Scales and gavel at abandonment hearing

Tenant Abandonment And The Law (Series Part 3)

As we have seen in the previous articles (part 1 and part 2) in the series, 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.

The Housing and Planning Act 2016 has a voice here.

The Act includes an official process for dealing with tenant abandonment which, when brought into force, can be used alongside the advice in the previous articles.

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 as such 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.”

To date, no such regulations have been passed.

What can you do next?

Scales and gavel at abandonment hearing

Serve Notices Or Letters For Abandonment?

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.

Failure to respond to 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 then 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”. So this could be the front door or the window for example.

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 at this point you can serve notice bringing the tenancy to an end on the day the notice is given.

Don’t miss the 4th 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.

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.

Summary

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.

Mitigate The Risks Associated With Rental Property Tenant Abandonment

If your tenant abandons your property and stops paying rent the effects could be disastrous to your bottom line rental income. We’ve developed our lettings packages over the last 10 years to help our landlords take away that risk. Compare our packages and see how we can help you reduce the risk of abandoned properties.

About Jonathan Daines

After having worked as a high street letting agent for over 5 years, I believed there was a better way of helping landlords find tenants without the unnecessary expenses. And so in 2008, lettingaproperty.com was born and has since let over 8,000 properties across the country. I am very proud of the service levels we offer and to have achieved a 99.3% recommendation rate on reviewcentre.com. If you have any questions about our business, please do let me know. I look forward to hearing from you.

2 Comments

    January 21, 2019 REPLY

    Hello please help! What can I do next? My estate agent is owing up to 3months rent and blaming it on the council. Thank you.

      January 22, 2019 REPLY

      Hi Edith, if you feel that the property has been abandoned you should follow the steps as discussed in this article and start the process of recovering the property as soon as you can. First, though I would ask your estate agent for more detailed clarification on why the council are not paying the rent as normal. If you have contact information for your tenant you could discuss the situation with them also to get an idea of what the issue might be.

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