One of the tenants on original lease said he will only pay his share of rent and wont pay for vacant room. The original letting agreement said he was jointly and severally liable for rent.
I am seriously considering giving written notice.

Property when at full occupancy is half of market rent as tenants there for many years.

The tenant there for years also said they need to be consulted if I choose to get a new occupant but I'm very reluctant to get a new occupant in fear of them having more legal rights.

Does a new occupant in a house share who moves in after 1st March have new legal rights compared to the existing occupants there before 1st March?

This is of such importance the RTB should issue guidance. They are incompetent.

 

[JamieB_]

Follow he rules for warnings if he wont pay the rent and then give them their notice when its not paid. Then sell. This kind of crap is think is just going to get worse and worse and the rules will change again. Sell and get out before the trap is sprung that you cant get out anymore.
I was talking to someone a few weeks ago who said they wouldnt sell up because they would have to pay 33% tax. After getting more detail from them they would only owe 30k CGT and would have over 300k in their own pocket after tax if they sold up now.

 

[Luternau]

Follow he rules for warnings if he wont pay the rent and then give them their notice when its not paid.

Thats good advice (based on the poster saying the original tenant was liable for the full rent).

Everything in writing to include having the original tenant confirm they will not be paying the full amount of rent due.

 

[LarryScott]

One of the tenants on original lease said he will only pay his share of rent and wont pay for vacant room. The original letting agreement said he was jointly and severally liable for rent.
I am seriously considering giving written notice.

There is one tenancy. The tenants, jointly, have to pay the entire rent. If they fail, the tenancy, as a whole, falls into arrears. If the tenancy is ended, they are all evicted. It doesn't matter which of them actually paid any rent.

That your lease says this outright is good for you, though I think it is implicit even if it doesn't.

Failure to pay the rent is a valid trigger for a NoT (there is a process though).

Tenants who have below market rent should 100% continue to pay their rent, in full. (Well, unless they are planning to leave anyway, and they want their last year or so to be rent free). A low rent is worth protecting by them.

It would be bad for them to give an easier/clear justification for eviction. Additionally, an eviction for failure to pay the rent is not a "no-fault" eviction, so the landlord can raise the rent to market once the eviction completes.

New tenants can only be added to the tenancy with your consent (or by RTB/court order). You have to be consulted, and consent, to upgrade a licensee (paid lodger) to a tenant.

This means that currently there is one tenant (the original one) and a licensee. The original tenant has to pay the entire rent if he wants the tenancy to continue. I am assuming you didn't agree to an upgrade of the other person.

If you agreed to the other person being a tenant, then they are both tenants. That might be implicit if you knew they were there (especially if they have lived there for more than six months).

If someone lives in the house for six months, or more, you can't refuse to make them a tenant if it would be "unreasonable". Up to six months, you can just refuse outright. Either way, they have to ask and you have to formally consent to the upgrade.

Does a new occupant in a house share who moves in after 1st March have new legal rights compared to the existing occupants there before 1st March?

They shouldn't. The tenancy is what is key, they would be joining the original tenancy, under the old rules.

You should get that in writing probably. Probably get them to agree that they are joining an existing tenancy and also agree to the lease.

Also, the RTB (or courts) might rule otherwise, but generally tenancies started before 1st March should stay under the old rules until the tenancy fully ends. The tenancy ends when all tenants of the tenancy leave and the landlord gets vacant possession again.

There is some question about pre-22 tenancies which are 6 year tenancies, but the feeling is that they will upgrade to pre-26 (tenancy of unlimited duration) tenancies and then stay that way.

---

Key point is to determine who is and is not a tenant.

The original tenants who signed the lease are tenants (if still living there).

(Former) tenants who have left are not tenants (ideally they would have notified you, and you would have notified the RTB)

If you upgraded someone to tenant, then they are tenants (if still living there).

Anyone living there with permission from the tenants is a licensee only.

A licensee who has been there for more than six months might be entitled to be upgraded to a tenant, but that requires that you actually do it.

If you are sending a NoT, you need to send it to all tenants individually. There is a whole complex procedure.

If might be worth joining the IPOA as they have guides and support their members with more info than is on the public site. I am not a member but many people have commented that following their advice works better, though it is still a minefield.

 

[Luternau]

Tenants who have below market rent should 100% continue to pay their rent, in full.

A low rent is worth protecting by them.

Absolutely. If I was the tenant, that is what I would be doing. Some people dont think long term or bigger picture. In this situation, that's good for the owner. The reality is the tenant in question has probably been living virtually or totally rent free by getting others in to share at market rent for the room(s).

 

[Pmc365]

@LarryScott thanks for the detailed reply which I will need time to digest.

What has happened in the past is I had a written Lease but other tenants / Licences came and left. I never rented out individual rooms but each occupant paid me separately by bank transfer. I dont remember how this came about. When one left the existing occupants told me about the new arrival without any prior consultation.

I called a halt to this and said I had to agree to any new person moving in in future.

There were 4 rooms with 4 occupied. Then one left and that room left unoccupied.The other 3 agreed to pay full rent as if 4 rooms occupied. Now another occupant is leaving. Two occupants will now occupy, one of whom is on original Lease

This person said they will not pay any extra rent to make up for fact now two rooms unoccupied as they " cant afford it".This person is only paying €400 a month for a large room in a good location in a city with huge demand for accommodation.

It seems to me the one tenant there for well over 10 years wants to control things. I am almost certain I stated on the written lease that each tenant was jointly and severally liable for the rent. The lease stated they were renting a house with rent stated to be total rent for house ( i.e. not apportioned to each tenant).

 

[LarryScott]

When one left the existing occupants told me about the new arrival without any prior consultation.

It could be argued that you agreed to the new person (even if it was presented as a fait au complet).

Ideally, you would be keeping the RTB registration up to date after each tenancy change. If you add someone as a tenant on the RTB registration system, then they are probably pretty much tenants.

Anyway, there are two left, so either they are both tenants, or it is one tenant and one licensee.

I called a halt to this and said I had to agree to any new person moving in in future.

That is somewhat within your rights.

If the tenants are allowed licensees, then they can allow paid lodgers without your permission.

If you could find a copy of the original lease, it may clarify things. Maybe you banned subletting and licensees.

In any case, if the tenant(s) don't pay the rent in full, then it doesn't matter their status, you can evict for failure to pay.

Starting the notice of termination process is quite complex and you do need to decide who the tenants are.

If only one of them is a tenant, then once you evict them, then the other person has to leave automatically. However, he may start a whole other proceeding once the eviction happens, and claim that actually he is a tenant.

On the other hand, if you just assume they are both tenants, then it is one process, but you would be recognizing a 2nd tenant and now they both have to leave to end the tenancy.

Incidentally, it looks like I-RES (largest landlord in the country) is taking a case on pretty much this issue. They have refused to allow new tenants to be added to a property. It is covered in the following thread.

RTB issues a statement on tenant swaps

This was mentioned on another thread, but may deserve a thread of its own due to its importance in house sharing arrangements. IRES Reit is refusing to allow the remaining tenant to replace a tenant who had left. Instead the remaining tenant must pay the entire rent for the apartment. This...

www.askaboutmoney.com

 

[Pmc365]

@LarryScott
Thankfully I do have a copy of the original Lease.

Since the rent,even with all rooms occupied, is well below market rent I have been thinking for a long time about serving a notice of Termination. I think I would serve it on the two existing occupants, one of whom is certainly a tenant.

I am afraid I never registered the Tenancy with the RTB. I am usually a person who adheres to the law and I am fully tax compliant ( as very fearful of Revenue) but it was a remiss on my part which I just put off and forgot about. I realise any NOT must be simultaneously served on RTB. I just dread dealing with it.

 

[bipped]

However, he may start a whole other proceeding once the eviction happens, and claim that actually he is a tenant.

If a licensee requests to become a tenant and the landlord hasn’t formally accepted them as a tenant in writing as required, do they remain a licensee?

S50 (8) …….if the request is acceded to—
(a) an acknowledgement in writing by the landlord that the requester has become a tenant of the landlord suffices for the purpose,

 

[bipped]

They have refused to allow new tenants to be added to a property.

Does this tenant obligation mean a landlord can refuse permission for assignment or sub-letting and would it apply even if a ban wasn’t specifically included in a lease:


S16. (k) F43[subject to section 3A(4) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015), not assign or sub-let] the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),


But then on the other hand, a landlord can’t unreasonably refuse to accept a licensee as a tenant. In most house-shares, a licensee (paying lodger) is in the property to replace a departing tenant, so if the original tenant is not permitted to assign to a replacement, is the original tenant still on the lease and the lodger-to-tenant is an extra tenant added on?

 

[Greenbook]

@Pmc365 I think you need to bite the bullet on this and register and pay the fines. You'll then be able to move forward.

Where is this going? Your head tenant has an ultra low and falling (in real terms) rent, decides who lives in the property and he is the boss in the house very likely. He is going nowhere and you'll never be able to increase the rent for that reason. The tenancy will remain pre March.

I know two letting agents in Cork well enough to meet for coffee every 4 or 5 months. I met one recently. Landlords are leaving, but the major exit currently is large shared houses like this with the same type of issues. As posters here spotted from the start, the new rules don't suit house shares with tenants coming and going.

Even if you get the current tenants out and re-let, problems like this will start again.

Likely as well more knee-jerk reaction legislation will be brought in and remaining tenants will get the unilateral right to swop in new tenants; see thread on IRES Reit, same issue as you have and tenants are taking them to the RTB.

I'd regularise your situation with the RTB (hire a solicitor maybe if you think you need help), issue and NoT and sell.

 

[LarryScott]

If a licensee requests to become a tenant and the landlord hasn’t formally accepted them as a tenant in writing as required, do they remain a licensee?

I would say they are still (officially) a licensee unless the landlord agrees, or there is a court/RTB ruling otherwise.

The concern would be that if the OP evicts the one tenant, then by the time the process is over the licensee could argue that they should be made a tenant under the six months rule. Then they can object that as a tenant, they need their own NoT.

I think "I rejected their request to be made a tenant, since the tenancy as a whole is in arrears and is going through the NoT process" is completely reasonable, but who knows what the RTB would rule.

so if the original tenant is not permitted to assign to a replacement, is the original tenant still on the lease

I would say that if a tenant leaves, they are automatically removed as a tenant. They are supposed to formally notify the landlord. The fact that the OP doesn't have an RTB registration means that he hasn't been keeping official track of the tenants.

Maybe a departed tenant can say that they didn't really leave and throw a spanner in the works. They would have to argue that they were still residents of the property the whole time.

I'd regularise your situation with the RTB (hire a solicitor maybe if you think you need help), issue and NoT and sell.

Bear in mind the process requires that the tenant(s) are given a chance to clear the arrears.

The landlord has to give them notice to pay the missed rent and only after that notice expires can they start the eviction process.

It is possible that the tenant will decide to pay the full rent rather than get evicted, once he gets the formal warning.

The landlord can still technically evict to sell/move-in, but then it is a no-fault eviction, so they a) have to sell/move-in and b) can't raise the rent afterwards anyway.

Anyway, they can't give notices without a valid RTB registration, so they do need to register.

Does this tenant obligation mean a landlord can refuse permission for assignment or sub-letting and would it apply even if a ban wasn’t specifically included in a lease:


S16. (k) F43[subject to section 3A(4) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015), not assign or sub-let] the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),

I think that means that if the lease says that no assignments, or subletting, is allowed, then the courts/RTB should accept that.

If the lease allows it, then that would count as consent.

I think the six months rule is separate. Upgrading a licensee probably doesn't count as as assignment,

 

[Luternau]

am afraid I never registered the Tenancy with the RTB.

As others have said, you need to address this first. It's easy enough to do, but you will have some penalties. What might be harder is deciding what tenancy/ person to register.

 

[Greenbook]

Bear in mind the process requires that the tenant(s) are given a chance to clear the arrears.

He could just terminate on the basis of sale and write off the arrears.

The arrears eviction process is incredibly complex, so if he is selling, I'd think he is better off just issuing the NoT on that basis.

It is a 4 bedroom house, I think, so the no-fault eviction wouldn't matter as an owner occupier would buy.

Maybe a departed tenant can say that they didn't really leave and throw a spanner in the works. They would have to argue that they were still residents of the property the whole time.

Your points are excellent as always @LarryScott and points like these show that the new rules are not suited to house shares at all. They assume all tenants come and go in tandem.