Have you ever had a tenant in under a fixed term tenancy (e.g. 12 months), and he or she calls you up to give notice to leave before the expiration of the fixed term ? Tenants who claim that they are entitled to do so under the legislation are misinformed. Many tenants who enter into a fixed term tenancy are under the misconception that they can give notice to bring the tenancy to an end before the expiration of the fixed term. This is because the Residential Tenancies Act 2004, specifically section 66, is unclear in that it doesn’t spell out that a fixed term tenancy will override this notice period. Under a fixed term tenancy the tenant can only leave before the expiration of the fixed term if specific circumstances arise, for example if the landlord has materially breached his obligations under the lease, or, if the tenant offers to assign or sub-let the property (which will involve a lot of work for the tenant). If there is a fixed term in play, the tenant cannot, as many tenants believe, provide the requisite notice contained in section 66 because he simply feels like moving on or can no longer afford the rent.
landlordsoluitions.ie consider that the announcement by a tenant that they are leaving before the end of a fixed term is grounds for deposit retention in order to make good the cost of re-letting plus compensation for the vacancy period. This is subject always to the landlord taking appropriate steps to mitigate his loss by re-letting the property as soon as possible. Note that at a PRTB hearing where such matters are disputed, the landlord will enhance his or her case by production of evidence of all efforts made to quickly re-let the property e.g. copy of newspaper ads, letters of engagement with letting agents etc.
landlordsolutions.ie has had experience where letting agents have incorrectly advised tenants that they were entitled to breach a fixed term tenancy purely by providing the notice period set out in section 66. This is simply shocking and is costing landlords thousands in unpaid rent.
This document contains a general summary of recent developments and is not a definitive statement of the law. Specific legal advice must be obtained before taking action based on the summary set out herein and landlordsolutions.ie take no responsibility for any loss or damage caused in reliance of the information herein.
