It is rare, but not unheard of, for a tenant to simply up sticks, leave a property and stop paying rent, leaving all of their possessions behind. This can be really problematic for a landlord as, despite the tenant no longer residing in the property, or paying rent, they are still the legal occupier of the property and the landlord cannot simply go into the property, remove the possessions and re-let it. The tenant still has legal protections under the Protection From Eviction Act 1977 and the Housing Act 1988 and the landlord has to follow certain steps before regaining possession.
What is abandonment?
Abandonment is when a tenant moves out of a property, before the tenancy comes to an end, without giving due notice and stops paying rent. Within the law it also means that the tenant voluntarily surrenders their legal right to occupy the property. They are, though, completely separate things and the former does not always equal the latter.
Is the property abandoned?
The first thing a landlord has to do is ensure that the property has in-fact been abandoned. There might be some mitigating circumstances as to why the tenant is unreachable and not paying rent; they might have a family emergency, have had a medical emergency themselves or even have been taken into legal custody by the police. The landlord has to do everything in their power to try and locate the tenant via previous addresses, talking to neighbours, local authorities or even trying to contact the tenant’s relatives. All these efforts and any statements from anyone spoken to, should be logged as evidence. If the tenant is located then they will need to confirm in writing that they have abandoned the property and return the keys. Once this confirmation has been received the landlord can legally enter the property. If the landlord cannot locate the tenant, then they are still not allowed to enter the property unless there is an emergency, an immediate danger to the property, the surroundings or people such as:
- Fire
- Insecure condition of the property structure
- Gas leaks
- Flooding
- Reason to believe a crime is being committed
Any landlord entering a property on these grounds should ensure that they have an independent witness with them when doing so and the entry should be fully documented or videoed.
What can a landlord do if the property is abandoned
Under the Protection from Eviction 1977 Act a landlord may start to take action if they have reasonable grounds to believe that the residential occupier has ceased to reside in the property, even then, ultimately a court order is needed for the landlord to gain possession, so what are the steps to take?
- Build up a file of evidence to prove that believing the property is abandoned is reasonable:
- Rent statement showing unpaid rent
- Notes of discussions with friends, neighbours or family
- Copies of emails sent and logs of phone calls made to all known email addresses and phone numbers
- Details of checks with utility providers, council tax office
- Copies of letters sent to all interested parties addressed to either the property or any other known addresses such as address for deposit payer, guarantor, occupier, tenant, family members, previously known addresses and forwarding addresses. These are covered in more detail below
Can a landlord gain entry if the property is abandoned?
One way for a landlord to gain entry, if not in possession of a property, is to send formal written notice of an inspection to the property. In the circumstance that a landlord believes the property to be abandoned and has given the tenant the required access notice with no response the landlord can enter the property. It is still advisable to have an independent witness present to log the entry. The landlord can then inspect the property to check things like post or food remains to gain further evidence of abandonment.
How can a Landlord regain possession?
Under the housing and planning act 2016 part 3 sections 57 to 61 a landlord can legally regain possession if the following conditions are met:
- The tenancy relates to premises in England,
- The unpaid rent condition is met
- The landlord has given the warning notices required, and
- No tenant, named occupier or deposit payer has responded in writing to any of those notices before the date specified in the warning notices.
What is the unpaid rent condition?
For the rent to be classed as unpaid under the act, the following conditions must be met:
- If the rent is payable weekly or fortnightly and at least eight consecutive weeks’ rent is unpaid,
- If the rent is payable monthly and at least two consecutive months’ rent is unpaid,
- If the rent is payable quarterly and at least one quarter’s rent is more than three months in arrears, or
- If the rent is payable yearly and at least three months’ rent is more than three months in arrears
What notices are required?
- A notice given personally to the Tenant, named occupier and deposit payer. If this is not possible then:
- leaving it at, or sending it to, the premises to which the tenancy relates,
- leaving it at, or sending it to, every other postal address in the United Kingdom that the tenant, named occupier or deposit payer has given the landlord as a contact address for giving notices,
- sending it to every email address that the tenant, named occupier or deposit payer has given the landlord as a contact address for giving notices, and
- in the case of a tenant, leaving it at or sending it to every postal address in the United Kingdom of every guarantor, marked for the attention of the tenant
The notices should contain the following:
- that the landlord believes the premises to have been abandoned,
- that the tenant, a named occupier or a deposit payer must respond in writing before a specified date if the premises has not been abandoned, and
- that the landlord proposes to bring the tenancy to an end if no tenant, named occupier or deposit payer responds in writing before that date.
The date given in the notice must be at last 8 weeks from when the first notice is served. This first notice can be sent before the unpaid rent condition has been met. The timing here is critical as a second notice, which is legally required, cannot be sent until the unpaid rent condition has been met, but it cannot be sent less than 2 weeks after the first notice, but, more importantly cannot be sent more than 4 weeks after the first notice. A third notice must then be given at least 5 days before the date specified in the first notice. This third notice must be given by fixing it to a conspicuous section of the property. If there is no reply within this 8 week period the landlord can then serve a final notice stating that the tenancy has been brought to an end on the day on which this final notice has been served.
Once this has all been done, the landlord can gain re-possession of the property assuming there have been no responses and no further rent has been paid. A tenant may, however, ask the courts to re-instate the tenancy if, within 6 months of the final notice being given they can prove to a court that they had reasonable grounds for not responding to the notices.
What about the tenant’s possessions?
Even after the landlord has re-gained lawful possession of the property, they cannot simply throw out any possessions left by the tenant. Under the Torts (interference with Goods) Act 1977 the landlord has to go through due process before either removing or selling the tenant’s possessions. The Act requires that the landlord gives notice to the tenant that they will dispose or sell the possessions. The landlord must make it clear which option they are looking at. This notice must be given to the tenant personally or to the tenant’s current address or sent to their last known address. If the tenant does not, in a reasonable period collect the goods, then the landlord can either sell or dispose of them.
Tenants abandoning a property is not a simple matter to deal with and, even though rent is not being paid and it might seem that the tenant is no longer resident in the property, they still have the legal right to occupancy. A landlord needs to follow very strict processes to regain possession of their property and we would advise any landlord in this situation to seek professional advice.
