Gerard Murphy: Notice of Termination under the Residential Tenancies Act 2004

Gerard Murphy

The Residential Tenancies Act 2004 (as amended)

Section 62 of the Act prescribes a number of formalities for a valid Notice of Termination of tenancy. The notice must

• specify “the date of service of it”, and
• specify the “termination date”.

These should be the only two dates on a Notice of Termination. Section 62(1A) requires a landlord to “serve a copy of the notice” on the RTB and this must be done “on the same day on which the notice is served on the tenant”. If the notice “is not so served” on the RTB the subsection provides the notice “shall be invalid”. (This was previously provided for in sections 35 and 39A of the Act).

Section 6 of the Act allows a notice to be served in a number of ways:

(i) by delivering it to the person;
(ii) by leaving it at the address at which the person ordinarily resides, or where an address for service has been furnished at that address;
(iii) by sending it by post in a prepaid letter to the address at which the person ordinarily resides or, where an address for service has been furnished to that address;
(iv) by sending it by electronic means including to an email address, fax number or other electronic contact point. (Electronic service is a new means of service and is expressly permitted from 1 March 2026 onwards).

A lease or tenancy agreement will sometimes include a clause in relation to service of notices by the landlord or the tenant.

Service by post is often the normal means of service of a Notice of Termination. Usually the notice is addressed to the tenant at the address of the rented dwelling. Helpfully, section 25 of the Interpretation Act 2005 provides “the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”. Therefore one can safely assume the notice will be delivered in the ordinary course using the postal system. If the notice is posted to the RTB and the tenant on the same day, one can assume it will be delivered to both parties in the ordinary course of post. If the notice is being posted to the RTB, the landlord must complete a Return Form available on the RTB website.

Section 6(6) of the Residential Tenancies Act provides if a dispute is referred to the RTB concerning a Notice of Termination that if

There is a time limit under section 80 of the Act to refer a dispute concerning a Notice of Termination. If the tenant (or landlord) is in breach of obligation, eg rent arrears, the time limit is 28 days, otherwise it is 90 days. (Interestingly the time limit runs from the “date of receipt” of the notice, not the “date of service”: see below). The Board of the RTB can extend this time limit under section 88.

Section 64 of the Residential Tenancies Act 2004 should also be noted. This section clarifies the meaning of “date of service” to be inserted on the Notice of Termination.

The emphasis in section 64 is on the actions taken by the sender. There should be no ambiguity from the point of view of the sender about the “date of service” to be inserted on the notice, meaning the date the notice was posted by the sender. Importantly, section 64 refers to an action taken “for the purpose of effecting service”; it does not require the sender to ensure that service has to be effected on the recipient on that date. Section 25 of the Interpretation Act may apply in order to determine when service is actually effected, i.e. in the ordinary course of post, but it appears this is only relevant for the purpose of section 80 of the Act (see below).

It seems section 64 is deliberately worded to apply in a situation where a landlord posts a notice “for the purpose of effecting service”. Posting the notice is the only step within the power or control of the sender. It follows, the “date of service” must mean the “date of posting”. Another interpretation would lead to considerable uncertainty and speculation as to when the notice might be delivered in the ordinary course of post (on the tenant and the RTB). Section 64 appears to determine the “date of service” to be inserted on the Notice of Termination from the point of view of the sender. Section 25 of the Interpretation Act is applicable to when delivery to the recipient is deemed to have occurred, which is relevant for the purpose of section 80. These two steps should not be conflated.

The Act prescribes various periods of minimum notice, depending on the circumstances, and whether it is the landlord or the tenant who is serving the notice. It is important to appreciate these are minimum periods of notice, and it is usually safer to allow for additional days’ notice.

Section 61 of the Residential Tenancies Act provides that the period of notice “begins on the day immediately following the date of service of the notice.” This is a sensible provision, providing for various scenarios, including where a notice might be hand delivered to the dwelling in the evening, and of course, where a notice is served by post. Importantly, section 61 does not provide the period of notice begins when the notice is received by the tenant, or the landlord, as the case may be. If the Oireachtas wished to provide for this, it would have said so. This can be contrasted with section 80 of the Act which expressly provides the time limit within which to dispute a Notice of Termination runs “from the date of receipt of that notice”.

Normally one can expect a letter sent by post to arrive the next working day. A landlord who posts a notice on a Saturday or Sunday or a public holiday does so at his peril, as a tenant could argue they did not receive the full minimum period of notice before the tenancy is terminated. If the notice is posted on a regular Monday, Tuesday or Wednesday, one can expect it to be delivered in the ordinary course of post in time. It is up to the sender to take the prudent course of action, and to allow for additional days’ notice beyond the minimum period of notice required.

It is important for the party serving the notice to be able to predict with certainty how much notice should be given when the notice is served. This is because a valid Notice of Termination must specify the correct termination date, which should occur on the expiry of or after the minimum period of notice required. This is particularly relevant where the tenancy is less than six months in duration, and the landlord wishes to terminate such a tenancy before a tenancy of unlimited duration is created by Part 4 of the Act. In those circumstances only, the landlord must give a precise period of 90 days’ notice, and is not allowed to give additional notice (section 65(4)).

The Facts of Argutinski

In Argutinski certain facts did not appear to be in dispute, including that the Notice of Termination stated the date of service was 21 January 2023 (a Saturday). However, the tenant claimed he received the notice by post on 23 January 2023 (a Monday) and the tenant was not cross-examined on this point at the Tribunal hearing. There was no dispute the tenant had received the notice, which appeared to have been delivered on a Monday in the ordinary course of post. It appears from the judgment of the High Court there was an issue as to whether the Notice of Termination had been served on the RTB on the same day it was posted to the tenant. It appears the notice was sent by email to the RTB on 20 January 2023, the day before it was posted to the tenant. Interestingly, the Notice of Termination in that case coincided with the “winter-eviction ban” which was in place for no-fault terminations in 2023. However, it was alleged the tenant was in arrears of rent and therefore not entitled to the benefit of the winter-eviction ban as a result.

The High Court referred to section 25 of the Interpretation Act (cited above). It is not clear what relevance this section had in the context of the proceedings, as there was no dispute the tenant received the notice on Monday 23 January 2023 and the tenant’s evidence was unchallenged on that point. The High Court, however, found at para. 7 “a document is to be treated as having been served either on the date upon which it would be delivered in the ‘ordinary course of post’, or alternatively on the date of actual receipt, if the evidence establishes that this is a different date than the deemed date.” This interpretation leaves room for ambiguity, particularly as to the date the landlord is expected to insert on the notice as “the date of service”.

The High Court confirmed “the discrepancy is significant in that it has implications for compliance with the requirement to serve a copy of the notice upon the Residential Tenancies Board on the same day”. There was some evidence to suggest the notice was sent to the RTB by email the day before it was posted to the Tenant (see above), and it seems there was an argument on this point. It appears the notice was not posted to the RTB. This confusion could have been avoided if the notice had been posted to the RTB on the same day it was posted to the tenant. Section 25 of the Interpretation Act can apply in such a scenario where a document has to be served on two persons simultaneously. If a notice is sent by post to the tenant and the RTB on the exact same day, then normally section 25 can be applied and it can be assumed that both the tenant and the RTB will receive it in the ordinary course of post.

From the sender’s perspective, he is expected to specify the “date of service” on the notice before it is signed and before it is sent by post or otherwise. It seems absurd that the sender should be expected to predict when the notice might actually be delivered or received in the ordinary course of post to two persons simultaneously (the tenant and the RTB). It would be absurd to expect the sender to insert a fictitious date as the date of service, and to assume the notice will be delivered the following day or the next working day. There is also the practical difficulty in attempting to anticipate when two persons will receive a notice by post. Section 5 of the Interpretation Act is designed to remove ambiguities and absurd results and permits an interpretation “that reflects the plain intention of the Oireachtas … where that intention can be ascertained from the Act as a whole.”

If one looks at the Residential Tenancies Act as a whole, in particular section 6, section 61, section 62 and section 64, it appears the Oireachtas intended as much certainty as possible should attach to the date of service appearing on a Notice of Termination, which should accurately reflect the actions of the sender on that date. Section 64, in particular, was designed to avoid a landlord inserting a fictitious date of service, effectively “backdating” the notice which would have the result that the tenant did not receive the full minimum period of notice to which he is entitled. It seems equally desirable that a landlord should not insert a fictitious future date of service which would only give rise to ambiguity. As noted above section 64 refers to the actions within the control of the sender “for the purpose of effecting service”.

The meaning of section 64 appears clear, and to permit an interpretation that if a notice is sent by post, the date of service should be the date the notice is posted. This can be contrasted with section 80 which deliberately uses a different expression, “the date of receipt”, when determining the limitation period to refer a dispute to the RTB concerning the notice. It seems the terms “date of service” and “date of receipt” are not synonymous when interpreting the Residential Tenancies Act as a whole, as each term is used in different sections and in different contexts. The tenant is not prejudiced in any way if the date of service to be inserted on the notice is the date of posting, as the tenant retains his right to dispute the notice within the relevant time period specified in section 80 calculated from “the date of receipt”.

If the landlord cannot predict with certainty the period of notice to give calculated from the date of service, or the date of service to enter on the notice when posting a notice, then the section could not be compatible with the principle of legal certainty. If the “date of service” means the date the notice is posted, this appears to be a more workable interpretation, more likely to have been intended by the Oireachtas, particularly having regard to section 64 of the Act, and the other provisions of the Act interpreted as a whole. This includes the statutory requirement that the notice should be served on the tenant and the RTB on the “same day”.

It should be recalled there are various scenarios where a Notice of Termination is served, including where a landlord is deceased and his or her estate is in the process of being administered for the benefit of family members, in some cases minors or other dependents. A tenancy often has to be terminated on the death of the landlord to raise funds to pay inheritance tax etc. Service of a Notice of Termination should not become administratively burdensome for landlords, tenants, their advisors, and in some cases executors, administrators or trustees.

The “Slip Rule” and the Remedial Notice of Termination

A number of additional points can also be made. Section 64A of the Act provides for a “slip rule” and allows an adjudicator or the Tenancy Tribunal to make a determination that a slip or omission contained in, or which occurred during the service of, the Notice of Termination shall not of itself render the notice invalid, provided:

(a) the slip or omission concerned does not prejudice, in a material respect, the Notice of Termination, and

(b) the Notice of Termination is otherwise in compliance with the Act.

If the Notice of Termination does not accurately specify the actual date of service, this could be remedied by the application of section 64A of the Act where appropriate to do so. Section 66(2A) of the Act also allows an adjudicator or Tenancy Tribunal to direct the landlord to serve a “remedial Notice of Termination” if there was “a defect contained in, or occurring during the service of, the original notice”.

These provisions can encompass various scenarios, including where the notice was not copied to the RTB on the exact same day, but was copied to the RTB around the same time. This could be considered an omission which “occurred during the service of the notice” on the tenant.

It is not unusual for a sender to intend to post a letter on the same day it is dated, but finds the post office is closed and so the letter is posted the following day. These events should not normally render a notice invalid as long as there is a clear explanation for what occurred, particularly where there is no dispute the notice was received by the recipient.

In Argutinski the High Court directed the RTB to cancel the determination order pursuant to section 123. However, the judge did not remit the matter to the Tenancy Tribunal. A better course might have been to remit the matter to the Tribunal. First, the determination order presumably dealt with the issue of rent arrears (in excess of €4,000), which it normally does, and that issue could have been remitted to the Tribunal to deal with appropriately in light of the judgment. Secondly, if the case was remitted, the Tribunal could have decided to apply the “slip” rule or to direct a remedial Notice of Termination to be served if appropriate to do so. At the moment it can take over a year for a statutory appeal to be heard in the High Court. An appeal on a point of law acts as an automatic stay on enforcement of a Determination Order. There are often practical reasons why a case should be remitted to the RTB following the interpretation provided by the High Court on a point of law, even if it is only necessary to clarify part of an order.

Why does the Notice of Termination have to served on the RTB?

Upon receipt of the copy of the notice, the RTB is required to inform the tenant in writing of:-

- The tenant’s right under section 76 to refer a dispute to the RTB,
- The time limits under section 80 to refer such a dispute, and
- A copy of the statement provided under section 135(4)(e) of the Act, including a summary of the rights and obligations of landlords and tenants.

The statement referred to in section 135 is normally provided to the landlord and tenant when a tenancy is registered. Not every tenancy is registered, so it appears this requirement protects tenants whose tenancy has not been registered. A valid Notice of Termination must also inform the tenant of the right to refer a dispute to the RTB concerning the notice anyway. There is also much greater public awareness of the role of the RTB and the rights of landlords and tenants generally than there used to be in the past.

Section 61 could perhaps be amended to provide that a copy of the Notice of Termination has to be “furnished” to the RTB, rather than actually served on the RTB. The provision could be further amended to ensure that provided the notice is copied to the RTB within a certain number of days of the notice being served on the tenant the notice will not be deemed invalid on that basis alone.

Conclusion

Finally, it might be noted that the High Court judgment in Argutinski was interpreting the legislation as enacted before March 2026. A number of amendments were made to the Act which came into force on 1 March 2026. Section 62(1A) is one of those amendments. Therefore, there is no judicial consideration of the current legislation and its interaction with previous provisions of the Act which have not been amended more recently. Although the High Court judgment gave consideration to the interpretation of the “date of service” the judgment indicated this gave rise to a “difficulty” with the notice rather than a “fundamental flaw” (para. 16 of the judgment). There were other reasons why the High Court found the Notice of Termination in that particular case was invalid apart from the issue with the date of service, including the authorisation of the person who signed the notice. The views expressed in relation to the meaning of the date of service appear to have been obiter dicta. Nevertheless, the judgment has created uncertainty where a Notice of Termination is served by post. It should be recalled that even where there is an error in a notice, or the service of the notice, there are provisions in the Act which do not necessarily render the notice automatically invalid.

Gerard Nicholas Murphy BL is a practising barrister who specialised in residential tenancy law