For the past eight years, I have been leasing a building to a tenant who uses it for a commercial venture. Three years ago, my husband passed away and since then, the tenant has made unrealistic demands and for the past several months has stopped paying rent altogether.
Right from the beginning, our tenant was difficult but we had a contract and my husband was able to deal with him and let him know that he had to stick within the rules. But his lease ended not long after my husband died and since then he has refused to sign a new one unless I agree to ridiculous terms, he has been late with the rent several times, concocted all sorts of accusations and now, most worryingly, he has stopped paying rent altogether and I am going to have to take legal action. It’s very distressing and also putting me in a very difficult financial situation, but he doesn’t seem to care.”
It appears that the lease in this instance would be a periodic tenancy which is terminable by either party by serving a notice to quit. But generally speaking, there are a number of options available to a landlord including; suing the tenant for recovery of the arrears of rent, making a petition to wind up a tenant (company),obtaining a court order for possession of the property or re-entering the property by peaceful means (without a court order).
Subject to complying with statutory notice requirements, where there is a breach of lease, if the landlord serves a forfeiture notice on the tenant at the property and at the tenant’s registered office (if it has one), and the breach is not remedied within the time specified in the notice, then the landlord is entitled to take possession of the premises.
If the landlord is entitled to do this, re-entry must be affected peaceably. Although notice is not required to be served where there has been non-payment of rent, it is prudent to serve notice in all situations.”
Obtaining a possession order is likely to take between 18 to 24 months and as with any court action, it will be a costly process.
The Residential Tenancies Board (RTB) says landlords of residential properties need to be aware of how to deal with unreliable tenants.
If they wish to terminate a tenancy, within the first six months, they can do so without giving a reason to the tenant but must follow correct procedure for serving a notice of termination. If the tenancy exceeds six months, the landlord can only terminate it if the tenant has breached their responsibilities, the property is not suited to the tenant’s needs, the landlord requires the property for personal or family use, wants to sell or if significant refurbishment or use of the property is changing.
Landlords should serve a 14 day warning notice for failure to pay rent. Where a tenant falls into rent arrears the landlord must write to them serving a minimum of 14 days Warning Notice for failure to pay rent.
This notice must state how much is due, make sure the tenant has reasonable time to pay and outline what will happen if they don’t pay.
The law requires that a tenant is given a reasonable time to remedy a breach and while this can be different from case to case, it should be at least of a minimum 14 days.
If this does not remedy the rent arrears, a landlord can serve a 28-day Notice of Termination of the tenancy. And if the tenant fails to pay the rent due in the time period given in the warning notice, the landlord can end the tenancy by serving a 28 day a notice of termination.
Nicola Walsh is partner and head of the property department at Lavelle Solicitors, lavellesolicitors.ie, rtb.ie
