Abandonment - beware!

I was chatting this week to my joiner Steve. He was having a nightmare!

Steve had done most of the work on my new cookery school in Bakewell,so I'd seen alot of him over the past nine months. What I hadn't realised was that he managed a number of BTL properties on behalf of his wife. I knew Steve was into his Morris Dancing but not property management,  he had no idea of Property Hawk.

So now we'd outed our secret landlord lives to each other he went on to explain how they'd just had a second set of tenants leave without paying and he'd just been drafted in to change the locks.  Oh dear! I said.

Landlords classic mistake

Steve had made the classic landlord mistake.

He'd been getting hassle from the tenants over the dying days of their tenancy, who were behind with the rent.  When they suddenly dissapeared from the property he took it to mean they'd moved out / 'done a runner'. In his mind it presented the perfect opportunity for him to jump in and change the locks incase they decided to return. Wrong!

Disappearance doesn’t end the tenancy

Paradoxically, the disappearance of the tenants doesn’t actually mean the tenancy has ended. 

Welcome to the murky world of abandonment where nothing is as it seems!
Abandonment is the voluntary surrender of a legal right, for example an interest in land or property including a tenancy. 

However, the problem for landlords is that by virtue of the S5(2) of the Housing Act 1988 a tenancy can only be brought to an end by the landlord obtaining a possession order.

I know that this sounds crazy when you know that the tenant has basically ‘done a runner’, probably not paid the rent and possibly damaged  or taken property from the property. Justifiably many landlords would feel in this situation a moral right to get their property back. 

 Unfortunately, even if the tenant had packed their bags and left, the tenancy continued.  In fact it was an offence under the Protection of Eviction Act for a landlord to unlawfully deprive or attempt to deprive a “Residential Occupier” of the premises or any part thereof.  Any landlord convicted by the courts of this could then be sued for damages by the courts for illegal eviction including claiming financial damages from the landlord.

The danger for landlords

One remedy for tenants who have abandoned their rental property is to force their way back into the property including breaking the new locks.  Funny but this doesn’t happen very often.  I would have some respect for tenants who actively enforced their right to stay.  However, just as in Steve’s case the majority of tenants are not usually desperate to return to face any unpaid rents or damage they have left behind. 

But still, despite all this posturing over the moral high ground, the law is the law. 

As it currently exists any landlord with a property where the tenants have disappeared will still need to gain possession though issuing a section 21 or section 8 notice.

In most cases the section 21 notice will be quickest and gives the landlord a guarantee that the judge should grant possession on the expiration of the notice period. In issuing your section 21 notice  landlords should make sure that they use the correct one.  If the tenancy is still within it’s fixed term then you will need a section 21 (1) b.  If the tenancy has become periodic then you should use the section 21 4 (a). 

Both versions of the section 21 notice are free to download within our free property management software.

The landlords dilemma

The dilemma for many landlords whom face this situation is that even if they are convinced that the tenants have really disappeared; they would still need to wait around for several months needlessly whilst trying to get legal possession.  These are months where the landlord can’t refurbish the property, is unable to market it.

It could easily be a further 6 months of no rents paid on top of already taking a hit from the original tenant leaving without paying.

Abandonment

There are several indicators that suggest abandonment has occurred
•    the tenant stopped paying rent
•    the tenant leaves the keys to the property
•    the landlords attempts to contact the tenant or a relative have been unsuccessful
•    the neighbours have no knowledge of the tenant’s circumstances
•    the landlord can see through the windows of the residential investment property and is unable to see any sigh of the tenants possessions.

Abandonment options

The choice for landlords is a difficult one. 

Do they risk being sued by the absconding tenant or do they go through the longwinded procedure of obtaining possession of their property? 

One way a landlord could help themselves if they did decide to change the locks as Steve has done would be to provide a sign with details of where the tenant could get a new key in case they returned. 

However where the landlord encountered a professional scammer and particularly one where they have not returned their keys it would be virtually impossible to prove that the tenant had no intention to return. 

Landlords should be clear,  there is no legal basis for the act of abandonment overriding an existing tenancy. A landlord would be left trying to prove to a Jury should a case arise that you might have broken the law by changing the locks but at least you took all the necessary steps to mitigate against the harm done to the tenant if they should return.

In other words 'a kind and considerate ‘law breaker’!

Gumtree free but costly?

Going back to Steve’s current plight.  One thing that transpired from his predicament was that several of the recent tenants had come through Gumtree. Now I know that the website is free for landlords to use for two adverts per year but my experience with Gumtree has been exceedingly mixed.  I've found that I could get a lot of enquiries but the quality was often poor.  This is fine if you are prepared to sift through the chaff and carry out intensive credit checks and referencing on them. 

One full proof method that I would highly recommend is the requirement of the tenants to submit their last 6 or 12 months bank statements.  It transpires that Steve had not referenced the tenants either.  A definite NO NO!

Landlords live and learn

The reality for many landlords is that we are not professionals.  We have not trained, we have no  degree in 'landlording' or even taken a basic business course in many cases.  Sometimes our hearts get the better of us and we let our rental properties to prospective tenants because they seem nice decent people.  Unfortunately, not all of them are. 

So landlords need to learn to put in the appropriate checks into the selection process such as those I’ve mentioned above.  Good honest tenants who have nothing to hide will go along with it. 

The others – you don’t want!

Have you got a view on tenant abandonment or any other issue raised. 

Please email us your comments!

Ok
 
so a tenant, leaves a note saying we have left property, and does not pay last months rent in lieu of deposit, no forwarding address, and says in note, has put keys thro door of agent.
 
This happened to me, so are you saying if i dont change locks i still have to get court permission to evict? Nick

 We have a situation where the tenant did actually give notice but has since disappeared with trace leaving us out of pocket on several counts not to mention £600 worth of electricity. Her deposit of £450 is lodged with the My Deposits Tenancy Scheme as she lodged an objection to us retaining it. Here the rub: we cannot find her and so cannot obtain a CCJ so that we can get the deposit back. Having spoken to Tenancy Deposits they just keep repeating that they cant release the £450 without a court judgement and they insist we can get one without an address for the ex tenant. The court says we cant. Its looking like we have lost the £450 and so are even more out of pocket. Anyone with any advice please?
 
Ryhill Properties Ltd 

 The laws in this country are unbelievable. We had a tenant in a flat that was 2 months behind on the rent when I went around there banging on the door the police came around and told me I couldn’t go banging on the door to my own flat and that I needed a court order. As soon as they stop paying they are in breach of their contract you should be able to go in and change locks.
 
NJ

 Yes I have the only answer to it all and I'm afraid Propertyhawk.co.uk are not doing it so if they feel they cannot I will take up the challenge of this and many other unworthy dictative actions of our so called democratic government.
WE need an active organisation to take up all complaints of Landlord and associated groups to force the government to change their dictative robbing policies that simple feed the parasitic bureaucrats that dictate our live with over management. No more Mr police nice boy they don't listen to any of that nonsense. We must stand together and we must fight hard and real dirty if necessary.
for instance what if not dictative and dirty are a few of these:-
Charging V.A.T. on agency fees for letting! this is simply passed on and means V.A.T. on a place to live. If the general Public realised that I would hope they will be up in arms.
Charging Council Tax for empty properties! Look it up Council Tax is for the services used not to fill there pay packets and large pension funs.
What other business pays TAX before they make a Living wage?
The majority of Landlords are not dishonest why are we all treated so badly?
I for one am an enforced Landlord because I cannot sell because someone messed up the economy and no one can get a mortgage. So the Council still want their wages & pensions from Council tax and enforce it robustly even when they provide no services for those empty properties. Why in a so called democracy do we accept taxation without income??
I'm up for the fight and will put myself up for the first legal challenge on this one what do you all say?
If you try to follow every letter of the Law you would never get out of bed in the morning so why should we be intimidated in this manner?
Regards Richard.

Hi
Surely if a tenant has not given up a tenancy, just disappeared, you can serve a normal 1 month notice to the rented property.  the fact that they do not pick it up should not make it invalid? Paul

I'm afraid not Paul. For a start it's 2 months notice for a landlord and then the tenants could claim that they have not received it.  Have a look at the section on How to serve a section 21 notice for the correct way to serve legal notices.

The Editor

Dear propertyhawk and any readers of this comment:

We have faced this exact same dilemma but and this is the but we believe we have found a slight temporarily relief and this is

By the fact that the tenant doesn't pay his rent and disappears means we make no money therefore we can get free court fees
have tried this on several occasions and works you have six months to get your money back in if you've already paid

Even if you let the property do it anyway it is completely in at least three immediately file for court proceedings as soon as you discover the tenant has abandoned the property
(we mainly deal in HMOs and small self-contained flats)

Second scheme haven't tried this one but I cannot see why it shouldn't work

you EG the tenant agree to rent a room not the door or other big items your rent covers a lease agreement as such it is separated and soon as you stop paying the agreement a separate firm comes along and be possesses the front door

Evidence to show this could work
police looking for tenant kicked donw the door
tenant causing us problems anyway so we refused to fix the door he obviously wasn't good pace any money
tenant refused to stay in a room without a door
tenant moved
happy days

Moral of this tale tenant need a front door

Next one
the deeds of the property should not be the same as the landlord lets it as an example take my 90-year-old grandmother she is the official landlord and I am her ancient or because I happened on the property is irrelevant you have to take her to court and she has a landlord has no assets

For the next possible stages this lever section of any property empty and just moving and then declare you are a sitting landlord and can evict might easily

When a tenant starts a tenancy they sign a form agreeing to the following
I signify that I have left the property if any of the following actions are carried out by myself
non-payment of rent no furniture in the property will translate to in any language that I am no longer in charge of a property

Claim they was damaged smoke or other such life-threatening event use that as an excuse to gain access then declare the place to be a building site
and the health and safety regulations only people with a health and safety card I legally allowed to enter tenant returns and get him arrested for breaking health and safety law?? Never tried it might be a good one to try

I asked a judge to her face how do I know of the tenant has left and she replied only when the bailiff has said so

James

Good Morning

One of my properties is a detached house with a flat top & bottom.
The Freeholder has the bottom & I have the top, although I am in the process of buying the bottom.
The property is in 'Bad condition' and needs totally renovating (incl sound & Fireproofing, heating and window replacement).
The tenant (DHSS) in my flat owes lots of money has moved Cats & Dogs in, & despite promising me in Sept 2011 He was moving after Xmas
has now gone to Env' Health with pages of Issues that need dealing with.

I would very much appreciate some advice before making the wrong move.

If I do nothing will Env' Health condemn it & tenant will have to move or Council will have to re-house him (as long as it is not me)

Because He has now started this, am I still allowed to go thro' Eviction process.

Should I just talk to Env' Health & tell them 'How it is', + He owes money, moved animals in etc etc

Looking forward to hearing from you

Ric

The law on property abandonment is appalling.  Are any of our M.P.’s trying to get this law changed.  I would have thought many MP’s have property to rent out and would be quite keen to make this law much more fair.    This law was probably passed in the days off “Rackman” if you have heard of him and is now way out of date.   Could you get up a petition on line as this seems to work in some cases.
Regards
Maisie 

As a member of your site I was interested in the article below about abandonment.
 
My tenant has just disappeared 3 months into an initial 6 month tenancy agreement (using your template).
 
Third hand, I have been able to get a request to the 'tenant' requesting something in writing from them confirming that they have permanently left the property and that they are terminating the tenancy. As everything is paid up to date, I would be 'happy' to get this and cut my losses, provided that such a letter/email then allows me to take re-possession and start again (i.e. change the locks {as they still have keys at the moment} and try to find a new tenant).
 
Given the apparant difficulties for a landlord in an abandonment situation (per the article), would uch a letter/email be sufficient to enable me to legally treat the tenancy as terminated?
 
Thanks in advance.
 
Len

Hi Len,

A letter is certainly a firm indicator of the tenants intention to give up the tenancy.  However, the courts may interpret the fact that they have failed to give you back the key an indication that their real intention was to continue with the tenancy.  If you were to get a signed letter and the keys then that should give you pretty strong grounds.  But should the case go to court as often is the case it would be down to the interpretation of the individual Judge.  But as always I would recommend that you get expert legal advice on your situation before acting.  Good luck!

The Editor