In this first part of my Landlords A-Z, I look at abandonment.
This can be a real problem for landlords – have their tenants really run off and left the property forever, or are they going to come back again?
And in particular – can the landlord go in, change the locks and re-let to another tenant?
To answer this question, we need to turn to the concept of implied surrender.
As you probably know – a landlord and a tenant can always agree to end a tenancy. This is known as surrender.
In law there is also this concept of ‘implied surrender’. This is where the conduct of the tenant is incompatible with the intention to continue with the tenancy. This is then deemed to be an implied offer to surrender, which the landlord can accept by going in and changing the locks.
Now you have to be quite careful with this, as if the tenant has just not been at the property for a while – perhaps because he has had an accident and is in hospital, or is staying with relatives in Scotland – then that does not mean the landlord can go in and change the locks willy nilly.
Evidence of implied surrender
There has to be a real and genuine reason for the landlord to believe that the tenant has moved out permanently And this has to be more than the fact that the tenant has not been seen there recently.
In my mind, you can only really repossess with confidence if
- the tenant has moved all his possessions out, and
- left the keys behind.
If you repossess in any other circumstances you risk the tenant coming back and bringing a claim for compensation for illegal eviction.
In particular leaving the keys behind is symbolic of giving up possession and you are always at risk if you change the locks when the keys have not been returned. (Note – see also my article here)
For example the fact that the tenant has not paid rent for a while and the neighbours say they haven’t seen him recently, is not enough.
Even if the tenant has gone to prison, that is not enough. They may want to come back to the property after they are let out.
The only safe solution
So what do you do if you think the tenant has gone, but he still has the keys and there is still stuff in the property?
The only safe way to deal with this is to get an order for possession at the local County Court. And even if you get an order for possession, you won’t be totally safe unless you repossess using the court bailiffs (or High Court sheriffs).
Even if the tenant has died, that does not end the tenancy – it will pass to the tenants personal representative and then to his or her heirs. You need to speak to them and see what they want to do about the tenancy.
Assessing the risk
Sometimes it will be safe for landlords to repossess and sometimes it will not.
If the keys have not been returned and/or there are things still at the property, it will always be a bit of a risk. It is up to the landlord to assess this risk and consider whether it is worth taking. Sometimes it clearly will be. Other times it will not.
But it will always be a risk.
Landlords often put abandonment notices up on the door of a property, believing that this will render then safe from claims if they repossess 14 days later.
My answer to this is, how is the tenant supposed to know about a notice pinned to his flat door, if he’s in hospital after a hit and run accident?
Personally I think they are worse than useless – they won’t protect against a claim by the tenant based on unlawful eviction, but they WILL advertise to potential squatters and burglars that the property is empty.
Its just possible that they may protect against a criminal prosecution but so far as I can see, thats all.
Next week – B.
NB If you need to evict your tenant click here.