Tenant Abandonment

What is abandonment of a rental property?

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 a landlord’s rental property, they are in a difficult position. This is because if the tenancy has not been surrendered or bought to an end, if the missing tenant was to return at some point, they would be legally within their rights to 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 rental property.

What should a landlord do when a tenant abandons a rental property?

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 can be very difficult for a landlord , particularly if the rental property is say an apartment in a large block, to judge from an external inspection whether a tenant has left a property.

If a landlord can see the tenant has left some of their possessions at the property then they should be made aware that these are often interpreted by a Court  as “demonstrating an intention to return” and that the tenant intends the tenancy to continue.

If a landlord makes the wrong decision, and assuming that the tenant has left the rental property and they attempt to re-let, the return of the missing tenant could mean the landlord may 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 tenant 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 in a rental property – 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 their rental property 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 legal advice on their specific case.