Tenant abandonment is when a tenant leaves a property before the end of a tenancy, and without notifying the landlord.
The term 'abandonment' also has a broader legal meaning: the voluntary surrender of a legal right. In the case of a tenancy, the tenant would be abandoning their legal possession of the property.
Normally the tenancy agreement will stipulate that a tenant must notify the landlord if they are away for more than two weeks, but this breach of contract is of less legal importance than regulations to protect tenants from unfair eviction (the Protection from Eviction Act 1977).
Why is it problematic for landlords?
Although, a tenant may have vacated the property and is no longer paying rent, they are still the legal occupant.
The landlord cannot end the tenancy and re-let the property without a possession order, which takes time to obtain and will require proper proof that the he has left. Tenant rights mean that landlords cannot even enter the property immediately to check that it is abandoned, except in emergency circumstances (outlined below).
Aside from the potential loss of rental income, property insurers often stipulate higher insurance premiums if the property goes unoccupied for more than two weeks. An abandoned property may also become vulnerable to vandalism or squatters.
Tenants may leave possessions behind, and dealing with these can be complicated. We address this at the end of the article.
Has the tenant really abandoned the property?
It can be difficult to tell if a tenant has really abandoned a property: the appearance of it is not proof, and a tenant could merely be out each time a landlord visits. Temporary abandonment could be the result of mitigating circumstances, such as the tenant being admitted to hospital, attending a family illness, or being taken into legal custody.
Landlords can take precautions to identify and deal with it – by setting up regular property inspections with the permission of the tenant at the start of the tenancy, or requiring a regular cleaning service. Such conditions should be included in a proper agreement.
Checking if the property is abandoned
As a landlord, if you think the property has been abandoned, you should first attempt to contact the tenant. Ask the tenant for written confirmation that they’re returning possession of the property to you, and to return the keys. Once you received this confirmation you can go into the property immediately.
If, after repeated attempts, you cannot reach the tenant, you can investigate further. The property can only be considered abandoned if the rent is overdue and there are reasonable grounds to believe that it is abandoned.
The following are clear and accepted indicators of it:
- non-payment of rent;
- the property keys have been left behind; and
- the tenant’s possessions have been removed from the property.
If you do not have clear indications of abandonment, try checking with neighbours – they may have an idea of when the tenant was last present, or if they have removed their possessions. Record such witness statements, as they will contribute to your case for a court possession order. You can also try to contact the tenant’s relatives or friends to find out their whereabouts. Contact information for the tenant and next of kin should be gathered before it begins, when you screen tenants and during signing of the tenancy agreement.
When can a landlord enter a property without a possession order?
Even if the property is clearly abandoned, the tenant is still in legal possession. You cannot at this stage violate their right to privacy and quiet enjoyment by entering the property without their permission, except in the case of an emergency, to safeguard the property, the surroundings or people. For example, if:
- there is a fire in the property;
- the property is in an insecure condition;
- gas or electrical appliances are a risk to the safety of the property;
- there is flooding coming from inside the property;
- structural damage urgently needs attention; or
- there is reason to believe crime or violence is taking place.
In these scenarios, you should get an independent witness to accompany you and to record the circumstances in writing.
Re-letting more quickly
In some cases, where the tenancy has clearly been abandoned, it may be appropriate to take steps towards re-letting the property before obtaining a possession order. This could mean changing the locks and dealing with any possessions that the tenant has left behind. However the tenant is still legally entitled to return and take up residence.
You could be charged with illegal eviction (a criminal offence) and breach of the tenancy contract (a civil offence) if your actions prevent them from doing this. It is advisable to seek expert advice before doing anything that puts you at legal risk.
If you enter the property and change the locks, you should take the following precautions:
- have an independent witness who can confirm the situation in writing; and
- leave an abandonment notice on the door with contact details for the tenant to regain entry.
The following information should be included on an abandonment notice:
- a statement of the belief that the tenancy has been abandoned, with the date of suspected abandonment;
- full name and contact details of the landlord;
- full name of the tenant and the property address;
- a request for information on the whereabouts of the tenant from anyone who may be aware of this;
- a date on which the tenancy will be presumed surrendered, unless the tenant contacts the landlord;
- a recommendation that the tenant seeks advice on their tenancy; and
- the names of any witnesses to the notice.
Regaining possession of the property
In order to legally regain possession of a property abandoned by the tenants, a landlord must seek a court possession order. The process and grounds for eviction vary between countries in the United Kingdom.
In general, landlords must issue a section 21 or section 8 notice before eviction proceedings can take place. A section 8 notice is likely to be relevant in the case of abandonment, since it applies when tenants are being evicted for legal reasons, such as breaking the terms of the tenancy agreement.
If it is not clear whether a tenant has abandoned the property or not, it is best to use a section 21 notice, since landlords do not need to give a reason for issuing this notice, and cannot be accused of unlawful eviction. If the tenancy started after 2015, use a Form 6A notice instead of the older format section 21(a) and section 21(b) notices.
It may also be that this route offers faster and more straightforward resolution because it requires less decision making by the court. However there are certain conditions that need to be met for a section 21 notice in order to protect tenants, such as a two month notice period, and a four month period since the start of a tenancy in which this type of notice cannot be used.
When tenants leave a property, they often leave possessions behind. Such abandoned goods are an inconvenience to landlords, but there is a legal obligation to take care of tenants’ possessions until they are restored to their owner, or are legitimately disposed of. A landlord is responsible for any damage he causes to the tenants' belongings, just as the tenants are responsible for damage to the property.
Simply selling or disposing of abandoned goods without taking appropriate steps to return them to their owner is a civil offence under The Torts (Interference with Goods) Act 1977. Such 'wrongful interference' with goods includes selling, using, or allowing damage to be caused to goods. A tenant could bring a claim against a landlord if this happens, which could be costly and time consuming. Such claims are limited to the resale value of the possessions and not the replacement cost.
A landlord cannot legally seize or withhold goods in lieu of monies owed by the tenant. The only way in which tenants’ goods may be legally used to offset monies owed by the tenant, is through the courts: by securing a possession order or separate money judgement Goods may then be seized by the court bailiffs, but only goods with value will be taken.
A good tenancy agreement will usually define procedures for dealing with abandoned goods, but this should comply with the Unfair Terms in Consumer Contract Regulations 1999, and it is advisable to also issue a notice of collection of goods.
Landlords wishing to dispose of abandoned goods must take the following steps:
Issue a notice requiring collection and a notice of intention to sell goods, giving a reasonable notice period (commonly 28 days). If the tenant is not contactable, the notice should be advertised or published.
Seek evidence that the goods have in fact been abandoned. This means evidence in writing from the tenant, if possible. Remember that if a tenant has left belongings behind this may be regarded as evidence that the tenant intends to return and has not actually abandoned the property.
Gather evidence that shows it is reasonable to dispose of the goods. For example that the goods were of low or no value, or were perishable. Photographs and an inventory are advisable. Landlords should also show that they made attempts to contact the tenant and waited a reasonable time before disposing of goods.
Keep the goods for at least three months if the tenant owes money to the landlord before the notice is given.
Landlords may sell goods and use the revenue to offset reasonable costs incurred from storing, removing or selling the goods. Landlords are expected to try to keep costs down and return any surplus to the tenant.