When I started acting for landlords I had never heard of abandonment notices. I suspect that most lawyers reading this won’t have heard of them either. So far as I am aware, they are not mentioned in any of the law books.
However they are a well known tactic among landlords and letting agents. What are they?
What is an abandonment notice?
An abandonment notice is a notice fixed to the outside of premises which a landlord believes to have been abandoned by his tenant. It gives notice that the locks have been changed and informs the tenant that should he return within a specific period of time (e.g. 14 days) he can obtain the keys from the landlord, but that if he fails to return during that time, the property will be repossessed.
It is understandable why landlords and agents want to use these notices. Court proceedings for possession can be expensive and time consuming. While they are ongoing, landlords are losing rent. Posting a 14 day abandonment notice gives the illusion of doing something legal and means that they don’t have to pay legal costs to those pesky solicitors.
But is an abandonment notice legal?
Personally I think they are not only a complete waste of time, but also a risky course of action. Why?
Well, most importantly, the Protection from Eviction Act 1977 makes it clear that it is both a civil wrong and a criminal offence to repossess a property other than via a court order for possession. So any landlord who repossesses without one is always taking a risk.
There is a legal rule which states that if the conduct of the tenant is inconsistent with an intention to continue with the tenancy, this will be considered to be an implied surrender of the property, which the landlord can accept by going in and changing the locks. However it is the action of the tenant which creates the implied surrender, not the action of the landlord in posting a notice on the door.
If a tenant has genuinely abandoned the property, if it really is an implied surrender situation, then an abandonment notice is unnecessary. The landlord can repossess immediately. The usual signs of a genuine abandonment are removal by the tenant of all his possessions and, most importantly, leaving the keys behind. Giving up the keys is normally considered to be a symbol of giving up possession of the property.
However if the tenant is just not there for a long time, this does not necessarily mean he has abandoned the property. He could be on holiday, he could be in jail or he could be in hospital. None of these situations entitle the landlord to recover possession without a court order.
If a tenant comes back from being hospitalized for six weeks after a nasty car accident, to find that his property has been repossessed by his landlord, the fact that an abandonment notice was posted on the door for 14 days will not, so far as I can see, afford any defence whatsoever to a claim against the landlord for unlawful eviction, compensation, and (if the property has not been re-let) an injunction ordering the landlord to let him in again.
How can the tenant be expected to see an abandonment notice if he is laid up in hospital?
There is another problem with these notices. If they are fixed to the outside door you are telling people that the property is empty. Which might be something you would prefer burglars and potential squatters not to know about.
Is there ever any point in using an abandonment notice?
In my view it will not afford any defence to a civil claim against the landlord for unlawful eviction. However unlawful eviction is also a criminal offence. It is just possible that leaving a warning notice on the door could afford some sort of defence to a prosecution for unlawful eviction.
However I have not been involved in any prosecutions myself – if any Local Authority prosecutors are reading this, please can you leave a comment?
If abandonment notices are ever used, they should only be used on internal doors, perhaps for a room in a shared house. Don’t invite problems by putting them on the external street door. And bear in mind that they are probably a complete waste of time.
Have you used an abandonment notice? Have you any views on their legality? Are you aware of any cases where they have been used successfully as a defence to either a civil or a criminal claim for unlawful eviction?