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Abandonment of a Rental Property - Advice for Landlords Looking to Enter Their Rental Property

February 19, 2012 | Comments: 0 | Views: 190

I was chatting this week to my joiner Steve. He was having a nightmare!

Steve had done most of the work on my new cookery school in Bakewell, so I'd seen a lot of him over the past nine months. What I hadn't realised was that he managed a number of BTL properties on behalf of his wife. I knew Steve was into his Morris Dancing but not property management, he had no idea I ran a landlord advice website.

So now we'd outed our secret landlord lives to each other he went on to explain how they'd just had a second set of tenants leave without paying and he'd just been drafted in to change the locks. Oh dear! I said.

Landlord's classic mistake

Steve had made the classic landlord mistake.

He'd been getting hassle from the tenants over the dying days of their tenancy, who were behind with the rent. When they suddenly dissipated from the property he took it to mean they'd moved out / 'done a runner'. In his mind it presented the perfect opportunity for him to jump in and change the locks in case they decided to return. Wrong!

Disappearance doesn't end the tenancy

Paradoxically, the disappearance of the tenants doesn't actually mean the tenancy has ended.

Welcome to the murky world of abandonment where nothing is as it seems!

Abandonment is the voluntary surrender of a legal right, for example an interest in land or property including a tenancy.

However, the problem for landlords is that by virtue of the S5(2) of the Housing Act 1988 a tenancy can only be brought to an end by the landlord obtaining a possession order.

I know that this sounds crazy when you know that the tenant has basically 'done a runner', probably not paid the rent and possibly damaged or taken property from the property. Justifiably many landlords would feel in this situation a moral right to get their property back.

Unfortunately, even if the tenant had packed their bags and left, the tenancy continued. In fact it was an offence under the Protection of Eviction Act for a landlord to unlawfully deprive or attempt to deprive a "Residential Occupier" of the premises or any part thereof. Any landlord convicted by the courts of this could then be sued for damages by the courts for illegal eviction including claiming financial damages from the landlord.

The danger for landlords

One remedy for tenants who have abandoned their rental property is to force their way back into the property including breaking the new locks. Funny but this doesn't happen very often. I would have some respect for tenants who actively enforced their right to stay. However, just as in Steve's case the majority of tenants are not usually desperate to return to face any unpaid rents or damage they have left behind.

But still, despite all this posturing over the moral high ground, the law is the law.

As it currently exists any landlord with a property where the tenants have disappeared will still need to gain possession though issuing a section 21 or section 8 notice.

In most cases the section 21 notice will be quickest and gives the landlord a guarantee that the judge should grant possession on the expiration of the notice period. In issuing your section 21 notice landlords should make sure that they use the correct one. If the tenancy is still within it's fixed term then you will need a section 21 (1) b. If the tenancy has become periodic then you should use the section 21 4 (a).

Both versions of the section 21 notice are free to download within our free property management software.

The landlords dilemma

The dilemma for many landlords whom face this situation is that even if they are convinced that the tenants have really disappeared; they would still need to wait around for several months needlessly whilst trying to get legal possession. These are months where the landlord can't refurbish the property, is unable to market it.

It could easily be a further 6 months of no rents paid on top of already taking a hit from the original tenant leaving without paying.


There are several indicators that suggest abandonment has occurred

- the tenant stopped paying rent

- the tenant leaves the keys to the property

- the landlords attempts to contact the tenant or a relative have been unsuccessful

- the neighbours have no knowledge of the tenant's circumstances

- the landlord can see through the windows of the residential investment property and is unable to see any sigh of the tenants possessions.

Abandonment options

The choice for landlords is a difficult one.

Do they risk being sued by the absconding tenant or do they go through the long-winded procedure of obtaining possession of their property?

One way a landlord could help themselves if they did decide to change the locks as Steve has done would be to provide a sign with details of where the tenant could get a new key in case they returned.

However where the landlord encountered a professional scammer and particularly one where they have not returned their keys it would be virtually impossible to prove that the tenant had no intention to return.

Landlords should be clear, there is no legal basis for the act of abandonment overriding an existing tenancy. A landlord would be left trying to prove to a Jury should a case arise that you might have broken the law by changing the locks but at least you took all the necessary steps to mitigate against the harm done to the tenant if they should return.

In other words 'a kind and considerate 'law breaker'!

Gumtree free but costly?

Going back to Steve's current plight. One thing that transpired from his predicament was that several of the recent tenants had come through Gumtree. Now I know that the website is free for landlords to use for two adverts per year but my experience with Gumtree has been exceedingly mixed. I've found that I could get a lot of enquiries but the quality was often poor. This is fine if you are prepared to sift through the chaff and carry out intensive credit checks and referencing on them.

One full proof method that I would highly recommend is the requirement of the tenants to submit their last 6 or 12 months bank statements. It transpires that Steve had not referenced the tenants either. A definite NO NO!

Landlords live and learn

The reality for many landlords is that we are not professionals. We have not trained, we have no degree in 'landlording' or even taken a basic business course in many cases. Sometimes our hearts get the better of us and we let our rental properties to prospective tenants because they seem nice decent people. Unfortunately, not all of them are.

So landlords need to learn to put in the appropriate checks into the selection process such as those I've mentioned above. Good honest tenants who have nothing to hide will go along with it.

The others - you don't want!

Chris Horne is an experienced landlord and property professional who now runs the website Property Hawk, a site aimed directly at UK Landlords. The site informs on subjects such as section 21 notice information and incorporates free landlord software that enables landlords to track all their financial data relating to their portfolio. It allows users to print tenancy agreements and other forms FREE FOREVER. The site generates a real time rent book for each property as well as calculating a landlords tax liability. The service is totally free to use at Property Hawk

Source: EzineArticles
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