Lawful Terminations vs Illegal Evictions
Ending a tenancy is a normal part of a tenancy lifecycle and Landlords are entitled to do so. There is an important distinction between the normal rules for ending a tenancy lawfully and illegal evictions:
- To terminate a tenancy lawfully, a landlord must serve a valid Notice of Termination.
- An unlawful termination, also known as an illegal eviction, may occur where a landlord, through force, intimidation or otherwise (such as cutting off utilities or changing the locks) denies a tenant from accessing a rented dwelling or removes their belongings.
The RTB takes illegal evictions very seriously as it can potentially leave a tenant homeless. Landlords are urged to seek recourse though the RTB rather than taking the law into their own hands. A landlord found by the RTB to have carried out an unlawful termination may be directed to allow the tenant re-entry into the dwelling and/ or be required to pay substantial damages to the tenant depending on the circumstances of the case. Decision makers have discretion to award up to and including €20,000 in damages.
How to serve a valid Notice of Termination on a Tenant
For all Notices of Termination to be deemed valid, they must be copied to the RTB at the same time as it is served on the tenant. Failure to do so means that the Notice of Termination is invalid. Landlords are asked to attach the Notice of Termination to a completed Notice of Termination return form to assist the RTB in linking the Notice to the relevant tenancy.
It can be emailed to NoticeofTermination@rtb.ie or posted to the Residential Tenancies Board, PO Box 47 Clonakilty, Co. Cork.
If posting, the RTB recommends using certified post to ensure landlords have proof of the date the RTB was sent the copy of the Notice of Termination. These documents must be sent to the Residential Tenancies Board on the same day as the notice is served on the tenant. Landlords should retain copies and proof of postage for their records.
By law the notice period starts on the day immediately following the date of service of the Notice of Termination. The date of service, must be stated in the Notice of Termination, is the date the notice is posted, or hand delivered. Example: On Monday, 1 July, a landlord posts a Notice of Termination to the tenant giving 28 days notice that the tenancy is being terminated. 1 July is the date of service. The 28-day notice period, starts on Tuesday, 2 July. It is a good idea for landlords to give some extra days’ notice to tenants to make sure the minimum notice period required in the particular circumstance is covered.
Since 6 July 2022, when a landlord wishes to end a tenancy, there are new notice periods that the landlord must provide a tenant (outlined below). The new notice periods only apply to tenancies that are less than 3 years old. There has been no change to the notice periods for tenancies that are greater than 7 years old. The amount of notice required to end a tenancy depends on how long the tenant has lived in the property. The law sets out minimum notice periods which are different for a landlord and a tenant. The minimum requirement is 90-days for a tenancy that is less than 6 months in duration. Please note that “duration” refers to the total period of time in which a tenant has been living in the dwelling i.e. from the commencement date of the tenancy up to and including the date on which the Notice of Termination is served.
- Less than 6 months - 90 days
- Not less than 6 months but less than one year- 152 days
- Not less than 1 year but less than 7 years - 180 days
- Not less than 7 years but less than 8 years - 196 days
- Not less than 8 years - 224 days
In order for a Notice of Termination to be valid, it must:
- Be copied to the RTB at the same time as it is served on the tenant.
- Be in writing (an email will not suffice).
- Be signed by the landlord or their authorised agent, as appropriate.
- Specify the date of service. This is the date the notice is posted, or hand delivered.
- State the grounds for termination (where the tenancy has lasted for more than 6 months or is a fixed term tenancy).
- Specify the termination date and also that the tenant has the whole of the 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 RTB within the time period permitted.
- From 6 July 2022, there is a requirement for the landlord to send a copy of all Notices of Termination to the RTB on the same day as the notice is served on the tenant. The Notice of Termination will be deemed invalid if this requirement is not met.
Since 6 July 2022, if a tenant has an issue with the validity of the Notice of Termination they have received, a tenant now has 90-days (from the receipt of the notice) to apply for Dispute Resolution with the RTB. This was increased from 28-days.
This does not apply to Notices of Termination served for breach of tenant obligations or rent arrears (click here for the 6-step process that must be followed when a landlord wants to end a tenancy because of rent arrears and the tenant has been renting the property for more than 6 months). Where a breach has occurred, the time period to apply for dispute resolution with the RTB is 28-days.
Note: If you are submitting a Dispute Resolution application for rent arrears or are disputing the validity of a Notice of Termination, you must attach the Notice of Termination to your application.
In some instances, a landlord is required to submit a Statutory Declaration with the Notice of Termination.
Where a landlord intends to sell the property within 9 months of terminating the tenancy, a Statutory Declaration must accompany the Notice of Termination confirming this intention.
Where a landlord requires the property for their own use or for use by a family member, a Statutory Declaration must accompany the Notice of Termination confirming the intended occupant's identity and (if not the landlord) their relationship to the landlord and the expected duration of the occupation. The Statutory Declaration must also confirm that the landlord is required to offer a tenancy to the tenant if the dwelling is vacated within a period of 12 months from the termination date.
Sample Statutory Declarations accompany the Notices of Termination. A Statutory Declaration must take a specific format and must be signed in the presence of a Commissioner for Oaths, Practising Solicitor, Notary Public, or Peace Commissioner. Please note that the Declarant must sign the Statutory Declaration themselves, it cannot be signed on their behalf by an authorised agent.
Student Specific Accommodation
A provider of Student Specific Accommodation is required to serve a valid written Notice of Termination to end a tenancy agreement with a student tenant.
Students have 90-days to refer a dispute to the RTB in relation to the validity of a Notice of Termination that has been served for a reason other than failure to pay rent or other breach of tenant / licensee obligation.
A tenant is overholding where they continue to occupy the property 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 must continue to pay rent to the landlord and receipt by the landlord of that rent does not imply recognition of an ongoing tenancy. Where a landlord, either verbally or in writing, withdraws a Notice of Termination, the tenancy will then continue.
Regardless of the circumstances of a case, a RTB Adjudicator or Tribunal can only order a tenant to vacate a rented dwelling on the expiration of a valid Notice of Termination, which is fully in compliance with the Residential Tenancies Act 2004.
It is important that at all times rent is paid and where it is not, it is a breach of the tenancy agreement. The notice periods detailed on this page do not apply where the Notice of Termination is served for a breach of tenant obligations or rent arrears. Landlords must still serve a warning notice and where the breach has not been remedied, can proceed to serve a 28-day Notice of Termination.
The RTB encourages tenants and landlords to communicate any issues with rent arrears as early as possible to try to rectify the arrears and prevent the ending of the tenancy. If you wish to pursue a case against a tenant who has vacated you can submit a Dispute Resolution Application Form..The landlord can also serve a Notice of Termination for breach of tenants responsibilities. Please note, the RTB prioritises cases where there are rent arrears.
If you are not in possession of a current address for the tenant, please provide a PPS number for the tenant when submitting your application. The RTB will make every effort to source a current contact address for the tenant by searching our own registration database, and other government approved databases but please be aware that if a tenant has moved to a new location it may take a number of weeks before the new address is updated on the data base.
A tenant must continue to pay their rent in full until the tenancy ends and while any disputes are ongoing. Where a dispute has arisen between a tenant and landlord and it has failed to be resolved, a dispute can be referred to the RTB. If a tenant has withheld payment of rent in this instance, they should recommence paying rent and wait for the dispute to be heard.
If the tenant is in receipt of Rent Supplement and is not paying rent then the Community Welfare Service for the area should be contacted to have the supplement suspended until the case is heard.
If a landlord wants to end a tenancy because of rent arrears and the tenant has been renting the property for more than 6 months then the 6-step process set out below must be followed.
The following 6-step process outlines the new rules and requirements established in the Residential Tenancies and Valuation Act 2020, relating to tenancy terminations due to rent arrears. Failure to adhere to these steps will lead to a Notice of Termination being deemed invalid.
Local Authority Assistance - Notice of Termination for Rented Property Being Sold
If you have served/received a Notice of Termination because your rental accommodation is to be sold, your local authority is available to assist you.
Assistance available to you can be found in this Information sheet.
There are strict rules that must be complied with to lawfully terminate a tenancy.
One of the requirements is that the landlord (or tenant if he/she is terminating the tenancy) must serve a valid notice of termination. To be valid the notice of termination must contain the information required by the law. Details of these requirements can be found here.
There are certain circumstances where an RTB adjudicator or tenancy tribunal can overlook minor errors in a notice of termination through the ‘slip rule’ or alternatively they can direct that a remedial notice of termination be served. The ‘slip rule’ and ‘remedial notice rule’ can only be exercised in limited circumstances, where the error does not prejudice the original notice of termination in a material respect and where the notice of termination otherwise complies with the Residential Tenancies Act 2004 (as amended)(the “Act”).
Where an adjudicator or tenancy tribunal direct that a remedial notice may be served, additional rules apply. The landlord or tenant (whoever is terminating the tenancy), must serve the remedial notice within 28 days of the issue of the Determination Order. The notice period that must be given in a remedial notice depends on the circumstances. Where on the date of service of the remedial notice, the notice period in the original notice:
has expired, only 28 days’ notice must be given in the remedial notice that the tenancy is being terminated
has not expired, the period of notice to be given in the remedial notice is the cumulative period of 28 days, plus the period of notice in the original notice of termination that remains unexpired on the date of service of the remedial notice.
Example – slip rule
The landlord served a notice of termination on two tenants. There was a minor typographical error in the first name of one of the tenants. The tenants challenged the validity of the notice of termination and referred a dispute to the RTB.
The adjudicator who heard the dispute was satisfied that the error did not prejudice the notice of termination in a material respect and that the notice was otherwise in compliance with the Act.
The adjudicator utilised the slip rule and determined that the error did not invalidate the notice of termination and the tenant was required to vacate.
Example - remedial notice of termination
A landlord serves a notice providing a tenant with 180 days’ notice.
The landlord serves the notice on 01/12/2020.
The date of service is the date the landlord last had the notice of termination in their control, e.g. the date they posted it or the date they handed it to the tenant.
The notice period starts on the day immediately following the date of service - in this case 02/12/2020.
02/12/2020 plus 180 days is 31/05/2021. This is the correct termination date that must be stated in the notice of termination.
However, the landlord in this case sets the termination date as the 30/05/2021.
The tenant receives the notice and lodges a case with the RTB. The case is heard on 3/05/2021. The adjudicator rules that the notice of termination is invalid as the termination date in the notice should have been 31/05/2021. The adjudicator however determines that the landlord is permitted to serve a remedial notice. The Determination Order with the adjudicator’s findings issues on 7/05/2021.
The landlord must serve the remedial notice within 28 days of the issue of the Determination Order. The landlord must give the tenant 28 days’ notice that the tenancy is terminating plus the period of notice in the original notice of termination that remains unexpired on the date of service of the remedial notice.
As the landlord served the remedial notice on 10/05/2021 and the original termination date was, 31/05/2021, the unexpired period of notice on the date of service of the remedial notice is 22 days. The landlord must therefore give the tenant 50 days’ notice in the remedial notice of termination that the tenancy is terminating (that is the 28 days required plus the 22 days of the unexpired period of notice from the original notice of termination). As the notice period begins on the day immediately following the date of service of the notice of termination, the new termination date that must be stated in the remedial notice of termination is therefore 30 June 2021.