A tenant leaving doesn’t mean possession
My tenant has left – time to celebrate?
This week I was greeted by a text from a friend/neighbour to one of my rental properties. It was good news, my non-rent paying tenant had left. Brilliant! Time to crack open the champagne and get out the decorating brush.
Well, not quite!
Though the tenant may have gone, unfortunately, in the eyes of the law the tenancy has not actually ended. I have been throught the whole Section 21 Notice process for possession.
I’ve served my Section 21 Notice, I have sent in my N5B seeking possession to the courts (along with the cheque for £280), I have received the Notice of Issue (N206A form) from the court confirming the date of issue of the claim for possession, I’ve waited for the 14 day period that the tenant has to file a defence on the form N11B to expire, and have then duly sent the slip back to the court asking them to give me possession and making a claim for the £280 costs. I have received the Order for Possession from the court ordering the tenant to give me possession and pay the court fees of £280.
Surely, after jumping through all these hoops, I can finally get my rental property back?
Well, legally, – no.
Without the tenant returning the keys even if you’re sure the tenant has moved out; in the eyes of the law there is still a tenancy – the tenant still has full rights of occupation.
My next steps
My next steps therefore are to:
Download a N325 form (a warrant for possession of land). Yet another form, and this one requires a further cheque for £110 to pay the bailiff. Then it’s a case of waiting for the bailiffs to be available to go in and do their stuff. This could be many more weeks!
Then a development…. an email from the tenant’s guarantor.
I have during this entire tiresome episode been emailing the tenant’s guarantor, partly to keep them informed of proceedings and also because any previous emails or phone messages to the tenant had been ignored.
The email from the tenant’s guarantor includes an indignant fowarded email from the tenant, in which it states they had left my rental property at the end of June (of course I should have known….even though they had neglected to tell me ..…an email or text would have been nice).
So having received the email am I legally safe to go in?
I have written before about the legalities of abandonment of a rental property for a landlord. An abandoned property exists in a strange in-between world. A landlord might know their tenant has moved out, but legally the tenancy remains in force, the ghostly tenant still occupies the property.
One key factor in my case, (quite literally), was the tenant had written in her email that she had posted the keys back through the letterbox of the rental property.
I decided to get an expert legal view on my position from Rebecca Brough at Fidler & Pepper.
Her views on my situation were clear
“If the tenant has given you the keys or left them at the rental property, then you can take possession.
The difficulty is if the tenant still has the keys. The only legal way to get possession is for the tenant to hand over the keys willingly, or for a Bailiff to hand over the property following a possession order. If a landlord takes possession in any other circumstance a tenant could bring a claim for illegal eviction.
A landlord needs to prove ‘reasonable belief’
There is a defence to illegal eviction, deemed ‘of reasonable belief’. So if you have messages from your tenant giving a date for leaving make sure you keep those as they might later form a defence against any clain of illegal eviction.
It is also worth talking to the neighbours of the rental property – it might be that the tenant might have mentioned to them they were leaving, or they might have seen a removal van. It all can help evidence your ‘belief’.
Another avenue a landlord can explore is if a tenant is in receipt of Housing Benefit, they can contact the Housing Benefit Office – they won’t tell you where a they have gone but they may confirm whether they are receiving benefit on another rental property.
Though all this proof can help support or substantiate your ‘reasonable belief’ that the tenant has left, a tenant might still bring a claim, so keep everything documented as it will help any potential defence.
So, in my case, I have confirmation from the tenant in the email that the keys have were posted back through the letterbox of the rental property.
I do need to check this is the case when I re-enter the property.
However, if it is correct, then I will be ready for the next stage of resurrecting my buy-to-let – the clean up and the chasing of the rent arrears. Now for getting my owed rent back.
TO BE CONTINUED….