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There are times when a landlord must decide whether to recover possession without either surrender or a warrant on the basis of abandonment. In this case, the landlord must demonstrate to the court that it was reasonable to assume that the property had been abandoned, although it’s also wise to assume that the tenant may reappear and claim unlawful eviction.
Gathering the evidence required to prove abandonment is not always easy and will require detective work, but it is worth making the investigative effort before doing anything like changing the locks. A landlord found guilty of unlawful eviction could face fines or imprisonment.
You must be able to convince the court that the property was not capable of sustaining day-to-day living and should leave a note on the outside of the door advising that you consider the property abandoned and have recovered possession.
Entry to a property should be done by arranging an inspection in the normal way. Give written notice to the tenant that you will be attending on a certain date and time and if no-one is present you will enter with your own key. No reply will help to confirm your suspicions.
More about abandonment
The best way to avoid problems of abandonment is to choose reliable tenants who are less likely to ‘do a runner’. That's why we always stress the importance of comprehensive tenant screening checks, taking inventories and ensuring that the tenant has satisfactory references,
Gathering the evidence to support your claim that you lawfully gained possession on the basis that the property was abandoned is a lengthy and time-consuming process, but a necessary one. Speak to all those who provided references to find out if they know of the tenant's whereabouts. Take notes of the time, date, and person you spoke to.
Utility companies may be uncooperative because of data protection restrictions, but you may be able to get some answers. Speak to the neighbours and ask them if they have seen the tenant recently or if the tenant mentioned going on holiday.
Furnished or unfurnished, if the property contains only what was on the inventory, it is a fair bet that the tenant has gone. If you are even slightly unsure, you must place an abandonment notice inside the property giving 14 days’ notice, copying it by mail to the property address and the referees given.
If after this period it’s evident that the property remains empty, place a notice outside advising that the locks have been changed and provide a 24-hour telephone number for the tenant to call. This legwork will provide invaluable evidence should the tenant reappear and claim unlawful eviction.
More about proving abandonment
Establishing abandonment is tricky but essential as a defence against possible legal action by the tenant for unlawful eviction. Sometimes tenants leave no personal effects but do leave furniture they no longer require, making it more difficult to establish abandonment.
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. Other clues will come from the sell by dates of food in the fridge, a build-up of mail on the mat or a lack of clothes in wardrobes, or toiletries in the bathroom.
If you really cannot find out anything further about the tenant’s whereabouts, you will have to make your own decision about whether to change the locks or not. The legal test for abandonment asks two questions. Is the property capable of sustaining day-to-day living? Was it reasonable for the landlord to assume abandonment?
If the answer to the first question is ‘yes’, you may still find that a court will decide the answer to the second question is ‘no’, and you may be found guilty of unlawful eviction. 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.
What can I do if a tenant vacated with no forwarding address and unpaid rent?
A common difficulty is that the tenant often leaves no forwarding address. Before the landlord, as creditor, can take enforcement action to recover the debt, he will need to be able to trace the tenant, or at least any assets the tenant owns.
This is where pre-tenancy information such as place of employment or addresses for next of kin can be useful in tracing defaulting tenants. Employment details are particularly valuable as they allow the landlord to apply for an attachment of earnings order. Landlords can employ a tracing agent many of whom operate on a success-only fee basis.
If it proves impossible to locate a tenant but a guarantor exists, they may be approached for the rent arrears. It may even be necessary to take proceedings against the guarantor to obtain a judgment and thus recover the debt.
Of course, the ex-tenant may have no assets of significant value so carrying on with the process would be uneconomic. In these circumstances, it may be better to stop the enforcement process and write off the debt. Collecting rent arrears and enforcing a court judgment can be costly and time-consuming.
If the debt is economic to collect, talk to Access Legal’s landlord law team about taking legal action or consider putting the debt in the hands of a debt collection service.
What can you do if a tenant leaves goods and possessions in your property?
The best practice for legally disposing of a tenant's goods when it is clear they have abandoned the property isn't complex, but can be time consuming. Make every effort to trace the tenant's new address or otherwise contact them through any forwarding address or telephone number or email address you may have. You should then write to them with a legal notice using registered post or recorded delivery.
If you didn't get contact details from the tenant or have no success in finding a forwarding address, you could place a notice at the rented premises, although this notice should be placed inside the property (not affixed to the outside door) because of the risk of 'advertising' an empty property to squatters.
This letter or notice should inform the tenant that their goods are available for collection and will be kept for a reasonable period (say up to three months), though not necessarily at the property itself. If the goods remain unclaimed after this period you can sell them and the tenant will at that point lose all rights to the goods.
You are entitled to recover any expenses you incurred for storage and arranging the sale as well as any rent arrears from the proceeds of the sale. Any amount left over left will belong to the tenant and, provided they contact you within six years of selling the goods, you have to pay those monies due to them.
'You need to have a legal team who are caring, who you absolutely trust and who will tell you the truth. Certainly from our point of view Denise Stephens from Access Legal has been absolutely amazing.'
It's always wise to avoid being embroiled in the legal process in cases of abandonment and arrears. Access Legal pride ourselves in providing jargon-free legal advice tempered by commercial considerations.Why Access Legal