Stamp Duty | Stamp Duty Rates In Ireland

Stamp duty is a tax on documents and most peoples experience with stamp duty will be in relation to property purchase which gives rise to the notion that stamp duty is applied to property.

But it is actually a tax on the instrument which witnesses the property transaction and you will also see stamp duty applied to other instruments (legal documents) such as shares in companies.

The Stamp Duties Consolidation act 1999 governs this whole area and in that legislation there is a Schedule 1 which sets out the heads of charge for stamp duty which stipulates that the stamp duty on a conveyance or transfer of property will range from 0% to 9%. Each year the government in the Finance Act may change the rate of duty in various heads of charge but the duty will be calculated on an “ad valorem” (for value) rate.

Generally stamp duty will be payable if the document/instrument is executed in Ireland or if the transaction relates to property in the State. You used to have 30 days within which to stamp your document/instrument with the Revenue Commissioners; this is now 44 days and you can do the stamping online with the new online stamping service provided by the Revenue Commissioners called eStamping with the purchaser being the liable person for the duty.

However if it is a voluntary transfer, such as a gift, both parties will be jointly and severally liable.

Residential Stamp Duty Rates

The rates of duty applicable for residential property (whether new or second-hand) are as follows:
First €125,000 Nil
Next €875,000 7%
Excess over €1,000,000 9%

* Transactions, where the consideration (or the aggregate consideration) does not exceed €127,000, are exempt from stamp duty.

Stamp Duty Rates On Non Residential Property

Up to €10,000 Exempt

€10,001 to €20,000 1%

€20,001 to €30,000 2%

€30,001 to €40,000 3%

€40,001 to €70,000 4%

€70,001 to €80,000 5%

Over €80,000 6%
These rates are applicable from February, 2010.

How much stamp duty you will have to pay will depend on whether you are considered to be a first time buyer, owner occupier or investor.

First time buyers do not have to pay stamp duty on either new or second hand houses but there is a clawback of duty if the first time buyer or owner occupier lets all or part of the property other than under the Rent A Room scheme.

This rent a room relief is not available to investors.

Stamp Duty On New Homes

Investors pay full duty on new homes; first time buyers are exempt. Owner occupiers may qualify for relief from stamp duty if there is a Floor Area Compliance Certificated for the property and whether the house is completed or if it is the sale of a site and contract to build a new house.

Conveyance Combined With Building Agreement

Owner occupiers will pay duty on either 25% of the total price excluding vat or the price of the site(excluding vat), whichever is the higher.
No stamp duty is payable on contents although they are taken into consideration when apportioning the total price paid.

Stamp Duty on Leases

Stamp duty is payable on leases and is divided between any premium payable which is calculated at normal stamp duty rates and duty payable on the rent.

Residential and Non-Residential Property

The stamp duty on the premium or fine is the normal rate for residential or non residential as appropriate.
Lease for a term not exceeding 35 years or for any indefinite term-Rate: 1% of the average annual rent
Lease for a term exceeding 35 years but not exceeding 100 years-Rate: 6% of the average annual rent
Lease for a term exceeding 100 years-Rate 12% of the average annual rent

Transfers Between Spouses
Transfers between spouses are exempt from stamp duty.

Stamp Duty Reliefs

Consanguinity Relief
This relief applies to transfers between blood relations such as transfers from parent to child, grandchild, grandparent, brother, sister and some others. The relief provides for payment of 50% of the normal stamp duty that would have applied had there been no relationship.

Young Trained Farmer
There is no stamp duty on a transfer of qualifying land to young trained farmers.

Site Transfer From Parent To Child
When a parent transfers a site to a child for the purposes of building a private residence, and the value of the site is less than 500,000 euros, then there is no stamp duty.The size of the site can not be greater than 1 acre.

Farm Consolidation Relief
There is considerable relief in relation to the transfer of farms to encourage the consolidation of farms and the best place to investigate this scheme is the farm advisory body, Teagasc.

Charities And Sporting Bodies
Charities and sporting bodies both enjoy relief from paying stamp duty when acquiring property; both the charities and sporting bodies need to be approved and further enquiries should be made from the Stamp duty section of Revenue Commissioners for further information.

Gifts/Voluntary Transfers
Bear in mind that if the transfer is a voluntary transaction, that is a gift, the stamp duty will be calculated on the market value of the property at the date of transfer.

If you are thinking about buying or selling a house and want a professional, competitive, personal service, we would be delighted to hear from you.

UPDATE 2013

A much simplified stamp duty system was introduced in Ireland in 2010 with many of the exemptions and reliefs outlined above being abolished.

The stamp duty rates in Ireland are as follows:

Residential Property

Up to €1,000,000-the rate is 1%

Excess over €1,000,000-the rate is 2%

There are also reliefs in relation to transfers between spouses, civil partners, and cohabitants.

Non Residential Property

The rate was 2% until the budget announced in October, 2017 which saw an increase in stamp duty on commercial property increasing to 6%.

Capital Gains Tax On Property In Ireland

Capital gains tax is a tax on the gains that arise on the disposal of an asset. This post will look at CGT on real property only (not shares).

The charge to capital gains tax will arise when a number of conditions are fulfilled, namely,
1. there must be a chargeable gain which
2. accrues on the disposal of an asset.

The chargeable gain is calculated on the gain arising on disposal, not the sales price, so for example if you but property for €50,000 and sell for €100,000 then your gain will be clearly €50,000. Generally a company that has such a gain will not pay capital gains tax, it will pay corporation tax (unless the sale is of development land).

It is important to note that the charge to tax arises on a disposal, not necessarily a sale, so the gift of an asset gives rise to a chargeable situation if a gain arises and similarly a part disposal can give rise to a charge to tax as it too is a disposal.

The year of assessment is the year ended 31st December.

Calculating Your Capital Gain

In calculating your gain you are allowed to deduct the cost of the asset and any incidental costs of acquiring the asset, any enhancement expenditure (of a capital nature) spent on the asset and the costs of disposal such as legal fees and auctioneer’s fees.

Up to 31st December, 2002 you were allowed to use a “multiplier” to reflect the effects of inflation on your asset in calculating your gain.

For example if you bought an asset for 50,000 in 1982-83 you used a multiplier of 2.253 which you applied to the cost of your asset giving you a base cost of 112,650 which would reduce your “gain” considerably.That is no longer the case since 1/1/2003. So any assets purchased after this date will not get you the benefit of the multiplier or indexation (as it was brought in to reflect the increase in value as a result of the rise in the consumer price index over time).

If you were unfortunate enough to incur a capital loss then you could set this off against any gain in a given year and you can also carry forward unused losses to later years to offset against later gains.

Everyone has an annual exemption of €1,270 which can be set off against a gain before computing your tax liability; this annual exemption can not be carried forward though.However a spouse can not give their unused annual exemption to their spouse. The current rate of capital gains tax is 25%.

Capital Gains Tax on Gifts

For the purposes of gifts or voluntary transfers the “cost” of the asset is the market value at the time of the gift and similarly any transfer between connected persons, such as husband and wife, are deemed to be transferred at market value.

Capital Gains Tax On Development Land

Development land is land the market value of which is greater than it’s current use value at date of disposal. The significance of land being classified as development land is that the multiplier for inflation can only be applied to the current use value at date of acquisition and can not be applied to any enhancement expenditure.

Unlike ordinary disposals, the development land gains of a company are chargeable to CGT and taxed at the normal rate of 25%.

Wasting Assets

There is no charge to CGT for the disposal of a wasting asset which is an asset the expected useful life of which is less than 50 years but an exception to this rule is a lease of property which is for more than 50 years. If the lease is for less than 50 years it is a wasting asset and is exempt and if a lease is greater than 50 years but has less than 50 years to run, then it becomes a wasting asset and is exempt.

Capital Gains Tax Reliefs

Principal Private Residence

The principal private residence relief provides relief from CGT for a private residence on ground up to 1 acre provided the house has been used by the seller as his principal residence throughout his period of ownership. If he/she has not occupied the house for all of that time then there may be a gain arising out of the period of time during which he did not occupy the house.

Dependent Relative

There is also relief where you supply a house rent free to a dependent relative.

Transfer Of Site To A Child

Relief is also available where you can transfer a site of up to one acre to a child up to a value of 500,000 euros from parent to child. The child must build a house on the site and live in it as his/her principal private residence.

Retirement Relief

If you retire and are aged 55 or over and dispose of certain qualifying assets (assets used for a trade, profession, or farming) you may be entitled to relief from capital gains tax.

Termination of Commercial Leases and the Right to a New Lease-the Essentials

leases-property-law

Are you a landlord or tenant of a commercial lease?

Do you want to terminate a commercial letting agreement?

Or perhaps you want to lawfully lay claim to a new lease?

This piece aims to give you a good handle on what’s involved.

Termination of a Commercial Letting Agreement

The most common ways to terminate or end a commercial ease are

1) Notice to quit

2) Forfeiture.

Since the Residential Tenancies Act, 2004 lays down the procedure for the vast majority of residential tenancies Notice to Quit and Forfeiture now only apply to commercial tenancies.

You only use a Notice to Quit procedure where the tenant remains in possession after the expiry of the agreed term and continues to pay rent. This tenant is said to be overholding.

Where the landlord wishes to end the tenancy prior to the end of the agreed term, the appropriate procedure is Forfeiture.

Notice to Quit

Notice to quit is the most common procedure to recover the premises where the tenant is overholding, that is the term of the lease has ended.

Anybody who has received prior express authorisation may serve the notice to quit.

Where the landlord is not serving the notice to quit himself it is prudent to arrange prior written authority to be given to the server. This authority can not be given retrospectively.

There is no set form for the notice to quit but it must contain a clear and unambiguous intention to end the tenancy.

A description of the premises must be given and it must be addressed to ‘the tenant and all other persons in occupation’.

It need not be signed but it is prudent to do so.

Length of Notice

Firstly check the written agreement to see is there an agreed procedure. If not the statutory minimum is 4 weeks and the notice must end on a gale day(this is the point when one period ends and another begins).

The crucial question is how is the rent reserved in the lease (this is not the same as how is the rent paid).

A monthly tenancy requires one month’s notice expiring on a gale day.

A quarterly tenancy requires 3 months notice and this should expire on a gale day.

A tenancy from year to year requires 183 days notice expiring on the anniversary of the tenancy.

Personal service is best and in the case of a limited company on the registered office of the company.

Waiver of notice

You will be deemed to have waived the notice to quit if you

  • Serve another notice
  • Demand the rent
  • Accept the rent which falls due after the end of the notice period.

Landlords are advised therefore not to accept rent after the end of the notice to quit has expired.

Care should be taken to check the lease to see if any provision has been made for a specific method of terminating the tenancy.

Forfeiture

This is only appropriate where the term of the lease is still running. But a landlord has no right to terminate a lease prematurely unless the tenant has been in breach of one or more of it’s terms.

A landlord also loses the right to forfeiture if he does not follow certain statutory procedures which give the tenant a reasonable opportunity to remedy any breach.

It is extremely difficult in practice to forfeit a lease, especially if the parties are in court for the first time.

Grounds for forfeiture

The 3 main grounds for forfeiture are

1) Disclaimer by the tenant of the landlord’s title;

2) Re-entry or ejectment where there has been a breach of a condition in the lease;

3) Re-entry or ejectment where there has been a breach of a covenant which provides for re-entry for that breach.

Breach of condition of lease

Breach of a condition of a lease gives the landlord an inherent right to re-enter.

But the landlord must be careful to distinguish between a condition and a covenant.

Breach of covenant in a lease

A breach of covenant in a lease will only give rise to a right to re-enter if the covenant broken also has a proviso for re-entry in the lease.

Before forfeiture can take place a ‘section 14’ notice must be served unless forfeiture is occurring for non payment of rent. In this case there is strictly no need for a ‘section 14’ notice, but it is probably advisable to serve one.

This notice calls upon the tenant to remedy the breach within a reasonable time.

Peaceable re-entry

If the notice is served and the time specified in the notice has elapsed without the remedy of the breach, a demand is again made for possession and the landlord may re-enter if it can be done without the use of force. There is a statutory prohibition on the use of force.

If peaceable re-entry is carried out, and this is difficult, the landlord should make a detailed inventory of property, possessions/stock on the premises and write to the tenant telling him how he can retrieve them, and what will happen if he doesn’t.

Ejectment civil bill on title

If the landlord can not re-enter peaceably the landlord’s remedy is to issue an ejectment civil bill and seek an order for possession in court. If re-entry cannot be carried out peaceably the landlord cannot use force.

Relief against forfeiture

There are 2 reliefs for the tenant to prevent forfeiture of the lease-statutory and equitable.

Statutory

Section 14(2) Conveyancing Act 1881 allows the tenant to apply to court for relief-it is then at the discretion of the court and there are no fixed rules for the court in exercising its discretion.(Much of the Conveyance Act, 1881 has been repealed by the LAND AND CONVEYANCING LAW REFORM ACT 2009 but this relief has not been repealed).

A sub-lessee will get statutory relief and his sub-lease will continue as if the superior landlord was the immediate lessor.

The Landlord and Tenant(Ground Rents) Act 1978 provides that forfeiture can not occur by reason of failure to pay ground rent in the case of a house where the tenant is entitled to buy out the freehold.

In general there is no statutory relief where the landlord forfeits the lease for non-payment of rent.

Equitable

Courts may use its equitable discretion to grant relief to the tenant, even for non-payment of rent, if it would appear to be just to do so.

Courts lean against forfeiture for non payment of rent and tend to give tenant’s plenty of opportunity to pay up. But it will look at the conduct of the parties prior to going to court.

Other Forms of Termination

The list below is not exhaustive:

Effluxion of time

Where the term of a lease is up there is no need to serve a notice. A letter prior prior to the end of term pointing up the end of the term and demanding possession will suffice.

Merger

A lease may end when the interest of the landlord and tenant become vested in the one person in the same right.

Court Order

The court has jurisdiction under certain legislation to terminate a tenancy.

Exercise of an option (break clauses) in a lease

Commercial leases often have break clauses entitling either party to terminate prematurely.

Legal proceedings

It may still prove necessary to go to court,even after ending the lease by one of the methods outlined above.

Ejectment Civil Bill on Title Based on Forfeiture

The landlord’s claim is based on the fact that the tenancy has ended by forfeiture and the tenant has no right to retain possession. This is a very common procedure, especially where non-payment of rent has occurred.

The landlord may need to go to court a number of times to establish a poor track record of the tenant as the court is very reluctant to grant possession first time for non payment of rent.

Ejectment for non payment of rent

This is based on Deasy’s Act,1860. The huge disadvantage is that the landlord must wait until one years rent is due-not very popular method for this reason.

Ejectment Civil Bill for overholding

This is used following service of a notice to quit or where the original lease has ended and the tenant remains in possession.

From the tenant’s perspective under the Landlord and Tenant Act 1980 he must now serve notice to seek relief, that is to seek a renewal of the lease) within a certain period following service of the notice to quit.

The Entitlement to a New Commercial Lease

The Landlord and Tenant Act 1980 which was amended byLandlord and Tenant Act 1994 provide statutory entitlements to tenants in a landlord/tenant relationship.

The reliefs apply where the property that is the subject of the agreement is a tenement which is a legal description but has been interpreted fairly generously. It includes buildings which are not permanent and can include sheds erected without planning permission.

To qualify for the statutory entitlements the main purpose/use must attach to the buildings. If there is land involved then the land must be subsidiary and ancillary to the main use of the buildings.

Section 16 of Landlord and Tenant Act 1980 provides that a tenant will be entitled to a new tenancy at the expiry of his existing lease if he can prove one of the following equities

Business equity-if the tenant was in occupation for 5 years continously and was using the premises/tenement for business purposes (this period used to be 3 years); temporary breaks can be disregarded by the courts. The five year period only applies to tenancies/leases which commence after 10 August 1994 and the tenant must occupy the tenement for the entire period

Long possession equity-this applies to both residential and business property and states that if the person was in occupation for 20 years then he/she was entitled to a new lease

Improvements equity-this also applies to both residential and commercial property and states that if the tenant would be entitled to compensation for improvements and they accounted for half or more than half of the letting value of the tenement when the notice of intention to claim statutory relief, then the tenant has an improvements equity

Terms of a new tenancy

These terms are to be agreed between landlord and tenant and failing that will be fixed by the court. If the tenant is entitled to a new lease based on business equity the new term shall be fixed at 20 years or such time as the tenant may nominate, provided it is over 5 years.

If the right to a new tenancy is based on long possession or improvements the term of the new tenancy will be 35 years or a lesser term that the tenant can nominate.

Rent

This will be fixed by the court at open market value if the landlord and tenant can not agree on a new rent.

Restrictions on a right to a new tenancy

Section 85 of the act prevented any provision contracting out of the Act. However this was changed re the tenant of an office premises who could contract out of his right if he took independent legal advice and signed a renunciation under sect 4of his right and this had to be done before the commencement of the tenancy.

Other restrictions include the situation where the tenant is in breach of the lease in respect of payment of rent.

Furthermore where the landlord intends to pull the building down in order to redevelop the building/site then he can refuse to grant a new tenancy.

However if this occurs and the tenant would have been entitled to a new tenancy otherwise, then the tenant is entitled to disturbance compensation which is a right of both residential and commercial tenants.

How to claim a new tenancy

The forms required are set out in Landlord and Tenant Regulations, 1980. This notice must be served before the end of the tenancy or within 3 months of the end. (The courts have discretion to extend these time limits in limited circumstances).

Compensation for improvements

This is available to both residential and business premises. Where a tenant quits a tenement because of the termination of the tenancy he is entitled to be paid compensation for every improvement by him or any predecessors in title which adds to the letting value of the premises.

However he will not be entitled to compensation if he has surrendered the lease or the termination is for non-payment of rent.

Improvement notice

Where a tenant proposes to make improvements to the tenement he may serve an improvement notice on his landlord.

If the latter ignores it then the tenant can go ahead with the works and is entitled to compensation. However the landlord can then himself serve an improvement undertaking notice on the tenant and execute the works himself.

Or he can object to the improvement notice and the tenant can then withdraw his notice or apply to court which can allow the tenant to make the improvement or reject his claim based on the fact that he has not been in occupation for 5 years and is consequently not entitled to a new lease.

Any covenants in the lease which prohibit the selling of the building or the change of use of the building will be interpreted as only prohibiting this to occur without the landlord’s consent, and this consent must not be unreasonably withheld.

A similar interpretation will apply to any covenant in the lease prohibiting the making of improvements.

Update

The Civil Law Act 2008 has made some changes to Landlord and Tenant legislation. Previously only the occupier of an office lease could contract out of his right to a new lease as outlined above.

The Civil Law Act 2008 now allows any business user to renounce his right and furthermore allows him to renounce not just prior to the commencement of the lease but at any time. He must still receive independent legal advice.

Ground Rents in Ireland-a Minimalist Guide

ground-rent-law-ireland

Buying out the ground rent on a leasehold property is an option for many people….either in commercial or residential premises.

What is ground rent?

Ground rent is rent paid on leases which are at least 99 years old.

Features of ground rent are

* Very low rent (ie not market rent)
* No rent reviews

They can apply to both residential and commercial leases.

The Landlord and Tenant Act 1967 gave the tenant the right to buy out the freehold.

I deal elsewhere on this site with the right to a new lease and in addition to the right to a new lease the tenant may have the right to buy the freehold.

The differences are that

1. the right to buy the freehold only applies to permanent buildings on the land (the right to a new lease applies to any building, not necessarily of a permanent nature)
2. there is an occupancy requirement re the new lease procedure; there is no occupancy requirement to buy out the freehold

Landlord and Tenant (ground rents ) act, 1978

This act changed the test to establish whether the tenant has the right to buy out the freehold. Essentially it requires that in order to have the right to buy out the ground rent and acquire the freehold then the tenant must comply with all of section 9 of the act and one of the conditions of section 10.

I do not propose to spell these conditions here but they can be accessed at www.irishstatutebook.ie in the act itself.

Yearly tenants

If the tenant is a yearly tenant then section 15 of the act sets out the conditions required to obtain the entitlement to buy the freehold.

Restrictions

Section 16 of the act sets out the restrictions to the entitlement to buy out the ground rent.

Procedure

There are 2 methods to buy out the ground rent and purchase the freehold

1. For a business premises-you must use the procedure under the 1967 act
2. For a residential premises you can use either the 1967 act or the 1978 act

Both of these acts can be viewed on www.irishstatutebook.ie
Essentially there are various forms and notices to be served on the landlord and these forms can be accessed on www.landregistry.ie

If the lessor can not be found then you can make application to the County Registrar for the conveyance to be executed. Consult your solicitor to follow this procedure.

The 1978 act procedure, which applies only to residential premises, is called the Vesting Certificate procedure and these certificates are issued by Land Registry, even where the property is unregistered.

Price to buy out the ground rent and acquire the freehold

The price of the freehold is provided for in Landlord and Tenant act 1984 and makes provision for the use of an arbitrator to determine the price. The arbitrator will either be the County Registrar (1967 act) or the Registrar of titles in Land Registry (1978 act).

Generally the value will be approximately one eighth of the market price where the lease has expired.

Where the lease has not expired then Land Registry can advise as to what multiplier they are currently using. It will be approximately 8/10 times the annual rent for residential premises and 18/20 times the annual rent for commercial.

However if you find yourself in this situation it is prudent to engage the services of a professional valuer and your solicitor.

If you are paying ground rent and qualify to buy out the ground rent and acquire the freehold interest, then you would be well advised to do so.

For more information about ground rents check out the Property Registration Authority also.

Residential Letting Agreements in Ireland-An Overview

residential-letting-ireland

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

The most important exceptions are

  • a dwelling let for holiday purposes
  • a dwelling within which the landlord resides
  • a dwelling within which the spouse, parent or child of the landlord resides.

In fact, there are nine categories of dwelling not covered by the Residential Tenancies Act, 2004 which are set out in section 3(1) (subsection 2) of the Act:

(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—
(a) a dwelling that is used wholly or partly for the purpose of carrying on a business, such that the occupier could, after the tenancy has lasted 5 years, make an application under section 13 (1)(a) of the Landlord and Tenant (Amendment) Act 1980 in respect of it,
(b) a dwelling to which Part II of the Housing (Private Rented Dwellings) Act 1982 applies,
(c) a dwelling let by or to—
(i) a public authority, or
(ii) a body standing approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act 1992 and which is occupied by a person referred to in section 9 (2) of the Housing Act 1988 ,
(d) a dwelling, the occupier of which is entitled to acquire, under Part II of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 , the fee simple in respect of it,
(e) a dwelling occupied under a shared ownership lease,
(f) a dwelling let to a person whose entitlement to occupation is for the purpose of a holiday only,
(g) a dwelling within which the landlord also resides,
(h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling,
(i) a dwelling the subject of a tenancy granted under Part II of the Landlord and Tenant (Amendment) Act 1980 or under Part III of the Landlord and Tenant Act 1931 or which is the subject of an application made under section 21 of theLandlord and Tenant (Amendment) Act 1980 and the court has yet to make its determination in the matter.

Residential Tenancies Act 2004

Part 2 of the Residential Tenancies Act, 2004 is divided into 2 chapters. Chapter 1 deals with the landlord’s obligations and chapter 2 deals with the tenant’s obligations.

Landlord’s Obligations

Section 12 sets out the landlord’s obligations:

12.—(1) In addition to the obligations arising by or under any other enactment, a landlord of a dwelling shall—
(a) allow the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling,
(b) subject to subsection (2), carry out to—
(i) the structure of the dwelling all such repairs as are, from time to time, necessary and ensure that the structure complies with any standards for houses for the time being prescribed under section 18 of the Housing (Miscellaneous Provisions) Act 1992 , and
(ii) the interior of the dwelling all such repairs and replacement of fittings as are, from time to time, necessary so that that interior and those fittings are maintained in, at least, the condition in which they were at the commencement of the tenancy and in compliance with any such standards for the time being prescribed,
(c) subject to subsection (3), effect and maintain a policy of insurance in respect of the structure of the dwelling, that is to say a policy—
(i) that insures the landlord against damage to, and loss and destruction of, the dwelling, and
(ii) that indemnifies, to an amount of at least €250,000, the landlord against any liability on his or her part arising out of the ownership, possession and use of the dwelling,
(d) subject to subsection (4), return or repay promptly any deposit paid by the tenant to the landlord on entering into the agreement for the tenancy or lease,
(e) notify the tenant of the name of the person, if any, (the “authorised agent”) who is authorised by the landlord to act on his or her behalf in relation to the tenancy for the time being,
(f) provide to the tenant particulars of the means by which the tenant may, at all reasonable times, contact him or her or his or her authorised agent,
(g) without prejudice to any other liability attaching in this case, reimburse the tenant in respect of all reasonable and vouched for expenses that may be incurred by the tenant in carrying out repairs to the structure or interior of the dwelling for which the landlord is responsible under paragraph (b) where the following conditions are satisfied—
(i) the landlord has refused or failed to carry out the repairs at the time the tenant requests him or her to do so, and
(ii) the postponement of the repairs to some subsequent date would have been unreasonable having regard to either—
(I) a significant risk the matters calling for repair posed to the health or safety of the tenant or other lawful occupants of the dwelling, or
(II) a significant reduction that those matters caused in the quality of the tenant’s or other such occupants’ living environment,
(h) if the dwelling is one of a number of dwellings comprising an apartment complex—
(i) forward to the management company, if any, of the complex any complaint notified in writing by the tenant to him or her concerning the performance by the company of its functions in relation to the complex,
(ii) forward to the tenant any initial response by the management company to that complaint, and
(iii) forward to the tenant any statement in writing of the kind referred to in section 187 (2) made by the management company in relation to that complaint.
(2) Subsection (1)(b) does not apply to any repairs that are necessary due to the failure of the tenant to comply with section 16 (f).
(3) The obligation under subsection (1)(c) does not apply at any particular time during the term of the tenancy concerned if, at that time, a policy of insurance of the kind referred to in that provision is not obtainable, or is not obtainable at a reasonable cost, by the landlord in respect of the dwelling.
(4) Subsection (1)(d) applies and has effect subject to the following provisions:
(a) no amount of the deposit concerned shall be required to be returned or repaid if, at the date of the request for return or repayment, there is a default in—
(i) the payment of rent and the amount of rent that is in arrears is equal to or greater than the amount of the deposit, or
(ii) compliance with section 16 (f) and the amount of the costs that would be incurred by the landlord, were he or she to take them, in taking such steps as are reasonable for the purposes of restoring the dwelling to the condition mentioned in section 16 (f) is equal to or greater than the amount of the deposit,
(b) where, at the date of the request for return or repayment, there is a default in the payment of rent or compliance with section 16 (f) and subparagraph (i) or (ii), as the case may be, of paragraph (a) does not apply, then there shall only be required to be returned or repaid under subsection (1)(d) the difference between the amount of rent that is in arrears or, as appropriate, the amount of the costs that would be incurred in taking steps of the kind referred to in paragraph (a)(ii).
(5) For the avoidance of doubt, the condition in subsection (1)(g)(i) is satisfied if, after all reasonable attempts, the landlord or his or her authorised agent could not be contacted to make the request concerned.

In addition to the above obligations, the landlord is also prohibited under section 14 from:

14.—(1) A landlord of a dwelling shall not penalise a tenant for—
(a) referring any dispute between the tenant and the landlord to the Board for resolution under Part 6,
(b) giving evidence in any proceedings under Part 6 to which the landlord is a party (whether the tenant is a party to them or not),
(c) making a complaint to a member of the Garda Síochána or to a public authority in relation to any matter arising out of, or in connection with, the occupation of the dwelling or making an application regarding such a matter to a public authority, or
(d) giving notice of his or her intention to do any or all of the things referred to in the preceding paragraphs.
(2) For the purposes of this section a tenant is penalised if the tenant is subjected to any action that adversely affects his or her enjoying peaceful occupation of the dwelling concerned.
(3) Such action may constitute penalisation even though it consists of steps taken by the landlord in the exercise of any rights conferred on him or her by or under this Act, any other enactment or the lease or tenancy agreement concerned if, having regard to—
(a) the frequency or extent to which the right is exercised in relation to the tenant,
(b) the proximity in time of its being so exercised to the tenant’s doing the relevant thing referred to in subsection (1), and
(c) any other relevant circumstances,
it is a reasonable inference that the action was intended to penalise the tenant for doing that thing.
(4) This section is without prejudice to any other liability (civil or criminal) the landlord may be subject to for doing a thing prohibited by this section.

Tenant’s Obligations

A tenant’s obligations are set out at section 16 of the Act:

16.—In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall—
(a) pay to the landlord or his or her authorised agent (or any other person where required to do so by any enactment)—
(i) the rent provided for under the tenancy concerned on the date it falls due for payment, and
(ii) where the lease or tenancy agreement provides that any charges or taxes are payable by the tenant, pay those charges or taxes in accordance with the lease or tenancy agreement (unless provision to that effect in the lease or tenancy agreement is unlawful or contravenes any other enactment),
(b) ensure that no act or omission by the tenant results in there not being complied with the obligations of the landlord, under any enactment, in relation to the dwelling or the tenancy (and in particular, the landlord’s obligations under regulations under section 18 of the Housing (Miscellaneous Provisions) Act 1992 ),
(c) allow, at reasonable intervals, the landlord, or any person or persons acting on the landlord’s behalf, access to the dwelling (on a date and time agreed in advance with the tenant) for the purposes of inspecting the dwelling,
(d) notify the landlord or his or her authorised agent of any defect that arises in the dwelling that requires to be repaired so as to enable the landlord comply with his or her obligations, in relation to the dwelling or the tenancy, under any enactment,
(e) allow the landlord, or any person or persons acting on the landlord’s behalf, reasonable access to the dwelling for the purposes of allowing any works (the responsibility for the carrying out of which is that of the landlord) to be carried out,
(f) not do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy, but there shall be disregarded, in determining whether this obligation has been complied with at a particular time, any deterioration in that condition owing to normal wear and tear, that is to say wear and tear that is normal having regard to—
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen would occur since that commencement, and
(iii) any other relevant matters,
(g) if paragraph (f) is not complied with, take such steps as the landlord may reasonably require to be taken for the purpose of restoring the dwelling to the condition mentioned in paragraph (f) or to defray any costs incurred by the landlord in his or her taking such steps as are reasonable for that purpose,
(h) not behave within the dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in such a way,
(i) not act or allow other occupiers of, or visitors to, the dwelling to act in a way which would result in the invalidation of a policy of insurance in force in relation to the dwelling,
(j) if any act of the tenant’s, or any act of another occupier of, or visitor to, the dwelling which the tenant has allowed to be done, results in an increase in the premium payable under a policy of insurance in force in relation to the dwelling, pay to the landlord an amount equal to the amount of that increase (“the increased element”) (and that obligation to pay such an amount shall apply in respect of each further premium falling due for payment under the policy that includes the increased element),
(k) 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),
(l) not alter or improve the dwelling without the written consent of the landlord which consent the landlord—
(i) in case the alteration or improvement consists only of repairing, painting and decorating, or any of those things, may not unreasonably withhold,
(ii) in any other case, may, in his or her discretion, withhold,
(m) not use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold), and
(n) notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling.

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) as per Part 3 of the Act.

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.

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.

The above grounds are provided for in section 34 of the Residential Tenancies act, 2004.

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.(Section 36) Unlike the landlord the tenant can bring a Part 4 tenancy to an end without giving a reason.

Section 37 provides for a deemed termination by the tenant:

37.—(1) Subject to subsection (3), a Part 4 tenancy shall be deemed to have been terminated by the tenant on his or her vacating the dwelling if—
(a) before or on or about that vacating, he or she serves a notice of termination in respect of the tenancy that does not give the required period of notice, and
(b) before or on that vacating the rent has fallen into arrears.
(2) Subject to subsection (3), a Part 4 tenancy shall also be deemed to have been terminated by the tenant upon any rent owed by him or her being in arrears for a period of 28 days or more if—
(a) whether before or after the end of that period, the tenant has vacated the dwelling, and
(b) no notice of termination has been served by the tenant in respect of the tenancy.
(3) Subsections (1) and (2) do not apply if the Part 4 tenancy has been sub-let or assigned.
(4) Nothing in the preceding subsections affects the liability of the tenant for rent for the period that would have elapsed had a notice of termination giving the required period of notice been served by him or her.
(5) This section is subject to Chapter 6.

A landlord can terminate a tenanc, 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

Where there is a 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-Chapter 6

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. The rules for multiple occupants are set out in chapter 6 of the Act.

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.

Termination Notices-Part 5

Notice must be served to terminate the agreement in all cases. The periods are different for tenants and landlords and are set out in part 5 of the Act in sections 65, 66, 67. 68, and 69.

A termination notice 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

66.—(1) This section applies where the tenancy is being terminated—
(a) otherwise than by reason of the landlord’s or tenant’s failure to comply with any of the obligations of the tenancy, or
(b) by reason of such a failure but a condition in another section of this Chapter is required to be satisfied if the period of notice provided by that section is to apply and that condition is not satisfied.
(2) Where this section applies the period of notice to be given by the notice of termination is—
(a) in the case of a termination by the landlord, the period mentioned in column (2) of Table 1 to this section opposite the mention of the duration of the tenancy concerned in column (1) of that Table, and
(b) in the case of a termination by the tenant, the period mentioned in column (2) of Table 2 to this section opposite the mention of the duration of the tenancy concerned in column (1) of that Table.
(3) This section is subject to section 69 .
TABLE 1
Termination by Landlord
Duration of Tenancy Notice Period
(1) (2)
Less than 6 months 28 days
6 or more months but less than 1 year 35 days
1 year or more but less than 2 years 42 days
2 years or more but less than 3 years 56 days
3 years or more but less than 4 years 84 days
4 or more years 112 days
TABLE 2
Termination by Tenant
Duration of Tenancy Notice Period
(1) (2)
Less than 6 months 28 days
6 or more months but less than 1 year 35 days
1 year or more but less than 2 years 42 days
2 or more years 56 days

The table above applies where neither  the landlord nor the tenant is in default.

Section 67 deals with notice periods where the tenant is in default; section 68 deals with the landlord being in default.

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.

Time limit for disputing a notice of termination

Must be referred to PRTB within 28 days of receipt of the notice.

Tenancy Disputes in Residential Letting Agreements

The tenancy tribunal plays an important role in the resolution of tenancy disputes.

The resolution of tenancy disputes in residential letting agreements is governed by Part 6 of the Residential Tenancies Act 2004. The dispute resolution committee of the PRTB replaces the courts.

The main areas of dispute
are

  • deposit retention
  • illegal evictions
  • invalid notices of termination
  • over-holding
  • rent arrears
  • breaches of obligations
  • anti-social behaviour

A dispute may be referred for Mediation, Adjudication, Tribunal Hearing.

If the dispute is not resolved by mediation or adjudication then it will be referred to a Tenancy Tribunal. The PRTB can refer directly to a tribunal if it chooses.

If mediation takes place and is unsuccessful then it must be referred to a tribunal. A party to a determination can also appeal a decision of an adjudicator to a tenancy tribunal.

Time limits

Generally a tenancy dispute must be referred within 28 days of notice being given which gives rise to the dispute or for example the termination of the tenancy.

The PRTB can refuse to deal with a complaint if it is

1. frivolous/vexatious
2. statute barred in the context of court proceedings
3. concerns a dwelling to which the Residential Tenancies act does not apply.

The PRTB will not deal with a reference to it by an unregistered landlord. However if the landlord registers the tenancy within a reasonable time it may then deal with it (if it chooses)

A tenant can always refer a dispute as the obligation to register the tenancy is the landlord’s.

2 stage procedure

PRTB uses a 2 stage procedure to resolve disputes. The first stage is mediation or adjudication.

The second stage is a public hearing by a tenancy tribunal if not resolved at the first stage.

Mediation

A mediator prepares a report and the PRTB makes a determination order within 7 days which contains the terms of the agreement reached by the parties.
If there is no agreement then the tenancy dispute goes to a tenancy tribunal.

Adjudication

An adjudicator reaches a decision him/herself. The adjudicator prepares a report for PRTB and they then issue a determination order.

This order is binding unless appealed by one or both of the parties to a tenanct tribunal within 21 days. There is a form of cross examination in an adjudication but the adjudicator controls the process.

Tenancy tribunal

A tenancy tribunal deals with

1. disputes referred directly by the PRTB
2. disputes where mediation has not worked
3. where the tenancy dispute is the subject of an appeal from a determination of an adjudicator.

Each party is entitled to be heard,  be represented, give evidence and call witnesses at the hearing. Costs of witnesses or professional representation will not generally be awarded.

Determination Order

PRTB makes this order after receiving a report from

1. a mediator
2. an adjudicator
3. a tenancy tribunal

It is binding when issued. A determination order from a tenancy tribunal determination may be appealed to the High Court within 21 days on a point of law only.
Failure to comply is an offence and the PRTB can prosecute people for failing to comply with a determination order or it can apply to the Circuit court for an order forcing compliance.

If the PRTB prosecutes instead  for failure to comply with a determination order the penalties possible are up to 6 months in jail or a fine up to €3,000 or both.

The resolution of tenancy disputes is an important skill for anybody letting residential property. Legal advice should be obtained if you are in doubt about your rights as a landlord or tenant.

Please use the contact form below if you need legal advice in relation to any aspect of residential letting agreements or need a letting agreement drafted.