Residential Tenancies Act 2004

F298 [ SCHEDULE 1 ]

Protection for Sub-Tenancies Created out of Part 4 Tenancies

1. In this Schedule—

“head-landlord” means the landlord under the Part 4 tenancy concerned;

“head-tenant” means the tenant under the Part 4 tenancy concerned;

“sub-tenant” means the person in whose favour the sub-tenancy concerned has been created;

“sub-tenancy” means the sub-tenancy referred to in paragraph 2;

Part 4 tenancy” includes a further Part 4 tenancy and references to a Part 4 tenancy continuing in being shall be construed as including references to—

( a) if it occurs, the circumstance in which a further Part 4 tenancy comes into being (in respect of the dwelling concerned) after that Part 4 tenancy and continues in being, and

( b) if it occurs, the circumstance in which a further Part 4 tenancy comes into being (in respect of that dwelling) after the further Part 4 tenancy mentioned in subparagraph (a) and continues in being, and

( c) if it occurs, each further circumstance of the kind mentioned in subparagraph (b).

2. (1) If a sub-tenancy is created out of a Part 4 tenancy with the written consent of the landlord then the following protection applies for the benefit of the sub-tenant.

(2) Without prejudice to paragraphs 5 and 6, that protection is that that sub-tenancy shall (if it would not or might not do so otherwise) continue in being for so long as the Part 4 tenancy continues in being unless it is sooner terminated under the provisions of Part 4 as adapted by this Schedule.

3. Paragraph (a) of, and the Table to, section 34 and sections 35 to 39 apply in relation to the sub-tenancy as they apply in relation to a Part 4 tenancy with the following modifications—

( a) for references in them to a Part 4 tenancy or a tenancy there shall be substituted references to the sub-tenancy,

( b) for references in them to the landlord there shall be substituted references to the head-tenant,

( c) for references in them to the tenant there shall be substituted references to the sub-tenant, and

( d) in paragraph (a) of section 34 for “on one or more of the grounds specified in the Table to this section” there shall be substituted “on one or more of the grounds specified in paragraphs 1, 2 and 4 of the Table to this section”.

4. (1) For so long as the sub-tenancy continues in being the following obligations of the head-landlord shall be owed to the sub-tenant, namely the obligations under paragraphs (a) and (b) of section 12(1) and, for the purpose of this paragraph—

( a) the reference in that paragraph (a) to the tenant shall, for so long as the sub-tenancy continues in being, be construed as a reference to the sub-tenant, and

( b) a dispute between the head-landlord and the sub-tenant with respect to compliance by the head-landlord with either or both of those obligations may be referred under Part 6 to the Board for resolution.

(2) For so long as the sub-tenancy continues in being the following obligations of the sub-tenant shall be owed to the head-landlord, namely the obligations under paragraphs (f) and (g) of section 16 and, for the purpose of this paragraph—

( a) references in those paragraphs to the tenancy shall, for so long as the sub-tenancy continues in being, be construed as references to the sub-tenancy,

( b) references in those paragraphs to the landlord shall, for so long as the sub-tenancy continues in being, be construed as references to the head-landlord, and

( c) a dispute between the sub-tenant and the head-landlord with respect to compliance by the sub-tenant with either or both of those obligations may be referred under Part 6 to the Board for resolution.

(3) Save to the extent provided by the foregoing subparagraphs, nothing in this paragraph affects the obligations owed—

( a) by the head-landlord to the head-tenant (or the head-tenant to the head-landlord), or

( b) by the head-tenant to the sub-tenant (or the sub-tenant to the head-tenant),

under the Part 4 tenancy or the sub-tenancy, as appropriate.

5. In addition to the protection provided by paragraph 2, where the head-landlord serves a notice of termination in respect of the Part 4 tenancy out of which the sub-tenancy has been created and does not include in that notice of termination a requirement to terminate the sub-tenancy, then — if the notice of termination is effective to terminate the Part 4 tenancy — on that termination—

( a) the sub-tenant shall become the tenant of that landlord and the sub-tenancy under which he or she held the dwelling concerned shall be deemed to be converted into that Part 4 tenancy (without prejudice to the notice's effect as against the former head-tenant),

( b) the terms of that Part 4 tenancy under which he or she holds the dwelling concerned shall be those on which he or she held it under the sub-tenancy (subject to their not being inconsistent with this Act) unless he or she and that landlord agree to a variation of them,

( c) the period of that Part 4 tenancy's duration shall, subject to Chapter 3 of Part 4, be the same as that which would have been its period of duration if the notice of termination mentioned in this paragraph had not been served.

6. Subparagraphs (a), (b) and (c) of paragraph 5 also apply if the Part 4 tenancy is validly terminated by the head-tenant and, for this purpose, the relevant references in that paragraph which precede those subparagraphs shall be read accordingly.

7. Paragraphs 5 and 6 do not affect the liabilities (if any) of the sub-tenant to the head-tenant (or of the head-tenant to the sub-tenant) that have arisen by virtue of the sub-tenancy.

8. (1) This paragraph applies where—

( a) the sub-tenant has vacated possession of the dwelling concerned on foot of a notice of termination served under section 34(a) (as adapted by this Schedule),

( b) that notice of termination cited as the reason for the termination the ground specified in paragraph 4 of the Table to section 34 (as so adapted), and

( c) the occupation by the person concerned mentioned in that paragraph does not take place within a reasonable time after the service of the notice or, in circumstances where such a requirement arises, the head-tenant does not comply with the requirement to make the offer referred to in that paragraph.

(2) Where this paragraph applies, the sub-tenant may make a complaint to the Board under Part 6 that, by reason of the matters mentioned in subparagraph (1), he or she has been unjustly deprived of possession of the dwelling concerned by the head-tenant.

(3) An adjudicator or the Tribunal, on the hearing of such a complaint, may make a determination, if the adjudicator or the Tribunal considers it proper to do so, that the head-tenant shall pay to the complainant an amount by way of damages for that deprivation of possession.

(4) For the avoidance of doubt—

( a) this paragraph applies even though the sub-tenant vacated possession of the dwelling only after a dispute in relation to the validity of the notice of termination was finally determined under Part 6 (but in such a case subparagraph (1) has effect as if the clause set out in the Table to this paragraph were substituted for clause (c) of that subparagraph), and

( b) this paragraph is without prejudice to the sub-tenant's right to put in issue, in a dispute in relation to the validity of the notice of termination referred to the Board under Part 6, the bona fides of the intention of the head-tenant to do or, as appropriate, permit to be done the thing mentioned in the notice.

TABLE

( c) the occupation by the person concerned mentioned in that paragraph does not take place within a reasonable time after the dispute in relation to the validity of the notice is finally determined under Part 6 or, in circumstances where such a requirement arises, the head-tenant does not comply with the requirement to make the offer referred to in that paragraph.

Annotations

Amendments:

F298

Substituted (31.05.2019) by Residential Tenancies (Amendment) Act 2019 (14/2019), s. 33, S.I. No. 236 of 2019.