In the first article, in this series, we established that currently there is no legal process to deal with a situation where a landlord believes that a tenant has abandoned a property. If the landlord, or anyone acting on behalf of the landlord, takes possession of a property without a court order and the tenant returns to find themselves excluded then there is a risk of a criminal prosecution and civil damages.
We also established that within the Protection from Eviction Act 1977 there is a principle that if the landlord can prove that they had a belief that the tenant / residential occupier (tenant) was no longer residing at the property then they may not be guilty of an offence. Of course, only a judge, based on the evidence provided by the landlord, could decide whether the landlord had reasonable cause to believe or not. If we accept that the risk of prosecution cannot be fully mitigated there are well used processes used by both landlords and agents to forewarn the tenant of their intention to take possession of the property. This, coupled with the other investigations will help establish a case of reasonableness. In this article, we will consider the types of notices and process that could be employed and how to deal with tenant’s possessions.
There is no such thing recognised in law as an abandonment notice or procedure. Where landlords have completed investigations and as a result, believe that the tenant has ceased residing at the property (and therefore knowing the risks and with little prospect of them returning) landlords do, on occasion, choose to take possession of properties.
As there is no such thing as an abandonment notice there is no form, no recognised process, no prescribed information on the details to be provided, no timescales or indeed guidance on where to put the notice. Therefore, we have to consider what might be deemed as reasonable.
The reason for putting any notice in or on the property is to give any tenant or residential occupier of the property, or indeed any other interested party, the opportunity to contact the landlord or agent to give information or to stop them from taking further action. It may be considered that a two stage approach is reasonable and fair to the tenant:
Stage 1 – A notice placed prominently inside and posted to the property stating the belief that the property has been abandoned, that the landlord intends to take possession of the property, that the landlord intends to change the locks and the date when this will be done. Also, include means of contacting the landlord and the date the notice was posted. There is no need to have this notice visible from outside as any genuine occupier will have access to the property. It would be advisable to take a date stamped photograph.
Stage 2 – A notice visible from the outside but secured on the inside stating that the locks have been changed, where and how anyone who believes they have a right to occupy the property can contact the landlord. The notice should contain with timescales and the date the notice was posted. If the property is too prominently placed i.e. on the High Street then any notice of this type effectively advertises that the property is vacant. For this reason, it is necessary to be careful about where you place the second notice.
In the event that a tenant does return, and is allowed to re-enter the property, the landlord cannot be guilty of unlawful eviction but can still be found guilty of harassment.
Tort (Interference with Goods) Act 1977
In any situation where the landlord takes or is granted possession, he discovers belongings of the tenant in the property then he becomes an involuntary bailee whilst the belongings or goods are under his possession or control. Having taken possession of the property it would, of course, be tempting to simply believe that the landlord was now the owner of the goods and would be free to dispose of them in whichever way they saw fit. However, The Torts (Interference with Goods) Act 1977 dictates what the landlord may or may not do and what the tenant may expect.
When the tenant abandons or ceases to reside in a property this is normally pre-planned and ordinarily, only unwanted goods will be left and the tenant is usually untraceable. If, however, the tenant is communicative or their location is known then every effort should be made to arrange collection or confirmation that you may sell or dispose of anything remaining. If this is not possible then it is at this point that the landlord should ideally prepare or ideally commission a third party to prepare a detailed inventory of the items to prevent a retrospective claim that a valuable item has been sold, disposed of or otherwise misappropriated.
Section 12(1)(c) of the Act allows landlords to dispose of the goods where the tenant is untraceable after giving them notice. The term of the notice is not defined and therefore should be reasonable although the delivery and content of the notice is defined in schedule 1 of the Act. The landlord or bailee must give notice to the tenant in writing that he imposes an obligation on the tenant or bailor to take delivery of the goods. The notice is required to be in writing and must either be:
- Given to the tenant in person
- Left at (or posted to) the tenant’s current address
- If the current address isn’t known then left at (or posted to) the last known address.
If the tenant fails to collect the goods within the ‘reasonable’ period then the tenant is in breach of their obligations and the landlord’s duty to safeguard the goods ends.
The notice must also specify the name and address of the landlord (or his agent) and give sufficient details of the goods and the address of where the goods are held. There is no requirement for the goods to be retained within the property from which they came. This allows the goods to be stored elsewhere thereby allowing the landlord to continue with their plans for the property. The notice additionally must state that the goods are ready to be collected and a date when the contract to safeguard the goods ends.
If the landlord intends to sell the goods in order to recoup other accrued debts then the landlord must serve a Notice of Intention to Sell Goods. The details of the landlord and location of goods is again required. Additionally, the landlord must supply the date on which he intends to sell the goods and amount owed before the notice was served. The period between the notice date and date of sale should be sufficient to give the tenant a reasonable chance to take delivery of the goods and there must not be less than three months between the notice and the sale. This notice must either be sent as a registered letter or recorded delivery.
A failure of the tenant to take delivery of the goods or consent from the tenant will allow the landlord to sell any goods of value although the landlord will be liable to account to the tenant for the proceeds of sale less any costs of sale. Technically the proceeds of sale belong to the tenant although practically there would be little prospect of the tenant getting their hands on the proceeds if they have been offset against money owed such as rent arrears.
We have so far identified that the correct process for seeking possession of an ‘abandoned’ property is likely to lead to a period where no rent is passing and where the arrears for the tenant and the legal costs paid by the landlord are building up with little or no prospect of recovery. On top of that, there is the additional responsibility of dealing with the tenant’s belongings which can be a time consuming process. In the next article, we will consider the prospects of a legal abandonment process. If you missed the previous article in the series you can read it here. And to make sure you don’t miss the next part, sign up to our weekly Landlord newsletter in the box below.
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