What constitutes abandonment of a Rented property?
Abandonment is the voluntary surrender of a legal right, for example, an interest in land, property or a tenancy.
By virtue of S5 (2) Housing Act 1988 a tenancy can only be brought to an end by the landlord obtaining a court possession order or by a surrender or similar act by the tenant.
If a tenant has abandoned a let property then a landlord has a dilemma. If the tenancy has not been surrendered or legally brought to an end and the absent tenant was to return to the let property then the tenant could accuse the landlord of unlawful eviction. We have known tenants, although for housing benefit even claim they had the crown jewels in the let property which were now missing.
In this situation, it may either breach the terms of the landlords insurance or increase the premium due to the added risk to the insurer of covering an empty rental property.
Concern about the security of the let property?
Provisions should be put in place to allow a tenant a specified period of time to pick up their belongings. It is a landlord’s responsibility to safeguard any of the tenant’s belongings at the property. Landlords cannot simply throw the tenants belongings away and it is advisable that if a landlord is moving the tenants belongings, then a landlord should take photographs of the condition of the belongings before and after the move.
A landlord can change the locks of the let property if a landlord is concerned about the security of the property. A landlord may have a contractual obligation under their insurance policy to secure the let property. If the locks have been changed to the let property then the landlord should take all demonstrable steps to ensure if the absent tenant returns they are able contact the landlord and crucially have unfettered access to the let property.
Unsure whether the property has been abandoned?
If you are in doubt that the tenancy has been abandoned then you should consider the alternative ways of obtaining possession of the property. Ultimately the safest course of action in these matters is to always issue a two month. 21 possession notice under the accelerated possession procedure. Unfortunately, in the absence of certainty of abandonment a landlord should tread carefully and issue the ‘requisite possession notices’ accordingly.
There have been a number of cases where so called professional landlords have faked abandonment to deliberately entice or entrap a landlord into carrying out of what the courts will interpret as unlawful eviction.
Under S1 (2) Protection from eviction act 1977 it is an offence for any person to unlawfully deprive or attempt to deprive a “Residential Occupier” of the premises or any part thereof. There is a Statutory Defence if a landlord can prove that they believed the tenant have ceased to reside in the premises. The weakness for the landlord is that it is always a matter for the Jury to decide in a Crown Court case whether the Landlord’s actions were reasonable in all the circumstances. The preferred and always safest option is for the landlord to obtain a possession order.
What can a landlord do when a tenant abandons a let property?
The problem for landlords facing a dilemma of abandonment is deciding if it is abandonment or a case of flight due to rent arrears or other reasons.
If a landlord finds the tenant has left some of their possessions in the property, then landlords need to be aware that this in such circumstances a court may interpreted as “demonstrating an intention to return” and that the tenant was intending to return to the let property and continue residing in the property.
If the absent tenant does return, then this could mean the landlord may be sued for damages or may be prosecuted for unlawful eviction.
Date; 6th of February 2019