As a result of the Covid-19 Emergency Measures, there have been numerous difficulties in the rental market. It is difficult for both tenants and property owners and accurate guidance and clear direction is needed for both parties. The Residential Tenancies Act as amended places rights and obligations on both parties to a tenancy. Below are queries raised around student tenancies.
1. Fixed Term Tenancy – House Near College – Part 4 Tenancy
Four students agreed a fixed term tenancy for one year 1st September 2019, they are jointly and severally liable for the rent. The College closed and the students were able to continue with their studies on-line for the balance of the term. All four of the students went home in March 2020. They left their personal affects in the dwelling where they still remain. The keys have not been returned. The rent due on April 1st 2020 was not paid. No further rent has been paid since. The students do not wish to pay the rent as they are not living there.
Our understanding in this situation
- A fixed term lease is in place until 31st August 2020.
- The tenants are contractually obliged to pay the rent until the end of the fixed term lease.
- No assignment has been undertaken.
- The landlord does not have possession of the property.
- The landlord cannot attempt to re-let to mitigate the loss of rent.
What can be done
- The tenants can assign their right to another party and remove their obligation in the tenancy with the written consent of the landlord.
- The tenants can sublet the property with the landlord’s consent to the end of the lease agreement; they would still be liable for the rent and remain responsible for the other obligations associated with the lease. However, they should be receiving the rent from the sublet.
- The tenants can remove their items from the property, clean and return keys, and the landlord can attempt to mitigate the loss by re-letting the property. If the loss cannot be mitigated the tenants may remain responsible for the loss until the end of the fixed term contract.
- The tenants and landlord may agree a compromise. The landlord is given possession of the property as quickly as possible to try mitigate the loss. The April, May and June Rent have not been paid. The landlord is holding a deposit. Agreement can be negotiated between both parties to address some of the rent, possibly agreeing the retention of the deposit. Both parties will take a loss in this situation.
If no solution can be agreed, a dispute can be raised with the RTB, which can be dealt with by either mediation or adjudication.
2. Periodic Tenancy – Apartment – Cork
Three students took a tenancy in a house in Cork on a periodic tenancy (month to month basis) in October 2019. No fixed term was agreed. They are jointly and severally liable for the rent. Mid-March, two of the students left the property taking all their belongings, served a 28-day notice of termination on the landlord and left their keys. The third student remained in the property as he had a part-time job in a supermarket but only paid a third of the rent.
Our Understanding of the Situation
- It is not a fixed term tenancy and notice can be served to end the tenancy.
- The tenancy was not terminated.
- No assignment was carried out.
- The three tenants continue to be liable for the rent.
- The full rent is due and payable until the tenancy is validly terminated.
What can be done.
- The tenancy can be terminated by the tenants giving the required notice and the last tenant moves out. The rent should be paid by all parties to the end of the tenancy and the deposit returned assuming no damage above normal wear and tear. At the end of the tenancy both parties can agree a lesser amount of notice.
- The landlord can terminate the tenancy once the Covid-19 emergency legislation is repealed on the basis that it is the first six months of the tenancy(The emergency period is ignored in this case) and agree a repayment schedule with tenants for rent outstanding. If no agreement can be negotiated, a case may be taken to the RTB.
- The landlord can terminate the tenancy based on the rent arrears breach once the emergency period is over.
- The two tenants that moved out can assign their rights and obligations to other tenants with the landlord’s consent and end their obligation to the tenancy. They would still be responsible to pay the rent for the period up to the assignment.
- The landlord is free to allow the remaining tenant source new tenants for the two remaining rooms and agree an element of debt forgiveness. (Due diligence should be carried out on new tenants)
Both sides can discuss the situation and negotiate a solution that works for them
Extracts from the RTB’s Frequently Asked Questions – Covid-19 Emergency Legislation
STUDENT SPECIFIC ACCOMMODATION
Do the emergency measures apply to student specific accommodation provided by public authorities and private providers?
Yes, the emergency legislation extends to all tenancies and student licences under the Residential
Tenancies Act 2004, as amended.
Many students within student specific accommodation have pre-paid their rent, are they entitled to a refund if they left their tenancy early?
A lease should state the total rent to be paid by a tenant, and when it is due to be paid; the rights and responsibilities of the landlord; and the rights and responsibilities of the tenant including what, if any, penalties a tenant would face if they chose to end the tenancy before the end of the lease.
A fixed term tenancy is a tenancy that lasts for a specific amount of time, for example a 9-month lease is signed with a start date and end date. Tenants must ensure that they intend to stay in the accommodation for the amount of time that they sign up to or they could face costs such as loss of pre-paid rent and/or part or all of their deposit.
The RTB encourages all landlords and tenants to review their individual tenancy agreements to ensure that they are aware of the rules around ending their specific tenancy early and what penalties may apply.
If a tenant is unable to remain in their tenancy for the duration of their tenancy agreement, they should firstly speak with their landlord and explain the situation and see if an amicable resolution can be found. If a resolution cannot be found and the tenant leaves early, a landlord must also aim to mitigate their losses and find a replacement for the tenant to ensure that they face as few costs as possible.
If a replacement can be found, the outgoing tenant may then only face a partial loss of pre-paid rent or a partial loss of their deposit; however, if a replacement cannot be found, there could be bigger losses facing the tenant to cover what was due to the landlord for the time remaining within the tenancy agreement.
Where an issue arises within a tenancy, the RTB encourages tenants and landlords to discuss problems promptly, keep lines of communication open and respect each other’s positions. If the problem cannot be resolved; registered landlords and all tenants can apply to the RTB for dispute resolution. More information on the RTB Dispute Resolution services available during the emergency period can be found at the end of this document.
Are Students who are due to pay rent in student specific accommodation still required to pay?
Tenants must pay their rent in full and on time. If the tenant remains living in the tenancy, then the rent must be paid. This applies even where a dispute case has been lodged with the RTB.
If a tenant’s circumstances have changed and they had to prematurely leave the tenancy and break their tenancy agreement, the landlord may be entitled to retain part or all of the tenant’s deposit and/or could potentially lodge a case for any further losses they feel they incurred to the RTB. All landlords must show attempts to mitigate their loss.
The RTB would encourage all landlords and tenants to review their tenancy agreements in detail, to communicate with each other as soon as an issue arises and to avail of the free RTB Telephone Mediation service, if required.
Are students who have pre-paid their rent in the general rental market or privately-owned student accommodation entitled to a refund where they have had to end their tenancies early?
There is a distinct difference between tenants in the general rental market and students living in student specific accommodation. Tenants living in student specific accommodation may not have any option to break out of their lease early whereas a tenant living in the general rental market can end a fixed-term tenancy by getting permission from the landlord to assign or sublet the tenancy. If the landlord agrees, the tenant can get a replacement for themselves and leave. If the landlord refuses the offer, the tenant can then serve a valid written notice of termination (this does not apply to Approved Housing Bodies & student specific accommodation).
Therefore, once the tenant follows the steps as set out above and validly terminates the tenancy, they would be entitled to a return of any pre-paid rent from the date which they left the tenancy.
Are students required to pay rent in the general rental market or privately-owned student accommodation?
Yes, tenants must pay their rent in full and on time. If the tenant remains living in the tenancy, then the rent must be paid. This applies even where a dispute case has been lodged to the RTB.
The RTB encourages all landlords and tenants to review their individual tenancy agreements in order to ensure that they are aware of the rules around ending their specific tenancy early and what penalties may apply.
Where an issue arises within a tenancy, the RTB encourages tenants and landlords to discuss problems promptly, keep lines of communication open and respect each other’s positions. If the problem cannot be resolved registered landlords and all tenants can apply to the RTB for dispute resolution.