Abandonment, what is it?
Thu 10 Dec 2015
What is Abandonment?
Abandonment is when a tenant leaves the 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.
Abandonment is 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 at any time, despite not paying rent. Taking over an abandoned property is fraught with difficulties for the landlord.
The Need for Caution
When a tenant abandons a property part-way through his tenancy the landlord needs to be very cautious indeed because:
- The tenant is legally entitled to return and take up residence again
- The landlord has a responsibility to his tenant to safeguard any belongings left in the property
- If the landlord takes over the property or re-lets and the tenant returns he could be in serious trouble for: (1) the civil offence of breaching existing the tenancy contract, and (2) it is a criminal offence under the Protection from Eviction Act 1977 to prevent the continuation of the tenancy
Legally, abandonment, if indeed the tenant has left for good, is the voluntary surrender of a legal right, for example, an interest in land or property – a tenancy. However, unless you as the landlord are certain of the fact, then it is quite risky to take over the property.
Tenants sometimes leave their accommodation unoccupied for long periods. Alternatively they may leave entirely, or 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 Short-hold Tenancy.
A 1997 court case resulted in the landlady receiving a £20,000 plus fine for re-letting her flat even though her abandoning tenant was in prison, committed for life. He pursued the case from prison and did win. Be warned!
Problems with Abandonment for the Landlord!
Abandonment is a breach of the tenancy contract as these usually state that the property must not be left unoccupied in excess of two-weeks without informing the landlord. However, breach of contract is trumped by the protection afforded tenants under statutory rules – namely the Protection from Eviction Act 1977.
The situation puts the landlord in a difficult position for several reasons:
- Insurers usually stipulate that they must be informed if the property is to be unoccupied for periods in excess of 14 days, 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 then involving the local authorities
- Unoccupied properties are vulnerable to occupation by squatters.
An important point is, is the rent still being paid? 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.
There may be perfectly logical explanations for why a tenant appears to abandon, though not for why they don’t inform their landlord:
What Should the Landlord Do?
A landlord or his agent in this position has some difficult decisions to make:
- What legal right has the landlord or agent got to re-enter the property?
- If it is very obvious that the tenant has left for good, can the property be re-let.
- What should happen to any of the tenant’s possessions which may have been left behind?
- What would be the consequences if the property is re-let and the tenant returns?
There’s only one guaranteed safe way to deal with this – get a court possession order before taking over the property. This is advisable especially if all the tenant’s possessions are still in the property.
Never be tempted to 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 he/she has actually abandoned her 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?
- Can you see through the windows if the tenant’s possessions are still in the accommodation?
If the above points 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.
In this case:
- You should have a reliable independent witness willing to confirm the circumstances in writing. You may consider contacting the local authority’s Tenant Relations Officer
- You leave a clear notice (Abandonment Notice) on the door informing the tenant that the lock has been changed and that if they require access they must contact you at the address supplied to obtain a replacement key
- Remember that you do not want to encourage squatters – notices displayed too prominently may do just that!
- Under no circumstance must you deprive the tenant/s of their rights to access
- Inform your locally authority Rent Officer (Local Authority Housing Department) of your actions in writing so there is independent official verification of your actions.
Taking these precautions may enable you to re-let quickly (seeking a possession order can be a lengthy process), but 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 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 has serious consequences.