Abandonment of Tenancies
Under the Protection from Eviction Act 1977 it is a criminal offence to unlawfully evict a tenant without either:
- a voluntary surrender by the tenant - preferably in writing but surrender of the keys is sufficient in most cases; or
- an eviction date obtained via a warrant of possession issued by the courts.
Invariably there will be times when neither of the two scenarios apply; it is up to the landlord to decide whether to recover their property without either surrender or a warrant.
Whilst the Housing and Planning Act 2016 does seek to introduce a new statutory code for landlords to use when seeking to recover their properties after abandonment there has been no guidance issued yet (as at July 2017). Until guidance is available landlords are still encouraged to proceed with caution as the counter claim against abandonment could mean you have carried out an illegal eviction. It is wise to assume in all abandonment cases that the tenant will reappear and claim illegal eviction.
So it is always recommended that landlords seek the appropriate advice when considering their actions as regards a potential abandonment by their tenant(s).
In helping to establish whether your tenant has abandoned your property it may be appropriate to:
- Contact your tenant via a mobile number if you have one;
- Check with neighbours to see if they know anything or have seen a removal van;
- Check with the referees given on the original references to see if they are aware of the tenant's whereabouts;
- Arrange an inspection of the property using written notice in the normal way.
If on inspection you believe the property to be abandoned you can make your own decision as to changing the locks. The test for abandonment is twofold;
- Is the property capable of sustaining day to day living?
- Is it reasonable for the landlord to assume abandonment?
If you are unsure after your inspection place a notice in the property saying you will be following the abandonment procedure unless the tenant contacts you within 14 days.
If you decide however to change the locks you must post an abandonment notice on the outside of the property advising that you have recovered possession, provide a number to be contacted on and how long the tenant has to contact you. It is sensible to send a copy of the abandonment notice to the property in case the tenant has a mail re-direct in place. If you do recover the property remember to observe the requirements regarding the tenant's possessions.
In short abandonment can be a grey area; to protect yourself as a landlord you should keep written copies of your actions, copies of notices issued and where possible photos or video evidence of the property inspection.