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To take Possession or not to take Possession

Landlords are commonly faced with a tenant’s disappearing act, most often as a result of the tenant being in financial difficulties. Although landlords instantly feel relieved by not facing an expensive and lengthy court procedure what beckons is the likelihood of entering into the unknown world of abandonment.

Some assistance is given under the provision of section 5 of the Housing Act 1988, which in summary confirms a tenancy only ends when a tenant voluntarily gives up possession or a Court Bailiff executes a possession order. For a surrender to be effective it must be unequivocal between the landlord and tenant. Surrender does not just take place because the tenant hands the keys back, there must also be some agreement by the landlord. Nor does the granting of a possession order in it self permit the landlord to take back possession. It is the execution of the possession order by a Court Bailiff that lawfully entitles the landlord to possession.

But this has little use when a tenant has absconded, unknown to the landlord whether the tenant will return or not. A wrong move may result in a landlord and their agent being faced with civil and/or criminal proceedings for unlawful eviction.

So what may constitute abandonment

This is not exhaustive and will depend on each individual case but some consideration should at least be given to the following before possession is taken:

• Are there rent arrears, in particularly most recently?
• Has the tenant removed his possessions?
• Has the tenant left food in the fridge that may have gone off?
• Has the tenant left post at the property?
• Ask the neighbours if they have seen the tenant or seen anything unusual?
• Has the tenant left all the keys in the property?

In addition to the above, a landlord will be strongly advised to serve what is often referred to as an Abandonment Notice. This provides a 14 day notice warning the tenant that if they fail to contact the landlord, possession will be taken. However, it must be noted that abandonment is not a legal procedure but a process of proving to the court in the event of a claim for unlawful eviction that all reasonable steps were taken before possession was taken back. This may prove to be a persuasive defence. If there are any doubts then a possession order should be sought.

Given the potential repercussions of abandonment, considerations must be given when dealing with these situations. In particular, agents should ensure a process is in place and landlords are fully advised before possession is taken back.

7 Comments

  • Ben Reeve-Lewis 11th April 2011 at 4:04 pm

    Somebody recently told me of a case law where an argument for intention to return was put forward based solely on a toothbrush being left in the premises by the tenant. I dont know if this is apocryphal or not, or if it was genuine, what the view of the court was. Have you heard of it?

  • Sean McMahon 14th April 2011 at 10:23 pm

    Yeah I did, they had a brush with the law over that one, instead of an abandonment notice they put up a plaque. lol

  • Jamie 19th January 2012 at 10:03 am

    Is there any case law which prove the usefulness (or otherwise) of abandonment notices as a defence against unlawful eviction?

    • PainSmith 19th January 2012 at 3:36 pm

      No I am afraid not, but then this would be a defence based on a reasonable belief that the property had been abandoned.

  • P Rosemond 20th February 2012 at 2:14 pm

    I have searched for an answer to the following question one million times …..I guess a bit less but have failed so far to obtain an answer. Can anyone provide an answer:

    From a Landlord stand-point, Is there any legal implication if a tenant continue to pay the rent but fail to take up possession on the stipulated date in the lease agreement and even beyound that agreed “take up possession” date. The Landlord has been willing to hold on for the tenant to move in but three months onward the tenant has not taken up possession. The Landlord’s patience is running out.

    • PainSmith 21st February 2012 at 10:05 am

      most insurance policy state the property can not be left empty for more than 28/30 days so this is something that needs to be looked into.It sounds like you should contact the tenant and ask whether they are willing to surrender the tenancy which if they consent to you can find another tenant. Alternatively you could issue a section 8 notice for breach as the tenant is supposed to take possession and is supposed to use the property in a tenant like manner.

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