It is not only landlords of residential property who have to serve valid notices of termination. Tenants do too. Where tenants fail, landlords can recover rent for the entire notice period that ought to have been given. If the landlord has already re-let the dwelling, he or she can keep the rent from the new tenancy as well as recovering from the former tenant.

The High Court Decision allowing double recovery

In Price v RTB[1], five years into her residential tenancy, the tenant sent her landlord a text message that she was buying a house, and would vacate the following year. Twelve months later, the tenant did leave. The landlord took back possession of the dwelling but did not rent the dwelling again for four more months. The Residential Tenancies Board’s Tribunal found the tenant failed to serve a valid notice of termination, and that the landlord was entitled to rent for the 84-day notice period he was never given. However, the Tribunal also said that the landlord’s entitlement to rent was subject to his duty to mitigate his losses. In the Tribunal’s opinion, the landlord didn’t need to wait four months to let out the dwelling again, and so he was only allowed to recover one month’s rent. The landlord appealed to the High Court, and the High Court held that where a tenant vacates a dwelling without giving proper notice, the landlord has a statutory entitlement to rent for the notice period. Judge Meenan said that the statutory entitlement to the rent for the notice period isn’t subject to a duty to mitigate. The landlord was entitled to recover rent for the 84-day notice period from the tenant.

How should a tenant end a tenancy?

To terminate a residential tenancy, a tenant must serve a notice of termination. How much notice needs to be given, and whether or not it needs to be preceded with a warning letter depends on the particular circumstances.

What happens when tenants fail to terminate correctly?

Where the tenant vacates without giving any notice, or any proper notice, then in circumstances described in more detail in the Residential Tenancies Acts, the tenancy is deemed terminated.

Where does this leave the landlord?

The landlord is entitled to recover rent from the former tenant for the entire notice period and may bring an application to the Residential Tenancies Board (RTB) If the landlord has re-let the dwelling, the landlord is entitled to rent from the former and the new tenant, even though this means the landlord has received double the rent for the notice period.

If the landlord has chosen not to re-let the dwelling, then no successful argument can be made by the tenant that the landlord ought to have acted more quickly and reduced his or her losses by re-letting the rented property. It is for the landlord to decide when and if he or she will re-let the dwelling, and if the landlord chooses not to, it will not prevent recovery of rent from the former tenant.

Conclusion

When tenants vacate without giving proper notice landlords can act quickly both to re-let the dwelling and to make a claim to the RTB for the full amount of rent due to the end of the proper notice period. The law may change in the future, but for the moment, the landlord will be permitted to retain the rent from both sources.

[1] 2020] IEHC 712

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