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Under Section 1 of the Protection from Eviction Act 1977, it is a criminal offence to unlawfully evict a residential occupier from rental premises without first obtaining one of the following:
Anything else is a grey area, and landlords must proceed with caution.
It is widely accepted that there are times when neither of the two scenarios above apply. In these circumstances it is ultimately up to the landlord to decide whether to recover possession without either surrender or a warrant. Often the landlord will look to his agent for guidance.
Outside being able to demonstrate that one of the above two events had occurred, the alternative defence available to a claim for unlawful eviction is that of abandonment. In order for such a defence to be successful, the landlord must demonstrate to the court that it was reasonable for them to assume that the property had been abandoned.
In all abandonment cases it is wise to assume from the outset that the tenant will reappear and claim unlawful eviction. If you start with this in mind - and proceed accordingly - you will be safe in the knowledge that in the unlikely event that your tenant does reappear, you already have the evidence required, rather than having to starting from scratch.
Gathering the evidence required is not always easy and will require some leg work on the part of the landlord or his agent. However, we would urge landlords to be patient and carry out the steps set out below before making a decision to change the locks, as there are fines and/or penal sentences for any landlord found guilty of unlawful eviction.
In addition, the tenant could bring a civil claim for damages against the landlord, so it is worthwhile putting in the effort beforehand
At the outset of the tenancy, references would have been taken. Speak to all those who provided them to find out if they are aware of the tenant's whereabouts. Are they still at their place of employment? Take notes of the time, date, and person you spoke to. Remember: you are laying a paper trail for use at a later date, if required.
You may find that they are unwilling to give you any information, but if you style your questions correctly, you may be able to find out enough to help you make your decision. For instance, try just asking 'Yes' or 'No' questions, such as: "Is this person still registered as being responsible for the electric/gas/council tax at this property?" Again, take notes for your paper trail.
Have they spoken to the tenants or seen them recently? Have they mentioned an imminent move? Is there any evidence of removal vans at the property? Take notes for your paper trail.
Once you have made these enquiries, you can turn your attention to the property itself.
The condition of the interior of the property will help you make your decision, but the first thing you must do is gain entry.
This should be done by way of an inspection, and you must go about arranging an inspection in the normal way. That is, give written notice to the tenant that you will be attending on a certain date, at a certain time, and that if the tenant is not present you will enter with your own key.
Obviously, if your tenant telephones you to say that it is/is not convenient, you will know they have received your correspondence and are still residing at or using the property. If you cannot get them to surrender voluntarily you must commence the due process via the court.
If you do not receive a response to your written request for an inspection, go ahead and carry out the inspection accordingly.
The first thing you need to establish is whether the property is let furnished or unfurnished? If unfurnished, this is easier. Clearly if you enter the property to find there is absolutely no furniture there, then it is obvious that the property has been abandoned. If this is the case it is relatively safe to change the locks, but do take photographs - dated if possible - or a video record of empty rooms, empty fridge, empty clothes cupboards etc.
If you need to fight your corner at a later date, you must be able to convince the court that the property was not capable of sustaining day-to-day living. In addition, leave a note on the outside of the door (provided that it is in an area safe from squatters) advising that you consider the property abandoned and have recovered possession. If, however, this is not the case, leave a contact telephone number on the note for the tenant and give a timescale as to how long they have to contact you i.e. seven or 14 days. If possible, make it a number that is available 24 hours a day.
Sometimes tenants leave no personal effects but do leave furniture they no longer require, making it more difficult to establish abandonment. In this instance you may wish to post an abandonment notice inside the property in a prominent place so the tenant can immediately see it when they walk in the door. Provide a telephone number the tenant can call, and advise that the locks will be changed and abandonment will be assumed in 14 days if you have not heard from them. Also, send a copy of the abandonment notice by first class post to the property in case the tenant has a mail re-direct in place, and send copies to any referees.
Once that notice has expired, and if you have not been contacted by the tenant, it is as safe as it is ever going to be to change the locks and recover possession.
If the property is furnished, you have to be more vigilant, as it is more difficult to prove abandonment. In this instance you can only go by the absence of the tenant's personal effects: you now need to look for food in the fridge and its sell by date; a build-up of mail on the mat; clothes in wardrobes, or toiletries in the bathroom.
If the property contains only what was on the inventory, it is a fair bet that the tenant has gone. However, in instances such as this you need to remember that some tenants travel light, moving from furnished property to furnished property. It is therefore possible that they own a capsule wardrobe and personal grooming items, and have simply packed the whole lot up and gone on holiday. You will, of course, have already asked about this, so will have some idea about how your tenant lives.
If you have spoken to the tenant's employers and they have advised that your tenant is on annual leave, you need to ask when they are expected to return, and go back to the property after that date.
If you are even slightly unsure, you must place an abandonment notice inside the property giving 14 days’ notice and copying on by mail to the property address and the referees. Inspect again after this period to see if anything at the property has changed. If not, change the locks and place a notice outside (if safe to do so) advising that the locks have been changed, and providing a 24-hour telephone number for the tenants to call.
The other scenario where you need to be vigilant is where nobody has seen or heard from the tenant in a while: rent is not being paid, you cannot contact the tenant, the referees and the utilities cannot assist you.
Obviously you need to inspect, but what if you inspect and find that whilst the food in the fridge is well past its sell by date, and there is a backlog of mail on the mat, the tenant's personal effects remain at the property?
In this situation, we would suggest that you commence the court process whilst making a few more enquiries. If a tenant has left personal belongings in the property there could be another reason for his absence - such as imprisonment or hospitalisation - so do check with your local police and hospitals to see if they are able to help.
If you really cannot find out anything further, you will have to make your own decision about whether to change the locks or not, but the test for abandonment is twofold:
If the answer to the first question is yes, you may find that a court will decide the answer to the second question is no, and you may be found guilty of unlawful eviction.
Bear in mind that the only two lawful ways to recover possession are voluntary surrender by the tenant, or a visit by the bailiff. Anything else is a grey area, but by being patient, vigilant and thorough, you should avoid any claims for unlawful eviction.
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