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Solicitor Advice: Has your tenant failed to pay his/her rent
First in our new weekly legal advice articles by solicitor Karen Walsh; rent.
I am renting a small cottage on my farm to a tenant for over a year, and in the past few months, the tenant has not paid me any rent. What are my legal options?
Under the Residential Tenancies Act, 2004, tenants are required to pay their rent when it falls due, and their tenancy may be terminated for non-payment of rent.
Where a landlord seeks to terminate a tenancy of duration longer than six months (known as a Part IV tenancy), because the tenant has failed to pay rent, the following three-step procedure must be followed:
Give the tenant notice that they have breached their obligation to pay rent.
This should be done in writing.
Serve a 14-day warning notice for failure to pay rent.
Serve a 28-day notice of termination of the tenancy.
Step 1: Notice of Breach of Obligation
The landlord must notify that:
(i) the tenant is in arrears of rent,
(ii) the tenant is allowed a reasonable time to remedy that breach of obligation,
(iii) the landlord is entitled to terminate the tenancy if the tenant fails to remedy that breach of obligation within the period specified.
The first notification does not need to be in writing, and a landlord can give a tenant verbal notice of the rent arrears, but must ensure that the tenant is aware that failure to pay the rent arrears within a reasonable time will result in the landlord terminating the tenancy. As a landlord may need to give evidence that this has been communicated to the tenant, it may be prudent to give this notice in writing.
Step 2: 14-day Warning Notice for Failure to Pay Rent
Where a tenant falls into arrears, the landlord must serve a written notice on the tenant informing him or her of the amount of rent that is due. The landlord will then give the tenant 14 days to pay those rent arrears.
Step 3: 28-day Notice of Termination of the Tenancy
If the tenant fails to pay the rent due within 14 days of receipt of the written notice at Step 2 above, the landlord may proceed to terminate the tenancy by serving a 28-day notice of termination.
Registered landlords should apply to the Private Residential Tenancies Board (PRTB) for dispute resolution, in cases where the tenant fails to vacate the rental dwelling after the expiry of valid notices of rent arrears and termination.
The PRTB will prioritise such cases for an adjudication hearing, and will make an enforceable determination order requiring the tenant to vacate the property, if validly served notices have expired.
The landlord or other agents must never remove a tenant or their property from a rental dwelling themselves or interfere with their utilities, such as electricity or water supply, as this will be treated as an unlawful termination of tenancy, with potential awards of damages in favour of the tenant.
The Act specifies the precise format for such notices, and PRTB adjudicators will only uphold the validity of notices that are in the correct format. It is essential that all notices are valid. It is essential that you give adequate notice periods, and that they are in the prescribed format. The notices are quite technical, and you should seek professional advice.
It is important that landlords take the following steps prior to referring a Dispute Application to the PRTB, to avoid delays in processing their case.
- Obtain tenant details at commencement of the tenancy; it is vital that landlords seek to obtain the tenant’s PPS number, contact details and other information, such as work details, at the commencement of a tenancy.
- Register your tenancy: landlords cannot take a case to the PRTB unless they have fulfilled their legal requirement to first register their tenancy.
- Contact the community officer; if a tenant is in receipt of rent supplement, but is not passing on the rent, or has cancelled direct payments to the landlord’s account, the landlord should immediately inform the local Community Welfare Officer, to prevent the possibility of misappropriation of funds.
- Maintain detailed records: it is important that landlords provide sufficient documentary evidence to a PRTB adjudicator, to support their rent arrears case — such as rent book, bank statements.
Even when the PRTB reaches a determination, the order can only be enforced through the Circuit Court.
A landlord can do nothing until this process has been completed and, in the meantime, is denied access to their dwelling, and incurs ongoing costs associated with the dwelling.