VANISHING TENANTS – ABANDONMENT
The event of a tenant suddenly disappearing is unfortunately not an uncommon incident for landlords. It will normally occur when a tenant is having financial or personal problems and for many landlords the initial feeling is that of relief. However, the relief experienced by a landlord at this apparent sudden resolution to what might have appeared to be the prospect of a long and drawn out court battle to repossess their residential investment property can be short lived.
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Legal grey area for landlords
This is because what beckons is the prospect of the landlord entering into the strange twilight world known legally as abandonment. Abandonment is where the tenant to all intensive purposes has appeared to relinquish their tenancy and decided to have taken the option to ‘cut and run’.
However, even if a landlord suspects that the tenant who may be heavily in arrears has returned to their country of origin half way around the world. The fact remains that the tenant in the eyes of the law is still the tenant and thereby retains all legal rights attached to the tenancy. A tenancy can only be bought to an end by the landlord obtaining a Court order for possession or by a surrender or similar act by the tenant.
So what are your options as a landlord?
A landlord’s options
The safest option for any landlord who has tenants that have disappeared is to follow the legal procedure for obtaining a possession order.
The drawback for a landlord of going down this route is that it potentially involves the considerable expense of a landlord employing a solicitor. Even if the landlord opts to do the legal work themselves, they still incur the costs of the court fees. The other problem is that the process of obtaining a possession order is extremely slow. It will take landlords at least several months and possibly longer to obtain. A landlord therefore faces the prospect of having to continue to pay the mortgage even whilst their buy-to-let property is empty. This negative cashflow situation is likely to come on top of a period when a landlord may not have received rent for several months already. The landlord therefore may be tempted to take a risk on the fact that abandonment has taken place and that the tenant will not return. In this scenario what should a landlord do to ensure they have a credible claim that abandonment has occurred?
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.
What circumstances may constitute tenant abandonment?
In order for a landlord to substantiate a claim for abandonment important defining factors are:
- Has the tenant stopped paying rent?
- Is the property empty of the tenants possessions?
- Has the tenant left the keys to the residential investment 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 all help to indicate abandonment. It is important for a landlord to remember that there are no legal rights attached to abandonment so what a landlord must seek to ensure is that they would 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 then be 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 a landlord has a case for entering their residential investment property and possibly fitting a new secure lock. Where a landlord assumes abandonment and takes possession, the landlord should also leave a clear notice on the door informing the tenant that the lock has been changed and that if the tenant requires access they must contact the landlord at the address supplied to obtain a replacement key.
To sum up…..
The law is clear; a tenancy can only be bought to an end by a possession order or surrender of the tenancy by the tenant. Taking back a residential investment property by claiming abandonment is a risky option. Should a landlord decide to do it then by following the steps outlined the landlord will put themselves in the best position of being able to defend them self should the tenant make a dramatic reappearance and subsequently make a claim for unlawful eviction.