In the normal run of things a tenant will notify you when they are going, you will have a checkout meeting and things will be dealt with in an orderly manner.
However, sometimes a tenant will just move out. What then? Can you move in, clear up and re-let the property?
The answer is sometimes you can and sometimes it would be unwise. The problem is that if you go in and change the locks before your tenant has actually given up his tenancy, this is unlawful eviction.
And unlawful eviction is both
- a criminal offence – meaning you can be prosecuted (normally by the Local Authority – the Police don’t do this work) and
- a civil wrong – meaning that your tenant can sue you for compensation
In both cases, if you had reason to believe that the tenant had finally vacated you should have a defence. This is why many landlords put an ‘abandonment notice’ on the door of the property in this situation.
However, although this may help you defend a prosecution, it is not going to help much with a civil claim. Because if your tenant was laid up in hospital after a motor smash or had gone up to Scotland to visit his great aunt Mary, he won’t have seen it!
In civil law there is this concept of an ‘implied surrender’ of a tenancy – if the conduct of the tenant is inconsistent with an intention to continue with the tenancy, then this will be deemed to be an ‘offer to surrender’ which a landlord can ‘accept’ by going in and changing the locks.
So how do we know when this will apply? Here are four signs to watch out for:
First – has the tenant said anything that would indicate that he was leaving?
If he told you in January that he would be moving out at the end of March but then you heard nothing further from him, but discovered that the house was empty when you visited it in April, it would be reasonable to assume he has moved out. Depending on the following three points though.
Second – has he left the keys behind?
This is perhaps the most important sign. Giving up the keys is the symbol of giving up possession.
So if the keys have been returned you can usually assume that it is safe for you to go back in.
Third – has he left any possessions behind?
If all possessions have been removed, this is a sign of giving up possession, particularly if the keys have also been returned.
If possessions remain then landlords should consider whether they should play safe and wait until they can obtain an order for possession.
Fourth – are there any rent arrears?
Unless it is very clear indeed that the tenant has given up possession, you should NEVER repossess a property while the rent is being paid. If the tenant wants to leave the property empty that is a matter for him.
However, if the tenant has stopped paying rent, then this is another sign that he may have given up possession.
It will also make it safer for you to repossess, as if the tenant were to sue you for illegal eviction, any award he got would be offset against your claim for unpaid rent.
However, you need to be careful, and remember that tenants ARE legally entiteld to remain in a property when they are in arrears of rent, until such time as you can evict them through the courts.
Finally
Finally remember that it is not unknown for dishonest tenants to make it appear as if they have moved out, to entice landlords to repossess so they can then sue them for compensation. So you always need to be very careful in this situation.
