Property

Our tenant refuses to move from our holiday home – now we can’t use it

Property Clinic: Covid-19 has complicated the whole area around fixed-term leases

Tue Sep 15 2020 - 06:00

We own a seaside holiday home in a development that we rent out for nine months each year and use ourselves for the other three. The arrangement has worked well with different tenants over the years with no issues, and we get to decamp there in late summer.

We were looking forward to moving there as usual this year but our tenant – who has been there since last autumn – refused to move, saying that he couldn’t find somewhere else to stay because of the Covid crisis. We made it clear at the beginning of the tenancy that it would be a nine-month lease only. What can we do?

This is a difficult situation and one which has come up quite a bit due to Covid-19. I will assume for the purposes of my answer that the tenant is still in situ and by making it “clear” you mean that you had a fixed-term tenancy agreement in place.

As you may be aware, when Covid-19 first emerged the last government passed the Emergency Measures in the Public Interest (Covid-19) Act 2020. This was signed into law on March 27th, and one of its provisions was that no one could be made to leave their accommodation for the duration of the emergency period.

READ MORE

This ceased to apply from August 2nd. However, the Residential Tenancies and Valuation Act 2020, which was introduced into law on August 1st, amended existing tenancy legislation.

In normal circumstances, if a part 4 tenancy has not come into effect, then you must still serve a valid written notice of termination, allowing a minimum 28-day notice period

These dates are important in understanding your rights, obligations, and potential next steps. While a fixed-term tenancy lasts for a specific amount of time as set out in your tenancy agreement or lease, many landlords mistakenly assume that a fixed-term tenancy automatically gives them the right to terminate the lease on expiry.

However, a “part 4” tenancy also runs alongside a fixed-term tenancy. This means that the tenant shall, after a period of six months, become entitled to the provision of a “part 4” tenancy. A part 4 tenancy allows the tenant to stay in the property for a further 5½ years or 3½ years if the tenancy commenced before December 24th, 2016, subject to certain exceptions for termination.

However, the legislation passed in March effectively “froze” all tenancies and associated timelines. As a result your tenant may have not yet gained the protections afforded under a part 4 tenancy.

The first thing you need to clarify is exactly when the tenancy commenced and, by removing the period March 27th to August 2nd from the calendar, establish when your tenants reach/reached the six months threshold.

In normal circumstances, if a part 4 tenancy has not come into effect, then you must still serve a valid written notice of termination, allowing a minimum 28-day notice period. Normally you cannot end a fixed-term tenancy early unless the tenant is in breach of their obligations. However, for the reasons I outlined previously, this year you may be able terminate the lease on expiry of the “fixed term”.

If a part 4 tenancy has come into effect, then there are only six reasons the tenancy can be terminated. These are:

1. The tenant has breached their responsibilities

2. The property is not suited to the tenant's needs

3. The landlord requires the property for personal or family use

4. The landlord wants to sell the property

5. Significant refurbishment of the property

6. The use of the property is changing

There are strict criteria and guidelines relating to each of these routes but, based on the information you have supplied, it appears as if point 3 describes your situation. You need to provide a statutory declaration with the formal notice of termination stating this. These will include:

The intended occupant’s identity

Their relationship to the landlord

The expected duration of their occupation

If within 12 months of the tenancy being ended you decide to put the property up for rent you must offer the property back to the tenant.

If your tenant is refusing or has refused to move out after you have complied with the above requirements then you should refer the matter to the Residential Tenancies Board (RTB). You can contact the RTB directly via its website on rtb.ie. However, bear in mind that you must have met the required termination notice procedures as I have briefly outlined and which you’ll find in more detail on thei website.

This is a complicated area which has been made more challenging by Covid-19. For example, if you want to issue a termination notice based on the tenant breaching their obligations as regards payment of rent, then this must also be served on the RTB since August 1st. I would suggest getting professional advice to explore your options in more detail.

Enda McGuane is a chartered planning and development surveyor and a member of the Society of Chartered Surveyors Ireland, scsi.ie

LATEST STORIES