Don’t leave me this way

Landlords

What to do when a tenant abandons a property. Taken from Property Professional, the member magazine of our agency’s professional body, Propertymark.

It’s one of the trickiest issues for landlords and fraught with legal complexity, so how should you deal with abandonment and manage properties when you suspect that a tenant has left before their tenancy has ended without notifying you and without any intention to return? “We’ve seen an uptick in tenants abandoning properties over the course of the pandemic, mainly in situations where they can no longer meet their liabilities under the tenancy,” says Tristan Sharples, Senior Associate and commercial dispute resolution expert at law fi rm Freeths LLP.

While arrears are the most common reason, there is also the possibility that a tenant is, for example, on holiday, has gone into hospital or is remanded in custody awaiting criminal trial. Tenancy agreements in Scotland allow no access at all except in cases of emergency, and across the UK, if the tenant hasn’t surrendered the property or you haven’t legally taken repossession, the tenant still has the right to return during the period covered by the original tenancy agreement. If they do so and fi nd the locks changed, or a new tenant in situ, the agent or landlord is at high risk of being found guilty of illegal eviction.

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Landlords

However, empty properties can cause signifi cant issues for landlords, not least because there is no tenant in situ paying rent. “When a property is unoccupied, it is at higher risk of theft, property damage, vandalism or squatters and, as a result, insurers may stipulate higher insurance premiums if a property is unoccupied for an extensive period of time. For this reason, once a property has been abandoned, the question that most of my clients will ask is ‘how soon can I get a new tenant in?’” Sharples says. However, because the situation carries so much risk, experts advise a cautious approach and the need for specialist legal advice in every case.

The best route forward will vary considerably depending on what type of tenancy agreement is in place and whether the property is subject to the legal framework of England, Wales, Northern Ireland or Scotland.

Check List

The starting point for tenancies in England is to attempt to contact the tenant, and then visit the property to see if there’s any evidence of it being occupied. David Votta, President of ARLA Propertymark, suggests doing two visits and checking any external meters to see if any utilities are being used. “If there is a clause in the tenancy allowing access to the property, a landlord may consider making preparations to investigate inside. In this case, a letter should be drafted explaining they wish to access the house on a given date before further action,” says Gary Ekpenyoung, partner and housing specialist at law fi rm Shakespeare Martineau. Once you’re convinced that the tenant has abandoned the property, Votta says there are only two ways in which you can get possession of a property: either a court order or if tenants surrender by handing the keys and vacating. “Remember too that the tenant retains the right to re-enter the property for up to six months if the property hasn’t been surrendered or a court order granted,” he warns.

It is vital to take every step to try to engage dialogue with the tenant, and abandonment/resecuring notices can often trigger a response if the tenant is still there, Votta explains. “Assuming they have abandoned the property, you must serve appropriate notice on the tenants. Use the word ‘resecuring’ as you’re attending to resecure, and cover yourself off if there is a claim under the protection from harassment/eviction acts.”

Ekpenyoung advises that notices should be posted through the door, on the front door and/or a prominent place on the front of the property as well as sending to any forwarding address the landlord has for the tenant. Once the notice has expired, dependent on the circumstances of the individual case, it may be possible for the locks to be changed and the property relet. A crucial piece of advice for any landlords going through abandonment proceedings is to maintain comprehensive records, eff ectively building a case. “It is not uncommon for these types of situations to go to court, and building up a portfolio of emails, texts, calls and letters sent to the tenant could off er protection if the tenant argues that they did not abandon the property,” Ekpenyoung says. Ultimately, landlords should ensure that adequate provisions are put into the assured shorthold tenancy agreement to pre-empt this situation. Votta says the absence of clarity in case precedence makes it all the more important for landlords to seek the advice of legal experts at all costs.

Personal Possessions

The issue of possessions left at the property in the case of abandonment adds further complication. In England, Wales and Northern Ireland this is covered by the Torts (Interference with Goods) Act 1977. If there are goods left in the property, the landlord becomes an involuntary bailee. “In many cases I would suggest the service of a notice under the Torts (Interference with Goods) Act 1977, which enables a bailee to impose an obligation to collect the goods on the owner,” Sharples says.

Once the tenancy has been brought to an end, what happens to the tenant’s deposit very much depends on the terms on which it is held. “In the case of property abandonment, the landlord will be in the position to complete a statutory declaration to the relevant deposit scheme to say there’s been a breach of the tenancy agreement,” Ekpenyoung says. The landlord could then be paid the deposit to cover any arrears or damage to the property.

propertymark.co.uk

Please note that this article does not constitute guidance, and specialist legal advice should always be taken in advance of any action.