Landlords Bible : What are a landlords rights if a tenant abandons a rental property

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TENANT ABANDONMENT

What is Abandonment?

Abandonment is the voluntary surrender of a legal right, for example, an interest in land or property - a tenancy.

By virtue of S5(2) Housing Act 1988 a tenancy can only be bought to an end by the landlord obtaining a court possession order or by a surrender or similar act by the tenant.

If the tenant appears to have abandoned the landlord’s residential investment property, this can put the landlord in a difficult position. This is because if the tenancy has not been surrendered or bought to an end, the tenant may return and accuse the landlord of unlawful eviction.

The issue of tenant abandonment is further complicated by the fact that tenants sometimes leave their accommodation unoccupied for long periods. In this situation it may either breach the terms of the landlords insurance or increase the premium due to the added risk to the insurer of covering an empty buy-to-let residential investment property.

A landlord’s options

The difficulty for a landlord is the legal ambiguity surrounding the concept of a tenants abandonment. For instance a tenant may disappear and stop paying rent. It is often difficult or impossible particularly with an apartment to judge from an external inspection whether a tenant has left a property. If a tenant has left some of their possessions then a Court will often interpret that as “demonstrating an intention to return” and that the tenant intends the tenancy to continue. Should a landlord make a wrong decision in assuming that the tenant has left and then attempts to re-let the property only for the tenant to return then the landlord could be sued for damages.

PROPERTY HAWK WARNING

There have been a number of cases where so called professional landlords have faked abandonment to deliberately entice or entrap a landlord into carrying out of what the courts will interpret as unlawful eviction.

Under S1 (2) Protection from eviction act 1977 it is an offence for any person to unlawfully deprive or attempt to deprive a “Residential Occupier” of the premises or any part thereof. There is a Statutory Defence if a landlord can prove that they believed the tenant have ceased to reside in the premises. The weakness for the landlord is that it is always a matter for the Jury to decide in a Crown Court case whether the Landlord’s actions were reasonable in all the circumstances.

The preferred and always safest option is for the landlord to obtain a possession order.

Surrendering the tenancy

If the landlord is not prepared to wait for a possession order then the next best alternative is to get the tenant to surrender the tenancy. This can be done by the tenant submitting in writing a notice to quit expressing their intention to give up the tenancy. It is important that the tenant also return of the keys. The return of keys is another important indication of the tenant’s intent to surrender their tenancy.

The least ideal scenario for the landlord is to take possession of their residential investment property on the grounds that the tenant has abandoned the landlord’s residential investment property. In order to help a landlord substantiate a claim for abandonment important factors would be:

Has the landlord stopped paying rent?
Has the tenant left the keys to the property?
Has the landlord attempted or been able to contact the tenant or a relative?
Do neighbours have any knowledge of the tenant’s circumstances?
Can the landlord see through the windows of the residential investment property and are they able to see if the tenant's possessions are still in the accommodation?

These points help to indicate abandonment. There are no legal rights attached to abandonment so what a landlord must seek to do is be able to prove to a court in the unlikely event that a tenant returns that they took every step possible to safeguard the rights of the tenant. This may be then accepted as a defence by a Jury should an unlawful eviction case be bought by the tenant.

Therefore, if a landlord can prove that their residential investment property had been left in an insecure state; or that the landlord suspects internal appliances could present a danger to the property and/or neighbours. If all these circumstances prevail then and only then could the landlord have a case for entering their residential investment property and possibly fitting a secure lock.

Where a landlord assumes abandonment and takes possession the landlord should:

Leave a clear notice on the door informing the tenant that the lock has been changed by yourself or a locksmith and that if the tenant requires access they must contact the landlord at the address supplied to obtain a replacement key.
Remember that a landlord does not want to encourage squatters - notices displayed too prominently may do just that!
Under no circumstance must the landlord deprive the tenant/s of their rights to access.

The advantage to a landlord of assuming a case of abandonment is that it may enable a landlord to re-let quickly (seeking a possession order can be a lengthy process). The chances are that the tenant will never be seen again and that you as the landlord have a considerable financial benefit of being able to re-let quickly and recoup some of the financial losses caused by the previous tenant. However, landlords should be in doubt that this is high risk strategy and if a landlord is in any doubt they should seek expert advice on the specific case.

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Comments (4)

Abandonment - not completely bereft.

Having assisted many landlords with this precise dilemma, I find the following assists:

If you need to enter to inspect for any possible water leak, possible security problem, mice, woodlice, leaves in the garden, need for a certificate or other problem, take in a witness -

Take numerous photos of the empty rooms, lack of bedding, empty wardrobes, fridge etc showing lack of habitation.

Check the consumption of utilities.

Repair the leak, broken carpet tack - whatever etc, and check those locks. It could be they are faulty or do not look very safe. Then you will need to change them for the security of the tenant. Obviously you will leave a visible notice clearly giving a number to ring to pick up the new keys and tell that friendly neighbour.(Whiskey and a box of Black Magic)

.
The danger here is of course an empty property and a break in.

Friendly neighbours can be vital here.
There may be little else worth stealing probably - except the boiler.
If however you have found that the boiler needs repairing or replacing you can remove that and wait for the tenant to return before replacing it - immediately.

Serve a s8/s21. By the way, not as stated, the s8 is far quicker as far as a hearing date is concerned but is discretionery.

A s8 on line application is quickest. It is cheaper and hearing dates seem quicker. BUT you must be careful in whose name you are issuing. The portal is pretty hopeless still.

At least you have gone down the legal process partially. Then you will have to take a view on taking over the property. One approach is simply to redecorate while you are waiting for the hearing. The tenant is free to move back in whenever he wishes and you are merely redecorating one room at a time for his benefit.

Refurbishment - ie making the property uninhabitable is different and will be deemed repossession.

At the hearing show the judge the photos and prove it is empty with witness statements etc. If the landlord is a company - watch out for the new stringency about the manager turning up being fully authorised by the company through a Witness statement by a director. And do watch who are the claimants - it must obviously be the registered owner and perhaps also the managing agency.

Finally watch out for the new nasty about uncertificated deposits. Last minute registations ex post facto will soon be impossible. All notices will be invalid until you have given the money back to the tenant or let him off rent and had that verified.

#1 - David - 03/18/2012 - 11:39

tenant has abandoned my property

I have just gained access to my house today. The tenant (previously paid rent on time without fail and caused no problems) did not pay the rent which is now 10 days overdue. The neighbours also raised concerns about how overgrown the garden was and that the tenant had been moving her belongings out (15 days ago). I have been unable to contact her via phone, text and email for the lalst 10 days. Upon entering the property today it is clear she has moved out, kindly leaving 6 bin bags or rubbish in the lounge (which now smell horrible), bags of rotten food in the garden and broken furniture in the house. There were numerous CCJ letters on the doormat and 2 baylif notices as well as CCJ letters in the bags of rubbish which date back to 2009. She moved in Jan 2011 and somehow managed to pass credit reference checks. Unfortuatly she has taken the keys with her and no one, even her work knows where she has gone. Do i understand rightly that i can not remove anything, including the rotting rubbish from the property and change the locks until she is 2 months in arrears and i have a possession notice (which can only be served if i can find her). This seems like pure madness and mean while my house is going to become in an increasingly worse state with the potential of rats. Can anyone advise on the best way forward for me? Many thanks Tamsin

#2 - T Kerswell - 08/08/2012 - 21:53

Rental contract and tenant abandonment

I am thinking of adding 2 clauses to the next rental contract, which will ask for 2 months rent, but no deposit:
1) if rent is overdue by 15 days and the tenant has not contacted the landlord to explain or agree payment, this is taken as giving 2 months notice of contract termination.
2) include a £50 finder fee, no questions asked, for the return of e property keys, independent of status of rent or condition of residence

Would that give some protection?

#3 - Ralph Strandmann - 03/27/2013 - 20:42

How can I serve claim

Hi There, my tenant since a 12 month less a day AST. He decieded fater 5 months to text me and tell me he was moving out on the 14th April. He has paid to this date. I wrote to the address he gave to advise that under the contract he needs to continue paying the rent. The address turns out to be his fathers who has resonded saying I should not bully his son into paying and that keeping his deposit should be enough under the circumstances. Further more, he will not provide a forwarding address for his some or forward on my letter. I have used twitter/facebook etc and found out he is working in London. I rang the nunber and asked to be put through to him and he answered. Can I serve notice to his work address ?. His boss is an MP and bizarrely when I followed him on twitter, he followed me back...my ex tenant however (following his movements on twitter) doesn't appear to stay sober long enough to do anything constructive.

#4 - Richard - 05/13/2013 - 16:57

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