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Tenant requesting permission to occupy after termination

Thursday, October 22, 2020
IMG SOURCE: UPSLASH 

This week's question comes from Maggie:  

I issued a 90-day notice for termination on 5th November. The tenants have asked if they can stay longer as they can’t find a home. I still want to terminate but am flexible with the date of exit. I gave notice in this instance as these are not tenants I want once the RTAA2020 termination rules come into effect. What’s my position if I allow them to stay longer? What process should I follow?

Termination is not eviction. Termination in this instance means revocation of the licence to occupy. If the tenant remains in occupation then the landlord has to follow a separate eviction process to remove them from the property. If the landlord elects not to evict then the tenant is able to remain in occupation. 

In this instance, your tenants' license to occupy expires 5th of November (assuming the notice was served correctly). Assuming you elect not to evict and your tenants remain in occupation, s60 of the Residential Tenancies Act outlines the terms of that occupation. Your tenants' obligations continue as if the tenancy is still ongoing until they leave the property. If you allow the tenants to remain in occupation for over 90 days after terminating without a possession order or if your possession order is over 90 days old then the law assumes that you and the tenants have entered into a new periodic tenancy.

Note that s60 is silent on the landlord’s obligations. Strictly speaking then, you could very take the position that you are thus released from any obligations under the tenancy agreement and the RTA without losing any of your rights (such as being paid rent on time). Seeing that tenancy law and the Tribunal are increasingly pro-tenant, we recommend that you take the more conservative approach of assuming that your obligations continue irrespective of the language in s60. Also, not for nothing, it is the decent thing to do. 

We recommend the following:

  • Keep the original notice (i.e. termination date as is);
  • Maintain a clear written exchange with your tenant outlining the circumstance (i.e. they have yet to find somewhere to move to), your permission for them to continue occupying for a set period of time (say, a week), both parties acknowledge the tenants' obligations subsist throughout the period and that you will regularly review the permission with a view to renew if appropriate; 
  • Revisit your permission and renew if necessary/appropriate making sure that you do not allow the tenant to remain in occupation for over 90 days after termination.

Good luck. We wish you and your tenant all the best!


 

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