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.