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Is it necessary to bring eviction proceedings where a tenant has been sent to jail?

This post is more than 8 years old

March 27, 2018 by Tessa Shepperson

HMO HouseHere is a question to the fast track blog clinic from Richard (not his real name) who is a landlord.

I have a tenant who was sent to jail for 12 months on the 22nd of March 2018.

His assured shorthold tenancy runs out on the 29 of June 2018. I’m a Rent Smart Wales licenced landlord.

He has a room in a registered HMO. His sister has cleared his room of his personal belongings.

Is my best course of action to serve a section 21 to get the room back, or would you recommend a different course of action?

Answer

As you are aware, the fact that someone has been sent to jail does not of itself end the tenancy.

One way is to bring proceedings for possession, but this may not be necessary.

  • You may be able to agree an express surrender with the tenant or
  • You may be able to treat his actions via his sister as an ‘implied offer to surrender’

Surrender

An actual surrender agreement would be best. Can you contact the sister and ask her what the tenant wants? Point out that he is currently still a tenant and therefore liable for the rent but if her brother agrees in writing to give up the tenancy then you will re-let the property and end his liability.

If she can get a letter from him confirming this, or sign a letter you provide, then this will resolve the matter.

Implied surrender.

Implied surrender is where the actions of the tenant are inconsistent with an intention to continue with the tenancy – this is deemed as an implied offer to surrender which you can ‘accept’ by going in and changing the locks.

There are four main indicators of this:

  • Not living at the property
  • Not paying rent
  • Removal of all personal possessions and
  • Returning the keys

You tell us your tenant is no longer living there and his representative, his sister, has removed his possessions. But is he in arrears of rent, and critically – did she return the keys? She must have had them to get in and clear his stuff.

If the rent is paid up, then you should not do anything.

Otherwise, it may be worth taking a chance (although contact the sister, if you can, and ask her for the keys).  It is arguable that a relative just clearing the room may be sufficient to imply surrender where the tenant is going to be in jail until long after the end of the fixed term.

And finally

After all – what is the likelihood of the tenant coming out of jail in 12 months time and bringing a claim against you for unlawful eviction? Bearing in mind that you would have the right to offset any rent arrears against any award for compensation that might be made.

These are the things you need to consider and weigh up in your mind before making a decision about what to do.

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Filed Under: Clinic

Notes:

Please check the date of the post - remember, if it is an old post, the law may have changed since it was written.

You should always get independent legal advice before taking any action.

Reader Interactions

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Comments

  1. Skeptic Dutchman says

    March 27, 2018 at 12:40 pm

    If a person is sentenced to 12 months in custody is not there a chance that he might be out after 6 months?

  2. Bob says

    March 27, 2018 at 4:17 pm

    A probability, indeed. But it probably doesn’t matter under the circumstances.

  3. Peter Jackson says

    March 27, 2018 at 7:07 pm

    The tenant not living at the property when he has been sent to jail is not a voluntary act on the tenant’s part so it would seem a bit iffy to use it to imply surrender.

    Asking the sister seems the best option, otherwise you would have to wait to see if he makes he next payment.

  4. Lawcruncher says

    March 28, 2018 at 9:51 am

    I agree that arguing surrender is a bit tricky, especially if there has been no direct communication from the tenant.

    Perhaps an alternative route, assuming the right to re-enter has arisen, is to ask is whether the tenant has ceased to reside at the premises so that the landlord can lawfully re-enter without a court order. However, there is still a bit of a probem if the reason for not actually being in the property is involuntary.

  5. Lewis says

    March 28, 2018 at 10:06 am

    Is going great to prison really involuntary? I voluntarily avoid prison all the time by not comic ting crimes. If anything you have to volunteer to go to prison and there is a high bat for acceptance.

  6. Lawcruncher says

    March 29, 2018 at 9:44 am

    “Is going great to prison really involuntary?”

    I think it has to be. Anyway the point is not so much whether the tenant left voluntarily, but whether he has ceased to reside at the property. That probably comes down to intention. The intention has to be communicated to the landlord expressly or implied from the tenant’s actions.

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The purpose of this blog is to provide information, comment and discussion.

Please, when reading, always check the date of the post. Be careful about reading older posts as the law may have changed since they were written.

Note that although we may, from time to time, give helpful comments to readers’ questions, these can only be based on the information given by the reader in his or her comment, which may not contain all material facts.

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