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Occupying a Tenancy beyond the expiry of the notice period

Occupying a tenancy beyond the expiry of the notice period - Overholding

What happens when a tenant continues to occupy the rented dwelling after the expiry of the notice period?

The following is a general note for guidance only and individual circumstances of particular cases may vary.

A tenant is overholding where he/she continues to occupy the rented dwelling on a date after the expiry of the notice period specified in a valid Notice of Termination served by the landlord. In such a situation the tenant is still liable to pay rent to the landlord in respect of the continuing occupation and receipt by the landlord of that rent does not imply a recognition of an ongoing tenancy. Where a landlord, either verbally or in writing, withdraws a Notice of Termination, the tenancy will then continue.

A landlord, who has served a valid Notice of Termination that has not been complied with by the tenant, may refer a dispute to the RTB about the tenant's overholding or failure to comply. For a Notice of Termination to be valid it must comply with section 62 of the Residential Tenancies Act 2004 in particular and all relevant requirements in Part 5 of that Act must be met. A template for drawing up a Notice of Termination is on this website and so also is a leaflet outlining the requirements in relation to the contents of the notice, prior warning where termination is for breach of obligations, notice periods etc. A common mistake made by landlords and tenants terminating a tenancy for failure to comply with the tenancy responsibilities is that they do not provide the prior warning required by the legislation. Termination of a tenancy for such failure must first be preceded by a written prior notification to the other party providing a reasonable opportunity to remedy the breach and advising that, if not remedied within the specified time, the tenancy will be terminated. This prior notification is required except in the case of very serious anti-social behaviour of the sort specified in the legislation as requiring only 7 days notice. Where the tenant failure relates to the payment of rent or other charges, the prior notification to the tenant must specify the amount owed and state that, if not received in full within 14 days from receipt by the tenant of the notification, the tenancy will be terminated.

If a Notice of Termination is invalid (i.e. does not comply with section 62 or does not satisfy the other applicable requirements in the Act relating to the appropriate notice period and other matters that must be specified in the Notice, particularly where a notice is being served by a landlord in respect of a Part 4 tenancy), then there is no obligation on the tenant to comply with it. Furthermore, it is an offence for a landlord to knowingly take any action in reliance on an invalid Notice of Termination that he/she knew or ought to have known was invalid.

In order to resolve any dispute referred to the RTB about tenant overholding, it will be necessary for the validity of the Notice of Termination served by the landlord to be considered.

DISCLAIMER

“Even though care has been taken in the preparation and publication of this guidance note the Private Residential Tenancies Board, its servants or agents assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided in this guidance note and do not accept any liability whatsoever arising from any errors or omissions contained therein".