‘Tenant abandonment’ is when a tenant leaves the property before the end of the contract term and without telling the landlord or letting agent. However, while the term ‘abandonment’ is often used when a landlord believes their property to have been abandoned by their tenant, from a legal perspective this is actually an ‘implied surrender’ situation.
When it comes to a statutory tenancy like an Assured Shorthold Tenancy (AST), tenants have rights which can cause complications for landlords who are not aware of the rules in this situation. Read on to find out what you can do to stay on the right side of the law, if your tenant appears to have abandoned the property without telling you.
Any instance of ‘abandonment’ is difficult to define exactly – it will depend on when the landlord or agent realised the tenant wasn’t living there and how long the property had been empty. How long must it be empty before you can say for sure it’s been abandoned? Just because a tenant hasn’t been there for a long time doesn’t necessarily mean they’ve abandoned the property.
There could be legitimate reasons why the tenant isn’t there without letting the landlord or agent know. That said, a tenant is in breach of contract if he or she leaves the property empty for too long, or abandons the tenancy without giving notice to the landlord.
All sorts of questions arise when a landlord or agent discovers that the tenant is not living in the property: Is there any way I can contact the tenant? Can I legally enter the property without the tenant’s permission? Is the rent still being paid? Will the property still be covered by insurance? Where do I stand legally? Can I take over the property and re-let it to protect my income? Am I now responsible for council tax and utilities charges?
This question is often difficult to answer for sure, because however long the property has lain empty, the tenant could return at any time and under the law would have a right to continue with the tenancy, regardless of whether the rent has been paid in the meantime - rent not being paid does not necessarily mean the property has been abandoned, and excluding a tenant from their rightful tenancy is a criminal offence.
The landlord must weigh up the evidence to determine the tenant’s intent and motivation for leaving the property empty for an extended period. It’s quite legitimate for tenants to leave without notice, for example when going away on holiday, though the tenancy agreement will almost certainly require them to inform the landlord if the property is going to be vacant for more than two weeks to 30 days, as the landlord insurance provider will need to be informed. There are however several indicators that the property might have been ‘abandoned’:
These are all signs that the property has likely been ‘abandoned’.
There are many reasons why a tenant may abandon a tenancy. Perhaps most common is the fact that the tenant is struggling financially, perhaps having rented a property which is beyond their means, or simply that they have difficulty handling money, and they see this as the only way they can get out of their obligations.
They may have lost their employment, be going through a family break-up, or have got themselves into debt for various other reasons. On the other hand, they could have had an accident, they may be in hospital, or they could have been arrested by the police, been imprisoned or absconded abroad.
Whatever the reason, from the landlord’s point of view, he or she must assess the risk that the tenant might return and legitimately reclaim his or her tenancy.
The first thing to do is gather as much evidence as possible and document this in case it is needed as evidence in the future. Interview neighbours and take witness statements if you can.
Secondly, you can try to contact the tenant, keeping records of all phone calls, letters and emails sent. Your tenancy application form will have asked for next of kin details to be contacted in case of emergency, and you will have records of their employment from when you did credit checks as part of the tenant referencing process. All these sources should be exhausted before assuming the tenant has abandoned the property.
As soon as you suspect abandonment you should deliver a formal written notice of an inspection of the property, ideally personally through the letter box, or by post. If nothing is heard within a reasonable time, you may enter the property for inspection.
It is a good idea to have an independent witness with you when you enter. You should complete an inventory and take photos of the property and any contents the tenant/s may have left behind. You should be looking for further evidence that the property has been abandoned, such as rotting food in the fridge and unopened mail piling up behind the door.
Under the Protection from Eviction 1977 Act a landlord may start to take action if they have reasonable grounds to believe that the residential occupier has ceased to reside in the property. But ultimately a court order is needed for the landlord to gain possession. So, what are the steps to take?
The thing to bear in mind throughout this process is that tenants have legal protections under the Protection From Eviction Act 1977 and the Housing Act 1988 and the landlord has to follow certain steps before regaining possession.
Under the Housing and Planning Act 2016 part 3, sections 57 to 61, when a landlord strongly suspects ‘abandonment’ and has a file of evidence to back this up, he or she can legally regain possession when meeting these conditions which relate to tenancies in England:
It used to be the case that a simple abandonment notice could be posted on or at the property, and providing the landlord was confident of abandonment, given the evidence gathered as above, the landlord, after waiting a reasonable period, could re-let.
Now it is a bit more complicated: under the above Act a series of notices must be given personally to the tenant, the named occupier and whoever paid the deposit payer. In the case of abandonment this is not usually possible, so the notice should be left or sent to the property.
A copy of the notice should also be sent to every other postal address in the UK that the tenant, named occupier or deposit payer has given to the landlord. Also, every attempt should be made to contact the tenant through any email addresses, and perhaps these days perhaps through social media, though this is not a formal requirement.
The intention of Parliament is obviously to use any method possible and all endeavours to contact the tenant with a notice of abandonment before ending the tenancy early and taking back the property. However, in reality this has limited use - ultimately the only way to repossess a property is via a court order for possession.
An abandonment notice should contain the following:
The deadline date in the notice must be at last eight weeks from when the first notice is served. This first notice can be sent before the unpaid rent condition has been met but it is important that the second mandatory notice is not sent before the unpaid rent condition is met, and not less than two weeks after the first notice or more than four weeks after it.
Yet a third notice must then be sent at least five days before the deadline date specified in the first notice. This third notice must be given by fixing it to a conspicuous section of the property. If there has been no reply within the eight week period, the landlord then serves a final fourth notice stating that the tenancy has been brought to an end on the day on which this final notice has been served.
Providing this convoluted procedure has been followed, with no response, the landlord can safely regain possession of the property. But, there’s a kicker: should the tenant turn up and subsequently ask the courts to reinstate the tenancy, within six months of the final notice being served, and they can provide good evidence as to why they did not respond, the court can reinstate the tenancy.
Clearly this whole extended process is intended to protect the legal rights of the tenant effecting an end to the tenancy without taking up the courts’ time. In the case of abandonment, the landlord could alternatively instigate a court hearing under Section 8 or using the possession procedure under Section 21 of the Housing Act 1988 as amended.
Paul Sowerbutts, Head of Legal at Landlord Action, Total Landlord’s partner and one of the UK’s leading eviction and housing law specialists, advises that a court order is in fact the only safe way under current legislation for landlords to obtain possession when their rental property appears to have been abandoned. This is because the Protection from Eviction Act 1977 makes it clear that it is a criminal offence to repossess a property other than via a court order for possession, so trying to repossess a property without one is a risky approach. He adds:
“As a precedent, the recent enactment of the Renting Homes (Wales) Act 2016 has provision in the legislation to deal with abandoned properties in Wales. This is a proposal that the UK Government should consider including within the Renters (Reform) Bill.”
Paul Sowerbutts, Head of Legal, Landlord Action
If a case were to arise where the tenant turns up several months after you’ve completed the ‘abandonment process’ and demands to get the tenancy reinstated, obviously this could be problematic for the landlord. Especially if the property has been prepared for re-letting or actually been re-let.
The landlord should have changed the locks and dealt with any belongings left behind in the correct manner (see below). Landlords who unlawfully evict tenants by not following the correct procedure can be prosecuted under the Protection from Eviction Act 1977, receive a criminal conviction and, in the worst case scenario, could end up with a prison sentence.
It is also a possibility in cases of illegal eviction that a tenant would have a strong case for a claim for damages against the landlord for costs involved in finding alternative accommodation and compensation for distress. A guide for damages awarded for unlawful eviction is included in the Housing Act 1988.
By following the above procedure correctly, any landlord will have a good defence against a charge of illegal eviction in the case of abandonment. If it does come to court, your defence would be strengthened by following the abandonment process to the letter. Read more about the eviction process in our ‘Ultimate guide to handling the eviction process’.
First of all, it is important to produce, with an independent witness present, an inventory of all the tenants' possessions left behind and ideally take photographs. This is especially important if they are of any value. It provides good evidence should you be accused of taking the tenant’s property.
The Torts (Interference with Goods) Act 1977 outlines what a landlord should do with left-behind belongings.
Under the Act you have a legal obligation to store and look after the tenant’s possessions until they are collected, within a reasonable period of time, otherwise you can legally dispose of them.
If you are in contact with the tenant you should ask them to collect the goods at their earliest convenience, but failing that, you should try to get written confirmation from the tenant that you can sell or otherwise dispose of the goods. If you know the tenant's new abode, you could deliver them there or send them to the tenant’s last known address.
If you can’t contact the tenant after making reasonable efforts, you will no longer be responsible for their items. The Act does not specify any time limit for which you are considered responsible and before you dispose of them.
A landlord insurance policy is a must when renting out property - normal household insurance is simply not adequate to cover all your risks when letting, so most buy to let mortgage lenders will require landlords to have appropriate insurance in place. Your landlord insurance policy will cover you for property owners’ liability, which would cover your defence if a tenant claimed that they were injured on your property.
It’s important to check whether malicious damage, which is common in an abandonment situation, would be covered by your landlord insurance policy. Total Landlord’s Premier policy covers malicious damage by tenants and their guests as standard.
If you needed to make an insurance claim, you would need to show that you’ve complied fully with all the regulations as set out above, otherwise your claim may be rejected. You should keep your insurers informed every step of the way.
“Carry out a comprehensive tenant reference and credit check before entering into the tenancy agreement, as this will greatly reduce the risks and help protect you from troublesome tenants. Most insurance policies, including ours, require a ‘four-point referencing check’. This involves two forms of identification from the tenant, (one of which must contain a clear photograph and be a driving licence or passport), a recent utility bill or bank statement, a credit check to confirm whether the tenant is in debt or has a poor credit history, and confirmation of employment. Ideally, the rent should be no more than 30% of the tenant’s salary.”
Steve Barnes, Head of Broking, Total Landlord
Most insurers will place a limit of 30 days of no occupancy before either cover is restricted or the premium is revised upwards. If the property is unoccupied, you should inform your insurers and check if there will be any changes to your cover.
An empty property is at much greater risk from vandals and squatters than one that’s occupied, so you need to take extra security measures and make regular inspections. Make sure there are no obvious external signs of a vacancy by removing waste and deliveries from outside, adding a light on a timer at night on the inside, and making sure all windows, doors and gates are securely locked.
In winter you need to make sure the heating is either on low or the water system is completely drained to prevent frozen pipes. Also, when the property is unoccupied the responsibility for paying council tax may fall back on the landlord.
There are tracing agents who will help you trace your tenants for a small fee. If you use a comprehensive tenant’s application form you should have enough information to form the basis of a good trace, and given enough time a lost tenant's data will usually show up on financial data searches, unless they skipped abroad.
Tracing agents will analyse up-to-date financial information and databases from multiple datasets to confirm a subject’s new address. Information on the individual is taken from credit reference agencies, consented and other public information databases, electoral roll, insurance information, loan applications, credit activity, and residency scores, to determine the individual's most recent address. You will need this if you are to take them to court. Total Landlord’s partner, Landlord Action, regularly achieves a success rate of more than 80% for tenant tracing. You can read more about tenant tracing in their guest blog for the NRLA.
Fortunately, ‘abandonment’, or, to use the correct legal term, ‘implied surrender’ of a property is not a common scenario, and regular contact with the tenant during the tenancy, including carrying out agreed visits, should reduce the risk in the first place. But if you find yourself on the receiving end and suspect that your tenant has abandoned your rental property, you must deal with the problem in the correct way if you are to minimise your losses and stay on the right side of the law. There are no short cuts in this situation and under current legislation a court order is the safest way for landlords to obtain possession of their abandoned property.
Work closely with your insurers and stick to the rules as they are set out above. You may decide to follow up on your absconding tenants by tracing them and getting them into court but that’s only worth it if you think you can recover, otherwise it may be best to put it down to experience and claim any losses against income for tax purposes.
This article applies primarily to England and is not a full interpretation of the law, only the courts can decide on the rules. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions and use this information only as a starting point for your own research.