Abandonment is when a tenant leaves the rental property (usually without notifying the landlord or agent) before the tenancy has ended.
Very often this occurs when the tenant owes rent and the tenant may or may not leave possessions in the property. When this occurs, abandonment is usually a major problem for landlords: although the tenant is in the wrong for many reasons, they still have a legal tenancy and can return and demand to take up residence again at any time, despite not paying rent.
Taking over an abandoned property is fraught with difficulties for the landlord and if not done in the correct way can land them into serious trouble - at worst, a criminal conviction.
When a tenant abandons a property part-way through the tenancy the landlord needs to be very cautious indeed:
- The tenant is legally entitled to return and take up residence again
- The landlord has a responsibility to the tenant to safeguard any belongings left in the property
The legal definition of abandonment is "the voluntary surrender of a legal right", for example, an interest in land or property - a tenancy. However, for a residential tenancy under English housing law, this is not strictly true. A tenant leaving while under contract, whatever its intention, has the right to return.
Unless you as the landlord are pretty certain of the fact that the tenant definitely intended to abandoned the tenancy, with no intention to return, then it is quite risky to take over the property.
Tenants sometimes leave their accommodation unoccupied for long periods in breach of their tenancy obligations, but intend to return. Alternatively they may only appear to have left early, before the end of their tenancy term, which is usually 6 or 12 months in the case of an Assured Shorthold Tenancy.
A 1997 court case resulted in the landlady receiving a very heavy fine for re-letting her flat, even though her abandoning tenant was in prison, committed for life. He pursued the case from prison and won. Be warned!
Insurers usually stipulate that they must be informed if the property is to be unoccupied for periods in excess of 30 days maximum, and this may increase the premium due to the increased risk in these circumstances. Unoccupied properties become targets for vandals and create nuisance complaints from neighbours, possibly involving the local authorities. Unoccupied properties are also vulnerable to occupation by squatters.
The tenant still has full tenancy rights, even if the rent has not been paid. Have you asked the neighbours? - get witness statements if you can. Have the tenant's belongings been removed? Has the tenant left the keys?
There may be perfectly logical explanations for why a tenant appears to have abandoned, though not for why they don't inform their landlord:
A landlord or his agent in this position has some difficult decisions to make:
1. What legal right has the landlord or agent got to re-enter the property?
2. If it is very obvious that the tenant has left for good, can the property be re-let?
3. What should happen to any of the tenant's possessions which may have been left behind?
4. What would be the consequences if the property is re-let and the tenant returns?
As a landlord or agent you need to gather together as much evidence as you can to support your case for abandonment.
Post a notice at the property stating your intention to inspect a reasonable time before entering. Check for possessions left behind, mail piling up, rotting food in the fridge, keys left behind, speak with neighbours.
1. Get a court order obtaining possession, or
2. Follow the procedure set out in the Housing and Planning Act 2016 which sets out a rather convoluted procedure for recovery if you suspect abandonment.
Never be tempted to to simply change the locks and remove tenants' possessions in such circumstances. If you have handled the tenancy application (tenant completed a comprehensive tenancy application form) correctly you should always have sufficient information to contact the tenant or a relative.
You need the agreement of the tenant that they have actually abandoned their tenancy rights, preferably in writing in the form of a letter or ideally deed of surrender. You also need the return of the keys - this is an important point as returning the keys is a clear indication of the tenant's intent. Try to get a witness to this.
If the tenant appears to have abandoned the property, but you have no written confirmation, important points are:
- Is the rent still being paid?
- Has the tenant left the keys to the property?
- Can you contact the tenant or a relative?
- Do neighbours have any knowledge?
- Are there tenant's possessions still in the accommodation?
If the above points taken together indicate abandonment and the property has been left in an insecure state, or you suspect internal appliances could present a danger to the property and/or neighbours, then, and only then, may you have a case for entering the premises and possibly fitting a secure lock. Otherwise give notice of inspection.
You should have a reliable independent witness willing to confirm the circumstances in writing, for example witnessing the possessions left behind as you take photos and make an inventory. You may also consider contacting the local authority's Tenant Relations Officer
Under no circumstance should you consider depriving the tenant of their rights to access. If in doubt seek expert advice on the specific case, and always seek the assistance of independent witnesses. If the tenant does appear to have abandoned the property but other evidence introduces doubt, or you cannot confirm this, you should always go through the correct procedure in the above Act or obtain a court possession order before taking over the property or re-letting.
Always check your tenanted property regularly, without interfering with or harassing the tenants, to make sure it is still occupied, as well as carefully monitoring rent payments. Also consider asking a neighbour to monitor tenants' movements for you.
Provide a weekly cleaning service within the tenancy which means that the condition of the property is also carefully monitored. Whilst in occupation, and for the duration of the tenancy, tenants have a "legal estate" in the property and a right to treat the premises as their own, within the terms of the lease - harassment also has serious consequences.
If you have to dispose of the tenant's belongings, follow the law relating to uncollected consumer goods covered by the Torts (Interference with Goods) Act 1977. The 1997 Act allows a landlord to sell goods left in a property if reasonable efforts to trace the tenant or owner of the goods fail.
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