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. <\/p>\n\n\n\n
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.<\/p>\n\n\n\n
Tenant abandonment is when a\ntenant leaves a property before their tenancy has ended and does not notify their\nlandlord. <\/p>\n\n\n\n
Picture this: your tenant has stopped\npaying rent, the neighbours haven\u2019t seen them in a while and they\u2019re not\nresponding to your calls or emails. When you drive past the property, there\u2019s a\npile rubbish on the drive and no signs of life inside. What can you do next?<\/p>\n\n\n\n
According to the Housing Act 1988<\/a>, a tenancy realistically may only be brought to an end in one of two ways:<\/p>\n\n\n\n So, unless the landlord has been awarded possession by the court\nfollowing possession proceedings, the only other lawful method of obtaining\npossession is if the tenant vacates and surrenders the tenancy. An example of\nthis \u2018surrender\u2019 would be if a tenant left the property and returned the keys.<\/p>\n\n\n\n By default, any other scenario \u2013 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. <\/p>\n\n\n\n So, what options do landlords have when it comes to tenant abandonment?<\/p>\n\n\n\n Thinking\nback to our initial scenario, imagine that you have decided to enter the abandoned\nproperty, change the locks, redecorate and re-let \u2013 then the original tenant\nturns up. <\/p>\n\n\n\n If your\ntenant returns and claims they have been unlawfully evicted, this could create\nserious trouble for you. <\/p>\n\n\n\n Under The Protection from Eviction Act 1977<\/a> \u2013 landlords can be prosecuted. The Act does not use the word tenant but instead uses \u2018residential occupier\u2019 – 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. <\/p>\n\n\n\n Additionally, there is, of\ncourse, the strong probability that the tenant may make a claim for civil\ndamages which may be substantial in some circumstances. There are plenty of \u2018no\nwin, no fee\u2019 solicitors ready to run with cases of this nature where they will\nhelp the tenant claim damages of various sorts with potential claims running\ninto many thousands of pounds including:<\/p>\n\n\n\n Section 27 of the Housing Act 1988 amended the Protection from Eviction Act 3(A) by\ncreating a specific offence of unlawful\neviction. This section identifies the damages for unlawful eviction\nand, amongst other things, clarifies that the Protection of Eviction Act\napplies if the tenant is deprived of the whole, or indeed even part of the\npremises. <\/p>\n\n\n\n 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<\/a> or electricity<\/a> 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.<\/p>\n\n\n\n Returning to our example you may ask: \u201cwhere has the tenant been all\nthis time?\u201d <\/p>\n\n\n\n There have been cases where tenants have been away caring for sick\nrelatives overseas or where they have been in hospital themselves. In other\nsituations, tenants have been on an extended holiday or even serving a prison\nsentence. None of these situations mean that they are not the tenant, even if\nthey have not been paying the rent. <\/p>\n\n\n\n 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.<\/p>\n\n\n\n The Protection from Eviction Act 1977 Section 1(2) states that the\nlandlord<\/p>\n\n\n\n \u2018shall be guilty of an offence unless he proves\nthat he believed, and had reasonable cause to believe, that the residential\noccupier had ceased to reside in the premises.\u2019<\/em><\/strong><\/p>\n\n\n\n This subsection implies that if a landlord has reasonable cause to\nbelieve their tenant is no longer living on the property before they take any\naction, then they are not guilty of offence.<\/p>\n\n\n\n In order to justify his actions, the landlord would have had to build up\na file detailing all the actions and checks carried out before making the\ndecision to take possession of the property. <\/p>\n\n\n\n These may include:<\/p>\n\n\n\n Following 24 hours\u2019 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.<\/p>\n\n\n\n Unfortunately, a formal tenant abandonment notice or procedure does not\nexist. There is no guidance, no prescribed information and no timescales \u2013 so\nits down to the landlord to consider what is reasonable.<\/p>\n\n\n\n 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:<\/p>\n\n\n\n A notice placed prominently inside and posted\nto the property is a sufficient start. The notice should state the belief that\nthe property has been abandoned, that the landlord intends to take possession\nof the property, that the landlord intends to change the locks and the date\nwhen this will be done. The notice must also include means of contacting the\nlandlord and the date the notice was posted. There is no need to have this\nnotice visible from outside, as any genuine occupier will have access to the\nproperty. It would be advisable to take a photo too.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n In any situation where the landlord takes or\nis granted possession of their property and they find belongings of the tenant\nleft over, the landlord then becomes an involuntary bailee.<\/p>\n\n\n\n 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<\/a> dictates what the landlord may or may not do and what the tenant may expect.<\/p>\n\n\n\n When the tenant ceases to reside in a property, this is normally\npre-planned and ordinarily, they\u2019ll disappear without a trace and only unwanted\ngoods will be left.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Section 12(1)(c)<\/a> of the Act allows\nlandlords to dispose of the goods where the tenant is untraceable after giving\nthem notice. The term of the notice is not defined and is therefore at the\nlandlord\u2019s discretion to deem reasonable.The delivery and content of the notice,\nhowever, is defined in Schedule 1 of the Act. <\/p>\n\n\n\n The landlord or bailee must give notice to the tenant in writing that he\nimposes an obligation on the tenant or bailor to take delivery of the goods.\nThe notice is required to be in writing and must either be:<\/p>\n\n\n\n If the tenant fails to collect the goods within the \u2018reasonable\u2019 period, then the tenant is in breach of their obligations and the landlord\u2019s duty to safeguard the goods is ended.<\/p>\n\n\n\n Any notice given to the tenant must also specify the name and address of\nthe landlord (or his agent) and give sufficient details of the goods and the\naddress of where the goods are held. <\/p>\n\n\n\n There is no requirement for the goods to be retained within the property\nfrom which they came. This allows the goods to be stored elsewhere and allows\nthe landlord to continue with their plans for the property. The notice\nadditionally must state that the goods are ready to be collected and a date\nwhen the contract to safeguard the goods ends.<\/p>\n\n\n\n If the landlord intends to sell the goods in order to recoup other\naccrued debts, then the landlord must serve a Notice of Intention to Sell Goods.\nAdditionally, the landlord must supply the date on which he intends to sell the\ngoods and amount owed before the notice was served. The period between the\nnotice date and date of sale should be sufficient to give the tenant a\nreasonable chance to take delivery of the goods and there must not be less than\nthree months between the notice and the sale. This notice must either be sent\nas a registered letter or recorded delivery.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n So, we have so far identified that the correct process for seeking possession of an \u2018abandoned\u2019 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\u2019s belongings. Now we will move onto the prospects of a legal abandonment process.<\/p>\n\n\n\n We\u2019ve established that if the\ntenant decides to vacate without telling you or you suspect abandonment, there\naren\u2019t any procedures set in stone you can follow or any laws in place to guide\nand protect you. However, The Housing and Planning Act 2016 does have a\nvoice here. <\/p>\n\n\n\n The Act outlines a legal process to\nfollow if you suspect tenant abandonment and want to legally regain access to\nthe property. Unfortunately, at the moment they are \u201cprospective\u201d which means\nthey haven\u2019t yet come into force and are legally unenforceable \u2013 \u201cSection 216\n(3) The other provisions of this Act come into force on such day as the\nSecretary of State may by regulations appoint<\/em>.\u201d<\/p>\n\n\n\n Unfortunately, no such regulations have been passed. So, what can you do next?<\/p>\n\n\n\n Take this scenario: you haven\u2019t\nheard from your tenant in 6 weeks and the rent (paid monthly) has not been\npaid. You have tried calling your tenant, writing to them, e-mailing them and\neven knocking on the door and there are no signs of them. What will the process\nbe?<\/p>\n\n\n\n Firstly you can only regain access if certain conditions are met:<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The\nprocess can be started even if the unpaid rent condition is not yet met (i.e.\nbefore the tenant is 2 months in arrears.)<\/p>\n\n\n\n The first\nnotice must be given to the tenant, named occupier and deposit payer (the three\npotentially interested parties) in person \u2013 obviously, if they have abandoned,\nthis will be quite difficult! Section 61 (3) has provided 4 different methods\nof serving the notice. Firstly you should leave it at or post it to the\nproperty.<\/p>\n\n\n\n Secondly,\nyou should leave it at or post it to every UK postal address you have for the\nthree interested parties (the tenant, named occupier or deposit payer).<\/p>\n\n\n\n Thirdly\nyou should e-mail it to every e-mail address you hold for the three interested\nparties. The fourth only applies if the tenant has a guarantor and states that\nyou should leave it at or send it to every postal address in the UK for every\nguarantor marked for the attention of the tenant.<\/p>\n\n\n\n The\nnotice must explain that the landlord believes the premises to be abandoned. It\nmust explain that the tenant, named occupier or deposit payer must respond in\nwriting before a specified date if the premises haven\u2019t been abandoned (the\nspecified date must be after the end of the period of 8 weeks beginning with\nthe day on which the first warning notice is given to the tenant).<\/p>\n\n\n\n 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.<\/p>\n\n\n\n It is\nvery easy to miss the fourth notices as the legislation clearly talks about\n\u201cthree notices\u201d (section 59(1)). However, the origin of this last notice is\ncontained in section 57 where it says \u201cA private landlord may give a tenant\nnotice to bring an assured shorthold tenancy to an end on the day on which the\nnotice is given<\/em>\u201d. <\/p>\n\n\n\n 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 \u201cbefore the date specified in the warning notices<\/em>\u201d), though it could be slightly after that date if preferred.<\/p>\n\n\n\n If the\ntenant or other relevant parties fail to respond to your first notice, then you\nmust serve a second notice. The second notice may only be given once the unpaid\nrent condition is met (so now your tenant owes two months or more in rent, for\nmonthly rental) and it must be given at least two weeks and no more than four\nweeks after the first warning notice was served. The notice must be served in\nthe same methods as above and state the same information as the first notice.<\/p>\n\n\n\n This\nwarning contains the same information as the first two but it is served<\/strong>\ndifferently. It must be served by fixing it \u201cto some conspicuous part of the\npremises to which the tenancy relates<\/em>\u201d, such as the front door or window.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The\ntenant can apply to the county court to \u201creinstate\u201d their tenancy if they have\ngood reasons for failing to respond to warning notices. The tenant has 6 months\nbeginning from the day where the notice was served to go down this route. If\nthe court finds in favour of the tenant they may \u201cmake any order it thinks\nfit for the purpose of reinstating the tenancy<\/em>.\u201d<\/p>\n\n\n\n So, if your tenant applies to the court stating they couldn\u2019t 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 \u2013 one cannot know the likelihood of this happening or how a judge would rule.<\/p>\n\n\n\n Until the above becomes law, there is still no legal process\nfor regaining possession of the property without a court order (or confirmation\nfrom the tenant that the property has been abandoned). The above does, however,\nprovide a good process to follow if you suspect abandonment. It will mean that\nyou can provide evidence to the court to show that you have followed a\nreasonable process to contact the tenant.<\/p>\n\n\n\n If your tenant abandons your property and stops paying rent, your finances will be seriously impacted. Here at LettingaProperty.com<\/a>, we offer rent guarantee insurance with our Rent on Time<\/a> package. For just \u00a389 a month (inc VAT), we\u2019ll pay your rent every month, even if your tenant can\u2019t.<\/p>\n","protected":false},"excerpt":{"rendered":" Reading Time: <\/span> 12<\/span> minutes<\/span><\/span>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 […]<\/p>\n","protected":false},"author":2,"featured_media":11561,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[33],"tags":[54],"class_list":["post-6847","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-property-law","tag-ending-a-tenancy"],"yoast_head":"\nTenant\nabandonment and protection from eviction<\/strong><\/h2>\n\n\n\n
Claiming damages<\/h2>\n\n\n\n
Why does tenant abandonment happen?<\/h2>\n\n\n\n
What can landlords do when it comes to tenant abandonment?<\/h2>\n\n\n\n
Is there such thing as a tenant abandonment notice?<\/strong><\/h2>\n\n\n\n
First stage of notice<\/strong><\/h2>\n\n\n\n
Second stage of notice<\/strong><\/h2>\n\n\n\n
Tenant abandonment and leftover belongings<\/h2>\n\n\n\n
Tenant abandonment and the law of\nleftover goods<\/strong><\/h2>\n\n\n\n
The Torts (Interference with Goods) Act 1977<\/strong><\/h2>\n\n\n\n
Can I store or sell a tenant’s abandoned belongings?<\/h2>\n\n\n\n
Legal abandonment process<\/h2>\n\n\n\n
The Housing and Planning Act 2016<\/h2>\n\n\n\n
Regaining access<\/h2>\n\n\n\n
When can the abandonment process begin?<\/h2>\n\n\n\n
Don’t miss the fourth notice<\/h2>\n\n\n\n
Failure to respond to a tenant abandonment notice<\/h2>\n\n\n\n
\nIf you still haven\u2019t heard from any of the interested parties explaining\nwhether the property has been abandoned or not, you must issue a third warning.\nYou must serve this notice at least 6 days before the period of 8 weeks has expired.<\/p>\n\n\n\nTenancy reinstatement<\/h2>\n\n\n\n
Tenancy abandonment – a conclusion<\/h2>\n\n\n\n