Tenant Abandonment and the Law

tenant abandonment

For many landlords across the UK, tenant abandonment is a serious and vulnerable area of letting a property. At the current time, the law does not recognise any form of abandonment process or notice.

In 2004, there was an attempt to get abandonment notices recognised in the Housing Act, but this was rejected. In this article, we will cover the issues surrounding tenant abandonment, what can go wrong and what landlords can do to protect themselves and their properties.

What is tenant abandonment?

Tenant abandonment is when a tenant leaves a property before their tenancy has ended and does not notify their landlord.

Picture this: your tenant has stopped paying rent, the neighbours haven’t seen them in a while and they’re not responding to your calls or emails. When you drive past the property, there’s a pile rubbish on the drive and no signs of life inside. What can you do next?

Tenant abandonment and the Housing Act

According to the Housing Act 1988, a tenancy realistically may only be brought to an end in one of two ways:

  • Section 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, unless the landlord has been awarded possession by the court following possession proceedings, the only other lawful method of obtaining possession is if the tenant vacates and surrenders the tenancy. An example of this ‘surrender’ would be if a tenant left the property and returned the keys.

By default, any other scenario – such as a tenant upping and leaving without a trace – is deemed as not acting within the law and therefore creates a risk of prosecution for the landlord.

So, what options do landlords have when it comes to tenant abandonment?

Tenant abandonment and protection from eviction

Thinking back to our initial scenario, imagine that you have decided to enter the abandoned property, change the locks, redecorate and re-let – then the original tenant turns up.

If your tenant returns and claims they have been unlawfully evicted, this could create serious trouble for you.

Under The Protection from Eviction Act 1977 – landlords can be prosecuted. 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, there is a possibility of a fine, a prison sentence or both.

Claiming damages

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.
  • 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 amended the Protection from Eviction Act 3(A) by 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.

Why does tenant abandonment happen?

Returning to our example you may ask: “where has the tenant been all this time?”

There have been cases where tenants have been away caring for sick relatives overseas or where they have been in hospital themselves. In other situations, tenants have been on an extended holiday or even serving a prison sentence. None of these situations mean that they are not the tenant, even if they have not been paying the rent.

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.

What can landlords do when it comes to tenant abandonment?

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.’

This subsection implies that if a landlord has reasonable cause to believe their tenant is no longer living on the property before they take any action, then they are not guilty of offence.

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.

Is there such thing as a tenant abandonment notice?

Unfortunately, a formal tenant abandonment notice or procedure does not exist. There is no guidance, no prescribed information and no timescales – so its down to the landlord to consider what is reasonable.

The reason for putting any type of notice in a property is to give any tenant or residential occupier of the property 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:

First stage of notice

A notice placed prominently inside and posted to the property is a sufficient start. The notice should state 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. The notice must 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 photo too.

Second stage of notice

A second action would be to implement a notice visible from the outside but secured on the inside. The notice should state that the locks have been changed and provide details as to 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.

Tenant abandonment and leftover belongings

In any situation where the landlord takes or is granted possession of their property and they find belongings of the tenant left over, the landlord then becomes an involuntary bailee.

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.

Tenant abandonment and the law of leftover goods

When the tenant ceases to reside in a property, this is normally pre-planned and ordinarily, they’ll disappear without a trace and only unwanted goods will be left.

 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 commission a third party to prepare a detailed inventory of the items. This will prevent a retrospective claim that a valuable item has been sold, disposed of or otherwise misappropriated.

The Torts (Interference with Goods) Act 1977

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 is therefore at the landlord’s discretion to deem reasonable.The delivery and content of the notice, however, 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 is ended.

Can I store or sell a tenant’s abandoned belongings?

Any notice given to the tenant 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 and allows 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. 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. 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.

Legal abandonment process

So, 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 time-consuming responsibility of dealing with the tenant’s belongings. Now we will move onto the prospects of a legal abandonment process.

The Housing and Planning Act 2016

We’ve established that if the tenant decides to vacate without telling you or you suspect abandonment, there aren’t any procedures set in stone you can follow or any laws in place to guide and protect you. However, The Housing and Planning Act 2016 does have a voice here.

The Act outlines a legal process to follow if you suspect tenant abandonment and want to legally regain access to the property. Unfortunately, at the moment they are “prospective” which means they haven’t yet come into force and are legally unenforceable – “Section 216 (3) The other provisions of this Act come into force on such day as the Secretary of State may by regulations appoint.”

Unfortunately, no such regulations have been passed. So, what can you do next?

Regaining access

Take this scenario: you haven’t heard from your tenant in 6 weeks and the rent (paid monthly) has not been paid. You have tried calling your tenant, writing to them, e-mailing them and even knocking on the door and there are no signs of them. What will the process be?

Firstly you can only regain access if certain conditions are met:

  • The property is in England
  • The rent is overdue i.e. for a monthly paying tenant there must be at least two months’ rent in arrears (see clause 58 (1) (a) (b) (c) & (d) for all overdue periods depending on when rent is payable)
  • The landlord has given the prescribed notices in the correct way (more below)
  • No tenant, named occupier or deposit payer has responded to the notices.

The landlord or agent must give 4 notices (assuming they go unanswered) to the tenant / named occupier and deposit payer (relevant person- if applicable). The notices must be served in a number of ways to ensure all reasonable steps have been taken to contact the tenant.

When can the abandonment process begin?

The process can be started even if the unpaid rent condition is not yet met (i.e. before the tenant is 2 months in arrears.)

The first notice must be given to the tenant, named occupier and deposit payer (the three potentially interested parties) in person – obviously, if they have abandoned, this will be quite difficult! Section 61 (3) has provided 4 different methods of serving the notice. Firstly you should leave it at or post it to the property.

Secondly, you should leave it at or post it to every UK postal address you have for the three interested parties (the tenant, named occupier or deposit payer).

Thirdly you should e-mail it to every e-mail address you hold for the three interested parties. The fourth only applies if the tenant has a guarantor and states that you should leave it at or send it to every postal address in the UK for every guarantor marked for the attention of the tenant.

The notice must explain that the landlord believes the premises to be abandoned. It must explain that the tenant, named occupier or deposit payer must respond in writing before a specified date if the premises haven’t been abandoned (the specified date must be after the end of the period of 8 weeks beginning with the day on which the first warning notice is given to the tenant).

And finally, it must state that the landlord proposes to bring the tenancy to an end if none of the three interested parties responds in writing before that date.

Don’t miss the fourth notice

It is very easy to miss the fourth notices as the legislation clearly talks about “three notices” (section 59(1)). However, the origin of this last notice is contained in section 57 where it says “A private landlord may give a tenant notice to bring an assured shorthold tenancy to an end on the day on which the notice is given”.

This final notice is not a warning, but simply states the tenancy is ended. Unlike the other notices, there are no prescribed methods of service or people on whom to serve it. It would, therefore, be wise to copy the basic requirements of the other notices and copy them by the usual means to the tenant, any occupier and the deposit payer. The legislation does not specify when this notice can be served but it would be obvious it cannot be before the warning notices have expired (as it ends the tenancy that day and section 57(d) says you have to know the warning notice have not been responded to “before the date specified in the warning notices”), though it could be slightly after that date if preferred.

Failure to respond to a tenant abandonment notice

If the tenant or other relevant parties fail to respond to your first notice, then you must serve a second notice. The second notice may only be given once the unpaid rent condition is met (so now your tenant owes two months or more in rent, for monthly rental) and it must be given at least two weeks and no more than four weeks after the first warning notice was served. The notice must be served in the same methods as above and state the same information as the first notice.

If you still haven’t heard from any of the interested parties explaining whether the property has been abandoned or not, you must issue a third warning. You must serve this notice at least 6 days before the period of 8 weeks has expired.

This warning contains the same information as the first two but it is served differently. It must be served by fixing it “to some conspicuous part of the premises to which the tenancy relates”, such as the front door or window.

If you have served your three warning notices and no one has come forward to claim the property or confirm that it has been abandoned then, you can serve notice to end the tenancy on the day the notice is given.

Tenancy reinstatement

The tenant can apply to the county court to “reinstate” their tenancy if they have good reasons for failing to respond to warning notices. The tenant has 6 months beginning from the day where the notice was served to go down this route. If the court finds in favour of the tenant they may “make any order it thinks fit for the purpose of reinstating the tenancy.”

 So, if your tenant applies to the court stating they couldn’t respond as they were in Greece helping their sick mum, but they still want to reside in the property then the court could find in their favour and reinstate the tenancy. Until this becomes law and is then tried and tested in court – one cannot know the likelihood of this happening or how a judge would rule.

Tenancy abandonment – a conclusion

Until the above becomes law, there is still no legal process for regaining possession of the property without a court order (or confirmation from the tenant that the property has been abandoned). The above does, however, provide a good process to follow if you suspect abandonment. It will mean that you can provide evidence to the court to show that you have followed a reasonable process to contact the tenant.

If your tenant abandons your property and stops paying rent, your finances will be seriously impacted. Here at LettingaProperty.com, we offer rent guarantee insurance with our Rent on Time package. For just £89 a month (inc VAT), we’ll pay your rent every month, even if your tenant can’t.

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