Tread cautiously with abandoned property – Paul Shamplina

 

Tenants can choose to abandon a property for several reasons. Whatever the reason, if they leave the property without giving notice to their landlord, they would usually have committed a breach of tenancy.

However, it is important to note that there is a difference between the tenant surrendering their tenancy and abandoning the property. The tenant has abandoned the property when they leave without giving any notice to the landlord that the tenancy is being surrendered. So, if the tenant hands back the keys to the landlord, it is not a sign of abandonment, but surrender of tenancy.

Most tenancy agreements stipulate that a tenant must not leave the property unoccupied for certain amounts of time without informing the landlord; with most ASTs, this is usually two weeks. There are several
reasons why it is important to include this clause in the tenancy agreement: unoccupied properties are targets for squatters and vandals. Insurance policies demand that a property is not left unoccupied for periods longer than two weeks (or thereabouts, depending on the policy) for that very reason and it is likely that a policy would be invalid if a property was abandoned.

Given the potential implications of abandonment, it is paramount for landlords to act decisively yet tread with caution when obtaining possession of a property that they believe is abandoned. The tenant is still entitled to return back to the property at any time. If the landlord has not followed the correct procedure, the tenant could sue the landlord for breach of contract under civil law and also for illegal eviction which is currently punishable with a fine of up to £20,000 and a potential prison sentence of up to six months.

The first question that a landlord must ask is why they suspect that the tenancy has been abandoned. Bear in mind that there may be a good reason for the tenant being away from the property: hospital stay, an
extended holiday. Another common reason is because the tenant has gone to prison. Obviously, the first port of call should be attempting to contact the tenant. If they do not respond to calls, voicemails or
text messages, then try email and also posting a letter to them. If this is to no avail, then there are some signs that landlords should look for.

The first is checking whether the tenant is still making rent payments. If they aren’t, did they stop suddenly, or was there an outstanding issue with rent arrears or persistent late payments?

It is in situations like this that it also pays to have a good relationship with neighbours. They may have spoken with the tenant, seen removal vans or even not seen the tenant in some time. A witness statement from a neighbour can be helpful. Similarly, if the tenant was claiming housing benefits, contact the Housing Department. They may be able to give advice, or, may have been in contact to the tenant. You have a duty to tell the Housing Department that you think the tenant has left and they will make enquiries which can cover you from being pursued for overpayments at a later date. They may even sign a witness statement which, again, can be very useful. Remember to ensure that all communications are documented.

During the referencing stage, if you obtained details of the tenant’s next of kin, it is also worth contacting them.  If this information was not taken, you could contact employers or a guarantor.

Based on the above, if you are beginning to get the feeling that the tenant may have left, you need to check whether the tenant’s possessions still remain in the property or not. This can be tricky. A landlord must seek permission from the tenant to access a property. If they do not, they may have infringed on the tenant’s rights. However, if the landlord feels that the property is unoccupied and in an unsafe condition, they may enter without permission (but there must be clear reasons why).  If possible, take along an independent witness with you. If the tenant’s possessions have been removed, in combination with the points above, it may be a telling sign that the tenant has left, it is wise to take dated photos as evidence.

If the tenant’s possessions have been removed, in combination with the points above, it may be a telling sign that the tenant has left. But landlords should still be cautious and end the tenancy using the correct court procedure of obtaining possession.

Landlords should serve an Abandonment Notice on the tenant by leaving a notice attached to the front door of the property (remember to take a photograph of it attached on the door, if possible, with a newspaper to show the date that it was served). It would be wise to display it discreetly: an obvious abandonment notice would draw the attention of squatters. A copy should also be posted through the door.

After five days, the landlord can change the locks on the property. The Abandonment Notice will make clear that the tenant should contact the landlord for a new set of the keys. This covers the landlord in the event that the tenant does return to the property. After 10 days has lapsed, after lock change, the landlord can claim vacant possession of the property. If there were any possessions remaining in the property, they must be stored for a reasonable amount of time after which the landlord can dispose of  the possessions (take copies). If any possessions are sold, keep all invoices since tenants are entitled to the proceeds. Of course, the landlord has the right to deduct a reasonable amount for costs.

It is clear that landlords need to be cautious where abandonment is concerned, as it can be a grey area. If there is any doubt whether or not the tenant has abandoned the property, always go down the route of obtaining a court order by speaking to us a Landlord Action.

 

 

 

 

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