Q We own a three-bed house that we rent out for investment purposes. The tenants have sublet a room in our property without our permission. They mentioned to us that someone was interested in renting the spare room and that they would contact us if that was the case, but we never heard from them again on the matter. Now they have given us notice of their intention to vacate and I'm wondering whether I can ask them for the deposit that should have been given to me for this new person renting the room?
We had a clause in the lease that indicated that subletting was not permitted. Appreciate your advice.
Letting agreements can and frequently do end up in dispute. Due to the actions of your tenants, you are quite right to feel aggrieved. Your tenants have broken the terms of the lease, which explicitly stated subletting was not permitted.
The fact they mentioned this to you and assuming you did not state you would not allow a subletting did, in my opinion, mitigate this slightly. But as they stated, in the event a subletting was to have taken place, they would discuss this with you, which they failed to do.
You mention the tenants have given notice of their intention to vacate. This brings about a number of issues.
First and foremost, have the tenants honoured their obligations under the lease in terms of payment of the rent, seeing out the duration of the lease, left your property in a good condition, and made arrangements to discharge any utility charges that they have incurred? In the event any of these have not been fully honoured, you may be entitled to keep the initial deposit. So it would be advisable to inspect the property with your tenants as soon as possible.
Once your tenants vacate, assuming the sub-tenant remains in occupation, this is no longer a sub-tenancy but becomes a normal tenancy between you as landlord and them as tenants. They appear to be subletting a single room, and as this is a three-bedroom house it suggests they may not be able to afford to rent the entire property and should either seek new co-tenants to share the letting or possibly alternative more affordable/appropriate accommodation.
Again, this is something you should discuss directly with them as soon as possible. Any new letting will have to be registered with the Residential Tenancies Board once agreed and fully signed.
In terms of the deposit, I take the view the contractual letting was between you and your tenant.
Assuming they requested a deposit from the sub tenant then I believe you are entitled to ask for that. But in doing so you are effectively consenting to a new tenancy which you will want to consider very carefully as this will convey rights to the current sub-tenant who is in occupation in breach of the lease and without your consent.
In the event that a dispute arises and it cannot be agreed, you can have this heard and settled by application to the Residential Tenancies Board. Gerard O’Toole is a chartered valuation surveyor and a member of the Society of Chartered Surveyors Ireland, scsi.ie
Do I have case over planning breach?
Q My neighbour has planning permission for a small commercial enterprise on his farm but in recent years this enterprise appears to be growing and expanding into other areas of the farm. I have made initial enquiries with the planning authority and they have stated that this property owner does have the required planning permission on the land.
My response was that the original planning permission was granted for a particular part of the farm as outlined in the application but now this has grown substantially into other areas of the farm. Can you please inform me if this sounds accurate with regard to planning law? Does an original grant of planning extend to the entire farm when granted or is it just confined to the developments as outlined in the maps? For clarity, the recent expansion relates to an activity rather than development.
A While not legally defined nor referred to in planning legislation, the concerns you have with your neighbour’s activities are commonly referred to as “intensification of use”. It is possible for an intensification of use to require planning permission.
However, this is one of the more challenging and ambiguous areas of planning legislation, as it can be difficult to prove and the intensification generally needs to be substantial. The first thing you need to consider is what requires planning permission. All development requires permission unless they are exempted development. Under the Planning and Development Act 2000, Development is defined as “the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land”.
In your particular case, it is possible that the increased level of activity, or a change in nature of the activity, could be deemed a “material change of use”, which if not authorised, may require planning permission. When assessing whether there is a material change of use of a property, it is necessary to carefully review the planning permission granted for a particular development and all conditions attached. While the red outline that delineates the physical area of a development in a planning application is relevant, the areas where the enterprise has grown and expanded into need to be carefully considered. In particular, the activities in these areas would need to be of a “substantial nature” for them to amount to a material change of use. Issues to consider in this regard are: the nature, level and physical extent of the activities, increased levels of traffic and parking, increased levels of personnel, general disturbance including noise etc.
If you feel you have a case that warrants consideration, you are entitled to make a written complaint to the local planning authority, who must consider your case. Your complaint should be as specific and detailed as possible and include the effects the development has on you and the surrounding environment.
If the planning authority feels the case is one of substance, they are obliged to write a warning letter to the developer within six weeks of the complaint. Depending on the response, the planning authority may then pursue enforcement action. Finally, there is a time limit of seven years within which a local authority must take enforcement action against unauthorised development. After this time, while the development may remain illegal, the authority cannot take action against the developer, unless it relates to non-compliance of a planning condition concerning the use of land.
Andrew O’Gorman is a chartered building surveyor and members of the Society of Chartered Surveyors Ireland, scsi.ie
