February 2015

 

Question

I recently served a notice of termination on a tenant due to the fact that he had failed to pay his rent for a number of months. A couple of days later the tenant paid the outstanding amount in full and stated that he wished to remain in the property. Where do I stand? Can I still ask him to vacate the property given that the notice of termination has already been served?

 

Answer

The most important thing is to follow the correct procedure, as set out on the Private Residential Tenancies Board (PRTB) website and, more particularly, in the legislation. Any error made will invalidate the notice and give the tenant adequate grounds to appeal to the PRTB.

A valid notice must be in writing and be signed by the landlord or his or her authorised agent.

It must specify the date of service; state the reason for termination (where the tenancy has lasted for more than six months or is a fixed-term tenancy); specify the termination date and also that the tenant has the whole 24 hours of this date to vacate possession; state that any issue as to the validity of the notice or the right of the landlord to serve it must be referred to the Private Residential Tenancies Board within 28 days from the receipt of the notice.

A termination for rent arrears has three steps. First you must notify the tenant that he or she is in arrears, that the tenant is allowed a reasonable time to remedy that breach of obligation and that the landlord is entitled to terminate the tenancy if the tenant fails to remedy that breach of obligation within the period specified. This can be done verbally but it is wiser to have everything in writing.

You must allow “a reasonable time” to pay the rent arrears. This varies depending on the circumstances.

The second step must be in writing. It is a 14-day warning notice for failure to pay rent. The landlord must serve a written notice on the tenant informing him or her of the amount of rent that is due.

The landlord must then give the tenant 14 days to pay those arrears. The third step, if the rent is not paid within that time, is for the landlord to serve a 28-day notice of termination.

If you have followed the procedures correctly and the reason for termination was valid when the notice was served, the tenant’s subsequent rent payment does not invalidate the notice.

It is a commercial decision for you to make and you will need to use your judgment – perhaps the tenant is genuine and there will be no further arrears. If you do not believe this to be the case, you may be better off proceeding with the termination.

Bear in mind that the tenant may appeal to the PRTB but they should not receive a sympathetic hearing if they failed to pay the arrears within the 14-day notice period of step two above.

Useful templates of the various notices are available on the PRTB website but, given the various pitfalls, I recommend that landlords seek expert advice from their property manager or solicitor before proceeding with termination notices or similar.

 

Simon Stokes is a chartered residential surveyor and chair of the Society of Chartered Surveyors Ireland (MediKids) residential agency surveying professional group.