Letting Agreement | Terry Gorry & Co. Solicitors

Residential Letting Agreements-Landlord’s Obligations

The obligations of a landlord in a residential letting or tenancy
A landlord’s obligations in a residential tenancy and letting can be very onerous. A good working knowledge of your rights and obligations can be very important.

The governing legislation is the Residential Tenancies Act 2004.

The residential tenancies act 2004

The Residential Tenancies Act 2004 applies to every dwelling which is the subject of a tenancy.

There are some limited exceptions where the residential tenancies act will not apply but this report is intended for the vast majority of residential lettings which have arisen over the last 10 years in Ireland.

Part 4 Tenancy

One of the most important effects of the residential tenancies act is that where a person has been in occupation, under a tenancy, for a continuous period of 6 months then, provided no notice of termination has been served, then the tenancy will continue for 4 years.

This right of the tenant is of huge significance for many landlords and this tenancy is then called a Part 4 tenancy.

Landlord and Tenant’s obligations

All of these obligations are set out in the act and are incorporated in the standard letting agreement which is used by most solicitors in Ireland.

You can see this agreement at www.dsba.ie (Dublin Solicitors Bar Association) so if you are unsure as to your obligations as a landlord or tenant have a look there first or consult your existing agreement if you are currently a landlord/tenant.

Rent/Rent review

Rent may not be set at an amount greater than the market rent for the tenancy in question and any disputes can be referred to the Tenancy Tribunal of the Private Residential Tenancies Board (www.prtb.ie)

Termination of Residential Tenancies

Tenants of fixed term tenancies ie the standard 12 month letting agreement common in Ireland have security of tenure from the word go as a result of their 12 month agreement.

Termination of a residential letting by the Landlord

A landlord can terminate a Part 4 tenancy prematurely on one of 6 grounds laid down by the legislation and only then when he serves a notice of termination stating the ground and has served the notice in accordance with the notice periods laid down by the act.

The 6 grounds for premature termination of a Part 4 tenancy by the landlord are

1.The tenant has failed to comply with their obligations. However the landlord has to notify them of their failure and give them a reasonable time to remedy the failure.
2. The property is no longer suitable for the tenant.
3. The landlord intends entering into an agreement within 3 months to sell the property.
4.The landlord requires the property for his own use or for a family member (but he must specify who he needs it for and for how long)
5. The landlord intends refurbishing or renovating the property.
6. The landlord intends changing the use of the property to some other use.

If the landlord uses one of these grounds dishonestly then the tenant can make a complaint to PRTB and they can award compensation to the tenant.
PRTB awarded over €5,000 to a tenant who had been illegally evicted in Galway in 2006.

Termination of a residential letting by the tenant

The tenant may terminate by giving a notice of termination to the landlord with the required notice period.

Unlike the landlord the tenant can bring a Part 4 tenancy to an end without giving a reason.
The first 6 months
A landlord can terminate a tenancy, provided it is not a fixed term tenancy, within the first 6 months without giving a reason.

However he must give the statutory notice period.

12 month fixed term tenancy

The right to terminate prematurely in this instance is limited to situations where either party is in breach of the agreement or in breach of their statutory obligations.

Landlords need to be careful here as the fixed term tenancy gives more protection to the tenant than they would have if they only had a Part 4 tenancy as this can be terminated in the first 6 months without giving a reason.

Further Part 4 tenancies

Where a tenancy continues to the end of the 4 years of the part 4 tenancy and neither party serves notice of termination then a further Part 4 tenancy will arise and will last for 4 more years.

Multiple Occupants
Security of tenure applies to any premises occupied by multiple tenants from the earliest date at which any of them has 6 months occupation clocked up.

Contracting out

You can not contract out of Part 4 of the act which means no matter what you want to agree with the tenant he has his statutory entitlement to a Part 4 tenancy.

Notices

Notice must be served to terminate in all cases. The periods are different for tenants and landlords.

Termination notice
This must

Be written
Signed by the landlord/tenant
Specify the date of service
If the tenancy is for more than 6 months state the reason
The date of termination
Notice Periods
Where the landlord wants to terminate where the tenant is in breach the period depends on the default-anti social behaviour requires only 7 days notice.

For any other reason the period is 28 days and if it is non payment of rent then the landlord must first notify the tenant in writing that the rent is overdue. He must wait 14 days and then serve the notice of termination of 28 days.

Termination by landlord

Length of tenancy Notice period

Less than 6 months 28 days

>6 months and <12 months 35 days Between 1 and 2 years 42 days Termination by tenant Length of tenancy Notice period Less than 6 months 28 days >6 months and <12 months 35 days

Between 1 and 2 years 42 days

Time limit for disputing a notice of termination

Must be referred to PRTB within 28 days of receipt of the notice.
Residential Letting Agreement Template

Repairs in a Landlord/Tenant Agreement/lease

Generally the tenant will usually be liable for repairs. With residential tenancies the obligation to repair is set out in the Residential Tenancies Act 2004.

However these obligations are in addition to any other statutory obligation such as The Landlord and Tenant Act 1980 and the Housing Regulations 1993.

Housing Regulations 1993

These regulations require landlords to maintain certain minimum standards and Article 5 requires the landlord to keep such houses in a proper state of structural repair.

These regulations have been poorly enforced and have been superseded to a great extent by Residential Tenancies Act 2004 which has increased the penalties for breach of Housing (Miscellaneous Provisions) Act, 1992 which was the forerunner of Housing Regulations 1993.

Landlord and Tenant (Amendment) Act 1980.

This act limited the landlord’s remedy when the tenant was in breach of a covenant concerning repairs.

Section 65 essentially limits the tenant’s liability to the landlord’s loss in value of the building e.g. if a premises is worth €750,000 and the building was damaged to the extent that it is now worth €600,000 the tenant will be liable for €150,000 even though it may cost the landlord €200,000 to repair.

Section 87 also allows the tenant to carry out repairs which the landlord was bound by covenant to do and then deduct the cost of those repairs from the rent.

The Housing Act, 1966 states that in relation to a house a condition shall be implied into the lease that at the commencement of the lease the house is reasonably fit for human habitation and the landlord will keep it so.

Regardless it is necessary for the tenant to serve a notice on the landlord setting out the disrepair complained of and requesting the landlord to sort it out.

In Conclusion

There is nothing to stop both parties at the outset concluding their own agreement and providing for liability in most situations.

As noted at the outset it will generally be the tenant who will be liable for repairs. It must be noted however that sect. 12 and 16 of Residential Tenancies Act 2004 places specific obligations on both landlord and tenant re tenancies to which the act applies and sect. 18 provides that these obligations can not be varies or contracted out of by any lease or agreement.

In commercial leases it is more common for the tenant to be responsible for both interior and exterior repairs. One important point here is the phrase ‘to put and keep in repair’ in a covenant.

This has been held to mean that the tenant must put the premises in repair, not just keep so it is crucial that commercial leases are scrutinised closely.

Generally if a dispute goes to court which turns on the repairing covenant the court will consider a number of factors including location, age of building and the kind of tenant likely to rent the building when deciding the extent of the tenant’s liability under an ordinary repairing covenant.

Remedies

I have dealt elsewhere on this site with residential tenancies and the Residential Tenancies Act 2004 and the termination procedures.

From the landlord’s perspective

Forfeiture (only applies to premises outside the scope of Residential Tenancies Act 2004) This can occur where the written lease contains a provision for re-entry

Damages (most leases nowadays include a covenant by the tenant to make good all loss sustained by the landlord as a result of a breach by the tenant on any covenant/condition contained in the lease.

From the tenant’s perspective

Damages ( a tenant can carry out the necessary repairs when the landlord is in breach of the covenant to repair and can then sue for damages)

Set off against rent (a tenant can set off the cost of repairs against rent due)

Injunction/specific performance (this is available to the tenant where the landlord is in breach of the covenant to repair)

Termination (landlord’s failure can be taken as a breach of contract)