The tenant has stopped paying the rent, the neighbours haven’t seen them and they are not responding to your attempts to contact them. When you drive past the property there is a pile of rubbish on the driveway and the property appears to have been vacated. What you may consider doing and what you should do may well be two different things. In the first of two articles, we will look at what the law says about abandonment, the effects of taking possession of the property, the implications of getting it wrong and building a case of reasonableness.
What does the law say?
Quite simply, at the current time, the law does not recognise any form of abandonment process or notice. There was an attempt to get abandonment notices recognised in the Housing Act 2004 but this was rejected.
The tenancy realistically may only be brought to an end in one of two ways identified in the Housing Act 1988:
- Sec 5 (1)(a)(i) an order of the court for possession of the dwelling house court order and (ii) the execution of that order. It goes on to say for clarity within amendment 1(A) that the tenancy ends when the order of the court is executed.
- Section 5(2)(b) a surrender or other action on the part of the tenant.
So other than the landlord being awarded possession by the court following possession proceedings the only other lawful method of obtaining possession is, for instance, if the tenant vacates and returns the keys or otherwise offers a surrender of the tenancy (assuming the landlord accepts the surrender). By default, any other method is therefore deemed as not acting within the law and therefore there is a risk of prosecution.
So what could possibly go wrong?
The law does not state that the tenant has to occupy the property to be the tenant. This is clearly demonstrated in a Company Let where the company does not occupy the property, although employees of the company may do so. Therefore it is a misnomer to suggest that if the tenant has a right to reside that the tenant can be deemed to have abandoned the property. The tenant may have moved out but unless the tenancy has been surrendered, or clearly handed back to the landlord in some other way, then the tenancy continues.
In the introductory scenario, the landlord decided to enter the property, change the locks, redecorate and re-let the property. So where does the landlord stand now? Well if the original tenant turns up claiming he has been unlawfully evicted the landlord is potentially in a whole pile of trouble.
The legislation under which the landlord is most likely to be prosecuted is “The Protection from Eviction Act 1977”. The Act does not use the word tenant but instead uses ‘residential occupier’ which includes the tenant and anyone permitted by either the landlord or the tenant to occupy the property. If it transpires that the landlord is guilty of an offence of unlawful eviction then this is a criminal offence. There is a possibility of a fine, a prison sentence or both. Additionally, there is, of course, the strong probability that the tenant may make a claim for civil damages which may be substantial in some circumstances. There are plenty of ‘no win, no fee’ solicitors ready to run with cases of this nature where they will help the tenant claim damages of various sorts with potential claims running into many thousands of pounds including:
- Special damages: This might include refunding the tenants expenses if they had to find somewhere else to stay upon finding themselves excluded.
- General damages: Typically for shock, distress and inconvenience.
- Aggravated damages: This may cover severe suffering; for instance cutting off the utilities or for an injury, for instance following an act of violence.
- Exemplary damages: For instance the landlord benefitting financially after selling the property with vacant possession having unlawfully evicted the residential occupier.
Section 27 of the Housing Act 1988 inserted amendments into the Protection from Eviction Act 3(A) creating a specific offence of unlawful eviction. This section identifies the damages for unlawful eviction and, amongst other things, clarifies that the Protection of Eviction Act applies if the tenant is deprived of the whole, or indeed even part of the premises. Additionally, the landlord may be guilty of an offence of harassment if they interfere with the peace or comfort of the tenant or if they withhold services (cut off the water, gas or electricity for example) from the property, even if they do not evict the tenant. Crucially action may be taken against either the landlord or anyone acting on behalf of the landlord.
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What can you do?
Returning to our example you may ask “where has the tenant been all this time?” There have been cases where the tenant has been away caring for sick relatives overseas or where they have been in hospital themselves, they have been on an extended holiday or indeed serving a prison sentence. None of these situations means that they are not the tenant, even if they have not been paying the rent as only the court can determine the tenancy.
Of course, it is understood that in many cases the tenant has indeed disappeared and may be extremely unlikely to reappear. In these scenarios and as long as a thorough process has been completed there is a possible defence.
The Protection from Eviction Act 1977 Section 1(2) states that the landlord
‘shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.’
The past tense in which this subsection is written implies that the landlord before he took any action, had carried out what investigations he could, and then subsequently, as a result of the investigations ‘believed and had reasonable cause to believe’.
In order to justify his actions, the landlord would have had to build up a file detailing all the actions and checks carried out before making the decision to take possession of the property. These may include a rent statement; contemporaneous notes; copies of letters to the property and to the address for ‘after the tenancy’ as required as part of the deposit prescribed information; copies of emails; details of conversation with neighbours; checks into whether the tenant had unregistered for council tax; details of checks with utility providers and with the housing benefit office. Following 24 hours’ written notice to the property the landlord, unless not permitted, may access the property to carry out a periodic visit. The physical state of the property can be recorded, post checked for postmark dates and the fridge checked for food with sell by dates etc. These pieces of information together will help to build up a picture of reasonableness.
There are no guarantees that even if the most thorough investigation is carried out that a claim of unlawful eviction may be defended. We have seen that there is clearly a risk to taking possession without a court order, if you do decide to take possession of a property without the tenant having surrendered or vacated at the end of the tenancy or having been granted a possession order by the court then you stand a risk of facing a criminal prosecution. In order to give yourself the best chance of arguing your case, you will have carried out sufficient investigations to give yourself a belief or a reasonable cause to believe that the tenant has ceased to reside in the property. In the next article in this series, we will consider what notices you may choose to use, timescales to employ them and how to deal with belongings left by the tenant. Finally, we will consider whether a legal process of dealing with abandonment is a realistic possibility.