At the recent Newcastle Landlords Conference, Managing Partner Surbhi Vedhara and Solicitor Charlie Lynn spoke to delegates about common issues faced by Sweeney Miller’s landlord clients including abandonment and access.
Abandonment is an issue that causes many private landlords significant headaches. The accepted position is that when a tenant has abandoned the premises, the landlord may accept the surrender by changing the locks and re-letting the premises (R. v Croydon LBC Ex p. Toth (1988) 20 H.L.R. 576).
Landlords may elect to take this position due to the implied actions of the tenant for example, where there has been non-payment of rent or no clear sign of occupation. However, there are practical issues with this approach; should the landlord be mistaken in their belief a tenant has ceased to occupy, the landlord could be accused of committing an offence of unlawful eviction under s1(2) of the Protection from Eviction Act 1977. Examples of genuine absence from the tenant include:
- an extended holiday
- being in hospital
- a call of duty in the armed forces
- prison
Potential solutions for Abandonment issues
Mutual Surrender
The parties are free to enter into a surrender or agreement to surrender the tenancy. It is advisable to record any agreement in writing to document the surrender. The tenant handing the keys back to the landlord is compelling evidence that the tenancy has terminated but is not conclusive.
Possession Order at Court
The safest option is for the landlord to serve notice on the tenant and then commence possession proceedings in court. A section 8 and/or section 21 notice may be served on the tenant pursuant to the Housing Act 1988. Upon expiry of the notice, the landlord may apply to court and obtain a possession order granting a legal right to possession. The court can issue a warrant authorising bailiffs to attend the property if necessary.
Access Issues
Gaining access to the property is another practical issue which can cause complications for landlords. Most well-drafted tenancy agreements will permit the landlord access so long as ‘reasonable’ notice is provided. Usually, 24-48 hours advance notice is acceptable although further detail may be within the agreement. In emergencies, agreements often permit the landlord access immediately, although this right should be exercised with caution.
Access may be required by the landlord for periodic property checks, or for professionals to complete services such as an annual gas certificate or EPC report. These checks are pre-requisites for a valid s.21 (no-fault) notice and may cause difficulty in obtaining possession of the property at a later date. To combat this, a landlord could rely on a s.8 (fault based) notice due to the tenant breaching terms of the tenancy agreement by refusing access.
Items Left at the Property?
Any landlord should exercise caution when disposing of any items left behind at the property following a tenant vacating. Risks to landlords of disposing of items of obvious rubbish may be small, especially when the tenant has vacated voluntarily. However, there is a greater risk when disposing of larger, more valuable items that are left behind, or where the landlord has enforced a possession order.
It can sometimes be difficult to establish whether the tenant has indeed abandoned goods at the property, this is usually fact specific. If goods are valuable/onerous, it is good practice for the landlord to serve notice on the tenant imposing an obligation to collect the goods failing which they shall be sold. This is a particularly complex area and legal advice is recommended.
Landlord & Tenant and Buy-to-Let Experts
At Sweeney Miller Law we have dedicated Landlord and Tenant and Buy-to-Let teams dealing with all aspects of rental property for clients across the North East and nationally, working with established landlords with an extensive portfolio, through to first time property investors.
Alongside other prominent regional businesses, Sweeney Miller Law take part in regular events, providing support and updates to landlords in the local area as part of the North East Landlords forum.
For any questions or advice about abandonment and access issues, or any other rental property queries, get in touch with Sweeney Miller Law on 0345 900 5401 or email enquiries@sweeneymiller.co.uk.
