Abandonment of Property

by Kate McCormick

Sometimes a tenant simply cannot pay the rent any more. He or she may be made redundant or suddenly go out of business and disappear overnight. Unless the tenant has informed the landlord of his/her departure or returned the keys, seemingly unoccupied premises can cause difficulties in determining exactly what the situation is. Has the tenant left for good? Or, is he or she away temporarily, on holiday, in hospital or even prison perhaps?

A landlord will not want his property to be empty for any substantial length of time in view of the security and vandalism risks and the likelihood of it falling into disrepair. For example, squatters may be able to access the premises, leading to damage and possible nuisance complaints from neighbours. It will cost the landlord time and money to put the property back into habitable condition and an empty period could have a negative effect on the rental value and/or any insurance premium. Therefore, the landlord will want to re-let the premises as soon as possible.

Before s/he takes any action, however, the landlord must ascertain beyond reasonable doubt whether the tenant has indeed abandoned the premises for good. This is because illegal eviction of a tenant is a criminal offence under the Protection from Eviction Act 1977 and a breach of the tenancy agreement. The landlord should carefully follow the correct procedure to avoid any negative consequences.

Whether the rent is still being paid is a guiding factor, but even if the tenant has defaulted on the rent, s/he is still entitled to protection. The landlord should also:

• try to contact the tenant or a relative or friend;
• make enquiries of neighbours and obtain evidence from them in writing if possible;
• check through windows whether it appears that any furniture or belongings have been removed from the property.

If, after making sufficient checks, it is unequivocally clear that the tenant has absconded, the landlord is entitled to possession under the Housing Act 1988. It is advisable first to leave a written notice on the door or window stating that the landlord, believing the property to have been abandoned, intends to take possession if the tenant does not contact him/her at a stated address within a certain period. The notice should also state the tenant’s name and address and ask people to contact the landlord if they know of the tenant’s whereabouts. It should also advise the tenant to seek legal advice, warn that the landlord has or may change the locks and state from where new keys can be collected. If possible, a witness should be present and photographs should be taken of the notice and the premises, for evidence.

The landlord may then enter the premises only if they need to be secured or to remove or deal with any appliances or items that may cause a danger (i.e. electrical goods or soft furnishings).  Until the time period on the notice has expired, the landlord should not enter the property but for these limited circumstances in case s/he is seen to be occupying the premises for his/her own benefit and accepting the tenant’s surrender.

The landlord is responsible for safeguarding any items left at the premises. You should first check the tenancy agreement for relevant clauses i.e. that goods will be stored for 30 days following abandonment and then sold or disposed of.  It is wise to store particularly valuable goods for longer periods. Any proceeds of sale should be kept in a suspense account or off-set from amounts owed by the tenant.

If there is any doubt as to abandonment, however, the landlord would be best advised to commence court possession proceedings instead. There will be a court fee to pay and the proceedings could take a couple of months.

Proper legally drafted tenancy agreements should contain appropriate clauses to deal with the consequences of abandonment and landlords should obtain tenant application forms, NI numbers, details of next of kin, employment and character references and possibly a guarantor before granting the tenancy.

For a tenant, abandonment is simply not a viable option even if s/he can no longer afford the rent, as this will not end the tenancy. The tenant may well be taken to court for any unpaid rent and other expenses and be unable to obtain a reference from the landlord. Instead the tenant should talk to the landlord to try to obtain a reduction or suspension in rent or to see if s/he will accept a surrender of the tenancy. The landlord is unlikely to want to go through with costly possession proceedings if the tenant later absconds, so this could be in both parties’ interests.