Abandonment of rental property is a more common problem than many landlords believe. Here we examine the legalities of tenant abandonment, and what action to take when dealing with an abandoned property.
Research from the National Landlords Association (NLA) suggests that over a third of landlords have dealt with abandoned property in the past. The problem is most acute in the North of England, where just over half of landlords have experienced abandonment. But even in the South, three in ten respondents report that they have had tenants abandon their properties.
In legal terms, abandonment of a property is the voluntary surrender of possession with no intention to reclaim it.
An empty property does not always suggest a genuine case of abandonment. According to the government’s analysis, the courts resolve just 1,750 abandoned tenancies each year.
Abandoning a property does not end a tenancy
An empty property means lost rental income. If you believe that your tenant has abandoned your property, you will likely wish to take immediate action. Your instinct may be to change the locks, remove the tenant’s belongings and take steps to re-let the property.
But the original tenancy is still in effect. Until it ends, the original tenant still has the legal right to resume occupation. A tenancy only ends when:
- the landlord and tenant both agree for the tenant to ‘surrender’ the tenancy;
- the landlord or tenant gives notice under the terms of the agreement; or
- the landlord evicts the tenant through the correct legal channels
Preventing re-entry to the property may constitute unlawful eviction under the Protection from Eviction Act 1977.
True abandonment constitutes ‘implied’ surrender, which is when the tenant’s actions are inconsistent with in intention to continue the tenancy. In the case of genuine surrender, a landlord will not need a court order. But implied surrender can be difficult to prove.
You should first make every effort to contact your tenant and find out where your tenant is. There are many good reasons that someone might leave their property empty without warning. Your tenant could be hospitalised, in prison, or dealing with a family emergency.
Note: Remember to keep a record of your attempts to contact your tenant. You may need to evidence your attempts at a later date.
If you cannot get in touch with your tenant, and still have good reason to suspect abandonment, you should serve notice under section 21 of the Housing Act 1988.
Next, write to your local authority’s Tenancy Relations Officer to advise them that you believe your tenant has abandoned your property. Your goal at this point is to gather as much evidence as possible of implied surrender.
Speak to the following people. Make notes of the dates and times of conversations and the names of people you speak to. Try and get as much in writing as possible.
- Referees. Your tenant’s employer will be able to confirm if your tenant is still at work, on leave, or absent without permission.
- Guarantors. A friend or family member might be able to account for your tenant’s whereabouts.
- Neighbours. Neighbours may have noticed the tenant’s absence, spoken to them about a move, or seen them actually pack up and leave.
Entering an abandoned property is tricky. As the tenancy is still in effect, the tenant is still entitled to quiet enjoyment of the property. This means that you cannot enter without the tenant’s permission.
Section 11(6) of the Landlord and Tenant Act 1985 gives a landlord the right to enter their property to discharge their repairing obligations. So you will need to have good reason to think that the property is abandoned and in an unsafe condition. You will also need to give at least 24 hours’ written notice, as per standard procedure.
If your tenant is not in occupation, they will of course not respond to the notice. But nor will they deny you permission to enter. Whether you can still enter at this stage depends on other circumstances. Tessa Shepperson of www.landlordlawblog.com, an experienced solicitor and expert in landlord/tenant law, believes that it will be safe to enter if:
- the tenant has not objected in the past, in which case there will be a ‘course of dealing’; and/or
- the tenancy agreement makes it clear that you will need to gain access for inspections
If you do enter the property, take a camera and a copy of the inventory form. You may also wish to take an independent witness. Take dated photographs of everything that may evidence abandonment, such as a build-up of mail on the doormat or expired food in the fridge. Are there toiletries in the bathroom? Clothes in the wardrobe?
Compare the belongings left in the property with what’s listed on the inventory form to determine how much the tenant left behind. If the tenant has removed their belongings and left behind their keys, you can be quite sure of implied surrender.
If you are sure of abandonment
If you are in no doubt that your tenant has left for good, you can repossess the property. Advise your local Tenancy Relations office in writing that you plan to do so.
You should only take that route if implied surrender is unequivocal. It is an offence to repossess a property under any other circumstances. Instead, you will need a court order as normal.
Can you leave an abandonment notice?
Landlords and agents sometimes leave abandonment notices fixed outside the property. The notice advises the tenant that the landlord has changes the locks and gives the tenant 14 days to return and resume the tenancy. They may include a 24-hour number that the tenant can call.
Landlord Law’s Tessa Shepperson considers abandonment notices unnecessary. They have no legal standing, so if the tenant has not surrendered the tenancy, service of a notice will not make their eviction legal. The only route to repossession remains through the courts.
If the tenant has surrendered the tenancy, then you can repossess without the use of an abandonment notice. So a notice is redundant in either case. Furthermore, it may signal to burglars or squatters that the property is unoccupied.
Prospective legislation in the Housing and Planning Act 2016 will allow landlords to more easily end a tenancy when a tenant abandons a property.
In the case of abandonment, a landlord will be able to serve notice under section 57 of the Act. A section 57 notice will end a tenancy on the day of service if:
- a certain amount of rent is unpaid in accordance with section 58 of the Act;
- the landlord has given three warning notices prior to service in accordance with section 59 of the Act;
- no tenant, named occupier or deposit payer has responded to any of the notices
Section 57 gives some credibility to abandonment notices, but they must be served at a specific time and in a specific manner. Under section 60 of the Act, a tenant may ask the county court to reinstate the tenancy if they had good reason for not responding to the three warning notices.
HPA 2016 received royal asset in May 2016. However, sections 57–63 have yet to be brought into force by a commencement order. Thus, surrender or traditional eviction remain the only routes to repossession of an abandoned property at present.
Be aware that when these sections do become law, they will only apply in England.
Abandonment is costly for a landlord. Tenants are often in arrears with rent when they abandon a property, and rent will continue to be unpaid while the landlord goes about reclaiming the property. There is the cost of court proceedings if eviction is necessary, and cleaning and re-letting the property also costs money and time.
Some landlords take out rent guarantee insurance policies that cover against loss of rent from arrears and void periods. Some rent guarantee insurance policies also cover against loss of rent from abandonment. Check the terms of your policy to make sure you have the cover you need.
In some cases, a tenant might not only abandon the property, but also steal some of the landlords’ contents on the way. Most ordinary contents insurance policies consider theft with no sign of forced entry an act of deception rather than true theft, and do not cover it. A dedicated landlords insurance policy, however, should cover against tenant theft.
Also remember to thoroughly vet your tenants. Doing so can limit your risk of letting to a tenant who may stop paying rent and abandon your property.