Landlord & Tenant Flashcards
What is alienation?
Alienation’ is the right granted in a lease for a tenant to assign, sublet, or share occupation of their property.
Is alienation of part usually permitted?
In commercial leases - yes. Residential - no.
Tell me about how you would summarise a lease and what terms you would be looking out for.
A Tenancy Agreement typically contains the following items:
Names and contact information for the tenant and landlord/property manager
The length of the tenancy agreement; either a fixed period or a recurring time interval
The amount of the rent payment, and when it must be submitted
Rights and responsibilities of both the tenant and landlord
Additional options such as parking, or items included with the rent (utilities, internet, etc.)
Any security deposits which must be paid before moving into the living space
What is an arbitrator?
An RTB arbitrator is an independent decision-maker who conducts and manages the hearing. They are responsible for managing time and communication during the hearing. An arbitrator ensures that only issues relevant to the Application for Dispute Resolution are addressed and then makes an impartial decision.
How does an arbitrator and an expert’s roles differ?
- An arbitrator is governed by the Arbitration Act 2010 whereas an independent expert has no judicial government
- An arbitrator’s decision is solely based upon the evidence submitted by both parties whereas an independent expert can use their own judgement and experience to make the decision.
- An arbitrator usually gives a reasoned determination, whereas an independent expert gives an unreasoned determination
- An independent expert can be sued whereas an arbitrator cannot.
What is the difference between a lease and a licence?
Differences:
A licence does not transfer any interest in the land to the licensee. A lease does.
A licence is a ‘mere permission’ to use the premises.
A lease confers statutory rights and protections whereas a licence does not.
Should a dispute arise as to whether a user of a premises has a licence or a lease, a Court will look at what the parties intended, not what they say afterwards. So, if an agreement has all the requirements of a tenancy/lease, the parties cannot insist afterwards that they only created a license. A Court will deem it a lease.
When were upward only Rent Reviews banned?
Land and Conveyancing (Amendment) Act 2009 – effective 28 Feb 2010
Does a Landlord need a reason to terminate a tenancy?
In a fixed term lease the Landlord has to give a reason.
In a part 4 lease - If a tenancy has lasted less than 6 months, the landlord does not have to give a ground as to why the tenancy is ending. If a tenancy lasts 6 months or more, the landlord must give a reason as to why.
What are the 6 valid termination reasons?
- The tenant has breached their responsibilities, or not paid their rent (written notice and over 28 days late).
- The property is not suited to tenant’s needs (give written notice)
- The landlord requires the property for personal or family use (must include Stat Declaration noting 1) occupants identity 2) relationship to landlord 4) expected duration fo tenancy. LL must offer property back to tenant if it becomes available within 12 months.)
- The landlord is selling the property. (within 9 months. statutory declaration required).
- Substantial refurbishment of the property (LL must state in PP is required, name of contractor, dates of intended works, duration of works, NTQ must have a cert from registered professional of H&S threat).
- Change of use. (e.g. resi to commercial, NTQ include statement of intended use, PP, name of contractor, dates, duration)
What is statutory periodic tenancy?
A statutory periodic tenancy occurs when an assured shorthold tenancy comes to the end of its fixed term and the tenant stays at the property without renewing the contract. If the tenant continues to pay rent and it is accepted by the landlord, the tenancy will continue on a periodic, rolling basis.
What is a covenant/ obligation?
Leasehold covenants may contain both negative and positive obligations. They are enforced by the landlord and tenant for the time being of land
What is quiet enjoyment?
You are entitled to quiet and exclusive enjoyment of your home. If noise from other tenants or neighbours is disturbing you, ask them to stop and also inform your landlord. If this does not work, you can make a formal complaint. You are entitled to certain minimum standards of accommodation.
What covenants/obligations would a tenant have to adhere to in a residential tenancy?
Tenants obligations: (as per RTB)
1) pay rent on time
2) Keep the property in good order and tell the landlord when repairs are needed.
3) Keep a record of all repairs, payments (including receipts) and dealings with your landlord.
4) Make sure that you do not damage the property, for example by drying clothes inside without proper ventilation (as this may cause dampness).
5) Allow the landlord to carry out inspections of the property at reasonable intervals on agreed dates and times
6) Let the landlord know who is living in the property.
7) Behave responsibly and not engage in anti-social behaviour.
8) Give proper notice when you plan to end the tenancy.
9) Comply with the terms of the tenancy agreement, whether written or verbal.
10) Make sure you do not perform any hazardous acts that would affect your landlord’s insurance premium on the property.
What covenants/obligations would a landlord have to adhere to in a residential tenancy?
Landlord obligations: (as per RTB)
1) Register your tenancy within one month of the start of the tenancy.
2) Provide a rent book and receipts of payment.
3) All landlords must pay tax on any rental income received.
4) Maintain the property to the standard that it was in at the start of the tenancy.
5) Reimburse tenants for any repairs they carried out as a result of a landlords inability to do so within a reasonable time.
6) Insure the property
7) Pay property taxes and other charges.
8) Provide the tenants with your contact details (or agent)
9) Give the tenant a written notice of termination for the tenancy
10) Return the tenants deposit promptly at the end of the tenancy, unless lawfully withheld.
11) Give the tenants notice of inspections
12) Make sure there is access to refuse bins
13) Not discriminate on the 9 grounds.
14) Provide a BER for the property
What is voluntary waste?
The wilful destruction or carrying away of something attached to property. E.g. tenant taking appliances.
What is permissive waste?
In property law, this refers to harm of a piece of property, caused by a tenant’s neglect of the property. Examples of permissive neglect include the tenant not doing maintenance on the property.
What is meant by reversion?
Reversionary Rent and Yield refers to what the new income/yield will be after the rent reverts to market rent. Remember it could be higher or lower. A building below market rent often occurs when the market has gone up significantly and the tenant has benefited from a long-term lease that hasn’t had a market review.
What is meant by a peppercorn rent?
A token or nominal rent (eg €1.00) paid by way of consideration in order to form a legally binding lease contract and create a legal relationship between landlord and tenant. Used where the rent is essentially rent free.
What is a Schedule of Condition? When might you use one?
The Schedule of Condition is a complete record of the condition of the property on a particular date that can be used as a benchmark against which its condition can be assessed in the future and any changes identified. It is a factual report of the property carried out at the beginning of the tenancy.
what was the main change of the Residential Tenancies Amendment Act 2015?
The frequency of rent reviews was changed from one to two years.
What is a notice of termination?
If a landlord wants the tenant to leave a property, they must serve a valid written notice of termination. The notice can be posted/ handed in person/ left at your address.
What is a valid notice of termination?
A valid notice of termination must:
Be in writing (an email is not sufficient)
Specify the date of the notice itself
Be signed by the landlord (or an authorised agent)
Specify the date of termination of the tenancy
State that you have the whole 24 hours of the termination date to vacate the property
State the reason for termination, if a tenancy has lasted more than 6 months or is a fixed-term tenancy.
State that any issue as to the validity of the notice or the right of the landlord to serve it must be referred to the RTB within 28 days from the receipt of the notice.
The landlord must provide additional details in certain situations and, in some cases, a statutory declaration.
- The RTB provides sample notices of termination, giving the details required in each situation.
- 1st Day of NOT is the day after the notice is served.
- If tenancy lasted over 6 months, Landlord must complete a Notice of Termination Return Form, attach NOT, and send to RTB within 1 month of end date.
PRS Legislation
Residential Tenancies (Amendment) Act 2015 Frequency of rent reviews changed from 1 to two years
Planning and Development (Housing) & Residential Tenancies Act 2016
Rent pressure zones
Rent cap at 4%
Design Standards for New Apts March 2018
1. BTR now an asset class
2. No maximum restriction on number of apts per floor per core
3. No set dwelling mix requirements eg a scheme could be all one beds
4. Minimum apt sized reduced
5. Car parking requirements reduced
6. Shared accommodation possible
Previous to this, apartment blocks, even if they were built with the standard PRS amenities, were built under the BTS guidelines and were therefore not categorised as BTR. BTR assumes a hold of 15 years and may not be sold individually. An investor may, however, sell the entire scheme within this timeframe.
A lot of the ‘PRS’ stock that has traded thus far was sold on a Forward Fund basis, having been constructed on a BTS planning. The developers have capitalised on the increased weight of capital chasing PRS investments as their sale values, in some case are outstripping the break up value.
What is the significance of the Landlord and Tenant Act 1860?
Deasy’s Act – outlined that a lease was a contract and any lease over a year long had to be in writing. It determines whether a relationship is one of landlord and tenant. If a building burns to the ground the lease burns with it.
What is enfranchisement?
The phrase “enfranchisement” is used to cover three rights which tenants potentially have. They are:
1) The right of a tenant of a house to acquire the freehold;
2) The right of tenants in a block of flats together to buy the freehold (this is called “collective enfranchisement”); and
3) The right of a tenant of an apt to extend the lease of his flat.
What is forfeiture?
Forfeiture – a tenancy may come to an end as a result of forfeiture whereby the landlord becomes entitled to re-enter a premises as a result of a tenant breach of one or more lease terms.
Where you are acting on behalf of the freeholder or head landlord with a reversionary interest, you should have procedures in place to guard against the possibility of a waiver of the right of forfeiture. Legal advice should be
taken, if necessary.
Tell me about a recent political development affecting residential tenancies.
Nothing stays the same for long in the rental sector!!
1) Greater control of rent increases and greater security of tenure for tenants was part of the Government Housing for All document.
2) Covid related changes to legislation during the pandemic created temporary and permanent changes to the Residential Tenancies Act on covid related terminations (extended to 90 days notice, rather than 28), and rent arrears. RTA 2020 did NOT affect rules around setting rent for non covid affected tenancies, these remained the same. Tenancies affected by covid were not allowed to receive rent increases.
3) The Residential Tenancies (No.2) Act 2021 (RTA(2) 2021) was enacted on 9 July 2021 and introduces permanent changes related to RPZs, rent reviews, deposits and Student Specific Accommodation.
4) Residential Tenancies (Amendment) Act 2021, had introduced 1) 2% rent cap and 2) security of tenure extended.
How might a tenant be in breach of their lease if they let their flat for short-term Airbnb-type lets?
- House rules commonly do not allow short term lets.
- Lease agreeements often do not allow short term lets.
- Short term holiday lets do not come under the remit of the RTB.
- Airbnb’s in RPZ areas require planning permission for change of use. It is unlikely that planning permission will be granted in areas of low rental stock supply (RPZ’s).
In the O’Connor Murphy lease, we do not specify that tenants cannot do short term lets. We cover in the clause on subletting.
“If the Tenant proposes to create a sub tenancy, the Tenant is obliged to inform the person with whom he is intending to create the agreement that the nature of the tenancy is a sub-tenancy. The Tenant must obtain the Landlords prior written consent (such consent not to be unreasonably withheld) before entering into a sub-tenancy agreement.”
Where do you find the minimum standards?
The minimum standards are set out in the Housing (Standards for Rented Houses) Regulations 2019.
What is the role of the Residential Tenancies Board?
The Residential Tenancies Board was set up under the Residential Tenancies Act 2004. … The RTB’s main functions are to:
1) Maintain a register of private residential tenancies, tenancies of approved housing bodies and student-specific accommodation tenancies.
2) Provide a dispute resolution service for tenants and landlords.
3) Carry out research into the private rented sector
4) Provide policy advice to the Government on the private rented sector
What was the impact of the Residential Tenancies (Amendment) Act 2021?
Residential Tenancies (Amendment) Act 2021 came to effect in December 2021.
- Rent capped at 2% in RPZ’s or inflation as recorded by HICP.
- Security of tenure extended: Tenancies of Unlimited Duration. Previously after 6 years of a Part 4 tenancy, the landlord could end the tenancy without reason. RTA Amendment 2021 removes the landlords right to end without reason after 6 years, effective from June 22.
What is a RPZ?
An RPZ is an area where the rent increases have been at 7% or more in four of the previous 6 quarters of the RTB rent index, and where rent is above the national average.
Rent cannot be above the local market rent, 3 comparables are required.
All RPZ’s are now extended to Dec 2024.
Rent reviews every 24 months.
Rent increases are capped at 2% or inflation as per HICP (whichever is lower).
Are there any exemptions to the rent cap in RPZ’s?
1) If a property is new to the rental market and has not been rented at any time in the previous 2 years, rents may be set at the market rent and the caps do not apply.
2) Properties that have undergone a “substantial change” in accordance with the strict criteria set out in the legislation are also exempt from the rent caps.
Importantly, landlords seeking to rely on an RPZ exemption are now required by law to submit notification of this to the
RTB within one month of the new rent amount being set. The RPZ prescribed ExemptionForm located on www.rtb.ie must
be used when notifying the RTB.
Lancaster Gate - how did investors overcome the low rental yields?
If a property is new to the rental market and has not been rented at any time in the previous 2 years, rents may be set at the market rent and the caps do not apply.
Explain the key tenancy legislation in Ireland.
- The Residential Tenancies Act 2004 (as amended 2015/2016/2019/2020/2021)
- The Planning and Development, and Residential Tenancies Act 2020
- The Housing (Standards for Rented Houses) Regulations 2019
Residential Tenancies Act 2004
Scope - private and public rentals, student accomm.
Tenancies Database - Annual Registration required by landlords
Planning permission required for short term lettings and licences in Rent Pressure Zones
Rent restrictions in Rent Pressure Zones 2% or rate of inflation.
RTB powers of investigation for improper conduct.
RTB powers of sanction for improper conduct.
Security of tenure - Part 4 rights. 6 grounds to terminate. 6 years has been extended to unlimited timeframe.
Notices of termination may be remedied and landlord notice periods are extended.
RTB must publish its determination orders.
RTB to publish report on rental figures.
Does the RTB investigate complaints?
As per the RTA 2019 amendment, the Residential Tenancies Board (“RTB”) may of its own volition or on foot of a complaint, commence an investigation in respect of possible improper conduct by a landlordThe RTB must investigate a complaint unless it is satisfied that:
insufficient information has been provided;
the complaint does not relate to improper conduct;
the complaint is frivolous or vexatious, without substance or foundation or has not been made in good faith; or
the complaint should be resolved under the dispute resolution provisions of Part 6 of the 2004 Act.
Importantly, where a complaint is withdrawn, the RTB may still investigate the conduct complained of on the basis of its independent powers of investigation.
