Shergroup enjoys access to many legal articles and opinions connected to its heritage services to enforce court judgments.
Our community includes many lawyers at various stages in their careers, and when they work with our TEAM, we like to think we are a sounding board for some of the issues they face.
In recent weeks we have been asked many questions by property lawyers and landlords themselves on how to manage tricky situations because of the Coronavirus restrictions on eviction and repossession of property.
One such situation has been that of abandoned property – can a landlord instruct Shergroup Enforcement Agents to enter peaceably and take back possession?
The answer is a tentative YES because the commercial lease had come to an end, and the tenant had vacated in that situation.
As in many legal problems a case will turn on its own individual facts, so we take each issue put to us as an individual “exam question” and look for the best possible answer. We give this to our professional client to evaluate and decide if it fits their own position. As a provider of enforcement services – we guide – we do not advise!
That said the issue of abandoned property got us thinking. This will be an increasingly critical issue in the months ahead for all the reasons we understand. Commercial and residential tenants are going to want to walk away from tenancy obligations they can no longer afford.
This will leave landlords with a seemingly empty property and the problem of bringing the lease to a tidy end.
A landlord can be lulled into a false sense of security by thinking that as the tenant has vacated the property and abandoned its obligations, then the landlord can, in turn, abandon its obligations and take back possession. If only it were that straightforward!
Can A Tenant Abandon a Tenancy?
It seems not. Tenants cannot just walk away from their tenancy obligations. They have to reach some form of agreement with the landlord if they want to surrender their lease/tenancy and leave themselves in a tidy position. In the absence of such an agreement, they remain fully liable for the rent and other obligations under the lease/tenancy.
What Happens If My Tenant Surrenders the Keys?
Where a tenant hands back the keys to a landlord, and the landlord willingly accepts them, this might be construed as a form of surrender. Legal advice should be sought regarding the landlord’s particular situation and whether a surrender in this situation has occurred.
The tenant does not hand back the keys, and the landlord does not want to accept a surrender of the lease, then practically the landlord should then return the keys to the tenant or write to the tenant to set out on what basis the keys are being held.
Evidence of sending this communication should be kept ready to hand so a tenant cannot argue it was never received. If sending by email always add a “delivered” and “read” receipt to email communications of this importance.
What About My Tenant Who Has Done a “Moonlight Flit”?
There will be scenarios where the tenant has done a “moonlight flit”. There is no communication from the tenant to the landlord as to what is happening. Still, the landlord is fairly sure that the tenant simply cannot meet the rental obligations and has decided to walk away from the tenancy.
In this situation, the landlord needs to re-let the property with certainty that the previous tenant has definitely abandoned the property and will not be coming back. Depending on the type of tenant, here is what we think the landlord can do
For Commercial Property:
If a commercial tenant walks away without communicating its intent to abandon the lease/tenancy, then the landlord’s normal remedy would be to forfeit the lease.
However, forfeiture for non-payment of rent is unavailable until after 31 March 2021, and that is assuming the Government does not extend the regulations made under the Coronavirus Act 2020 Sections 82 and 83.
Just as a reminder, a landlord who breaches the COVID-19 regulations will find itself on the wrong end of an injunction or a claim for damages if in fact, it turns out the tenant wishes to return to the premises. The phrase “between a rock and a hard place” comes to mind for landlords in this situation.
Forfeiture does, of course, remain available for breaches other than non-payment of rent or other sums due under the lease.
Landlords have been using Shergroup’s process serving services to serve notices under Section 146 of the Law of Property Act 1925 in the second half of 2020, as a precursor to forfeiting a commercial tenancy then instructing us to attend to carry out the forfeiture.
We have not yet met any resistance or difficulty.
For landlords of mixed-use premises, i.e., pubs and shops with flats above, the option to forfeit the commercial premises based on taking back possession of the whole including the residential premises is, to say the least, dicey.
No one wants to be on the wrong end of a criminal action taken under The Protection from Eviction Act 1977, which safeguards residential tenants from unlawful eviction.
For Residential Premises
The bottom line in dealing with residential premises is that residential tenants enjoy the full protection of the law from unlawful eviction under The Protection from Eviction Act 1977.
This important safeguard makes it a criminal offence for a landlord to evict residential occupiers (which goes wider than the tenants themselves to include occupiers) of premises without a court order, or an agreement with the tenant to repossess the property.
So, when dealing with wanting to repossess empty residential property, a landlord will need to express written agreement from the tenant, or a court order granting possession back to the landlord.
A landlord could take the risk of repossessing residential premises but will want to ensure that it had sufficient evidence to support its belief that the premises were empty. In emergency situations, the risk may be unavoidable, but the landlord should ideally be accompanied by a witness who can verify the entry’s purpose.
A Lifeline to Landlords with Abandoned Property
A lifeline to all this guesswork is on the horizon for landlords. The Housing and Planning Act 2016 Sections 58 to 61 (which is waiting to come into force) sets out a process for landlords in England to follow in cases where they suspect a residential property has been abandoned.
The new legislation provides a process for a landlord to follow where property appears to have been abandoned.
Landlords will be able to avoid the need to go through the standard Section 8 or 21 procedures under the Housing Act 1988, and instead can serve notices as part of a process to allow a property to be re-let without the need for a court order.
Unfortunately for landlords, this legislation is still waiting to be enacted and the unwelcome arrival of the pandemic has probably slowed its arrival rather than progressing it.
Practical Pointers on Dealing with Abandoned Property
From our research and experience, we can share a few pointers with you on managing your property portfolio in these uncertain times: |
- Update all your tenant contact details. You should have their current mobile/email address on your phone or device and in your finance systems! If you cannot find someone, you are looking for, Shergroup offers a tracing service to find anyone both in the UK and further afield. Click this link to instruct Shergroup on a trace in the UK – https://www.shergroup.com/investigation-solutions If you do not want to invest in a trace be your own detective and use the usual social media platforms to look for your tenant and what they are up to!
- In sending any communication to a tenant make sure you record the sending and delivery of the communication – make this standard practice even if there is no hint of a financial problem.
- Check-in with tenants to see how they are doing and what are their intentions – we also offer a mediation service for landlords and tenants who want to deal with their issues in a controlled environment – send a message to [email protected] if you are interested in hearing more about mediation services.
- If surrender is better than hassle grasp that nettle and agree on terms with your tenant – do not forget to ask for the return of all keys.
- Where a tenant is not contactable and does not respond to messages, the landlord must tidy up the tenant’s position, so there is no risk of being sued
- If a tenant relocates abroad (which often seems to be to Spain at least pre-Brexit), then the landlord needs to take possession lawfully by issuing a possession claim. If this happens, a landlord should check the lease to see if it contains an address for service in England and Wales and/or a requirement to keep the landlord notified of any change of address. If there is no address for service in England or Wales, but an address is known then the landlord will have to take steps to serve proceedings under CPR Part 6 for the tenant’s new location, allowing the necessary number of days for foreign service
- Any claim for possession should seek the Court’s permission to transfer any final order to the High Court for enforcement under Section 42(2) of the County Courts Act 1984 – which will cut out the delays of trying to enforce using county court bailiffs.
- Finally, if you think your abandoned property has been squatted then you can issue an Interim Possession Order (within 28 days of finding out your property has been squatted) – we can assist you with this application if you find squatters in your property and we can evict PERSONS UNKNOWN under a county court or High Court Order for Possession.
My Tenant Left Goods at The Property – Can I Dispose of Them?
The answer is not straight away. Again, landlords have to follow a process to remove goods left on a property by a former tenant or any third party. The situation should be managed by the landlord arranging for an inventory (preferably photographic) to be taken of the goods in the property.
The inventory should be served on the tenant with a Torts Notice which allows the tenant the opportunity to collect the goods within so many days before they are disposed of (see The Torts (Interference with Goods) Act 1977.
Can I Secure the Property Once the Tenant Has Been Evicted?
Yes, you can, and we encourage you to do this straight away. In our experience, a property is vulnerable to further trespass for up to 48 hours after a tenant is evicted. So, arrange for your property to be secured as soon as the eviction is completed.
We can help you arrange to change locks, install alarms, and even clean up the inside of any property where eviction has taken place.
If the property is to be left empty for some time, then screening/CCTV/mobile patrols are all possible to keep the property monitored and free of trespassers. If the property is to be re-let, we can provide a service to clean it, and sanitize it from pests and sharps.
Landlords should never take it into their own hands to remove any type of tenant unless they are clear in their understanding of the law, or have taken legal advice. It is our opinion that landlords of residential property should NEVER evict a tenant without a court order.
Suppose the tenant agrees to relinquish possession of a residential or mixed-use property. In that case, legal advice should be taken to ensure the landlord is fully protected in agreeing to the tenant’s request.
Shergroup can help on many fronts with the repossession process, so please contact us to find out more on what we can do to aid your process. We are available on 0845 890 9200, and you can live chat with us on our website at www.shergroup.com
Author: Claire Sandbrook, LLB (Hons), FCICM
If you need a section 8, 21 or need to go to court then contact Landlord Advice UK on 020 3903 2000. For bailiff work contact Shergroup.
Shergroup and Landlord Advice UK are service providers to The British Landlords Association members. The British Landlords Association is a free national landlords association, the 2nd largest landlord association in the UK. Join us today for free!