Access after section 8/abandonment

Hi Graeme

This sounds like it could be a trap so be very careful. You have not got absolute proof the tenant has surrendered possession so unless you have this you can't just assume and enter.

Please see Tessa Shepperson's article "I think my tenant has left, can I change the locks?" >> https://www.property118.com/i-think-my-tenant-has-left-can-i-change-the-locks/

You need to be very, VERY careful about this. Once a property has been let to a tenant it is effectively his. He is entitled to live in it without interference from the landlord.

This is set out in a clause (rather quaintly called the ‘covenant of quiet enjoyment’) which is implied into all tenancy agreements, whether it is set out in the written terms and conditions or not. Mostly it is.

So the landlord has no right at all to go barging in, whether he thinks the tenant is there or not. After all a tenant does not HAVE to live in the property if he does not want to. Also, he could be on holiday, in hospital or in jail. None of which entitle the landlord to go in and repossess.

So the fact that the neighbours have not seen your tenant there for a while does not mean that you are legally entitled to just go in and change the locks. For example, if the tenant was merely on a long holiday and he came back to find that you had changed the locks he would be entitled to an injunction to get let back in again and financial compensation from you, particularly if you had re-let the property to someone else. Plus you would almost certainly be ordered to pay his legal costs as well. It could turn out to be a very expensive mistake.

If I also tell you that there are believed to be some tenants who deliberately pretend to have vacated, so that they can entice their landlords into repossessing to potentially sue them for damages, you will appreciate that there is a great need for caution in this situation.

However there are times when you can go in and change the locks. How can you tell when this is?

The doctrine of implied surrender

The legal justification for repossessing a property in the absence of the tenant is that you are accepting what we lawyers call an ‘implied surrender’. This is when the conduct of the tenant is inconsistent with an intention to continue with the tenancy. You can then accept this implied surrender offer by re-entering the property and changing the locks, and this then ends the tenancy.

The best and clearest example if this is if the tenant stops paying rent, moves out all his possessions, and leaves the keys behind. Giving up the keys is considered to be a symbol of giving up possession. So if you have a situation where they have been left behind you are generally safe to repossess – so long as the tenant has actually moved out, and has not just left them behind by mistake while popping out to the shops!

However, if the keys have not been left behind, particularly if some of the tenant’s possessions are still there, you should back out of the property (assuming you have entered with your keys and an independent witness, to check the situation) and obtain a court order for possession.

Obtaining a court order for possession is the ONLY 100% safe way to repossess a property with no risk of any claim for compensation for unlawful eviction. Anything else is a risk. You may consider that it is a risk worth taking, particularly if the tenant is in serious arrears of rent. However it IS a risk and any solicitor you consult will advise you to go to court.

What if you have no keys or way of checking? For example if the flat is on the sixth floor and you cannot peer through the windows? Then your only option is the court order for possession.

The abandonment notice myth

“But” you are probably saying, “Why don’t you just put an abandonment notice up on the door?” “Because” my answer would be “they are nonsense”.

When I first started working in property law, I had never heard of an abandonment notice. They are in none of the legal text books. They are a myth perpetrated by landlords and agents who don’t want to go to court. But they do not, and cannot have any legal efficacy.

Here’s why:

If the tenant has given up and gone, if there is a genuine situation of implied surrender, you do not need to put any notice on the door. You can just go in and change the locks, now, entirely legally.
If, on the other hand, it is not an implied surrender situation, if the tenant is say, merely staying longer than expected with her Great Aunt Mary (perhaps GA Mary has fallen sick, and she is staying to nurse her), then you have no right to go in and change the locks. Any attempt by you to do so will certainly be unlawful eviction which is both a criminal offence and (as we have seen above) a civil wrong entitling the tenant to bring a claim for compensation.

The problem is working out which of these situations apply. Things are not always clear cut.

Reply to the comment left by Neil Patterson at 16/01/2019 - 11:09
Graeme has not really stated the reasons why he believes the property appears to be empty, but if he has a genuine and reasonable belief that the property has been abandoned, then he could send abandonment notices/letters to the tenant and see if he gets a response. A lack of response would add to the reasonableness of his belief that the property has been abandoned, particularly if he can see that the rooms are empty of possessions, neighbours report that the tenants have moved out, there is no answer at the door, mail is piling up, etc, etc.

The more indicators and evidence of abandonment, the more likely it is that there has been an implied surrender, and if he did go against standard legal advice (i.e. get a court order), then his genuine belief in, and evidence of, abandonment could arm him with a possible defence against any subsequent malicious accusation of unlawful eviction. Of course the best way to deal with this, if there is any uncertainty at all, is to obtain a court order for possession.

Graeme is getting great legal advice albeit complicated but none of it has touched on his observation that the windows are open. So while he goes through the legal processes suggested the windows remain open so burglars/intruders could gain access and the property is vulnerable to extreme cold, damp & condensation and subsequent damage resulting. If the heating has been left on and the tenant is not paying rent he/she will likely not pay heating bills either so Graeme will be lumbered with picking up the tab for this while the legal processes are ongoing. So is the fact that the windows are open irrelevant in Graeme's situation?

Reply to the comment left by Richard Adams at 17/01/2019 - 11:45
Hello, why would he be responsible for bills while the property still is lawfully occupied by the tenant. He is not allowed to go in and left in a limbo. Until the possession taken place the bills should be tenants responsibility unless it says otherwise in the contract.

I think you will find that a Landlord has the right to enter his property for reasonable reasons so long as he gives reasonable notice and the tenant doesn't refuse.

Is a text message reasonable means to deliver such notice if this is the agreed or only method of communication? The landlord should use all possible means to deliver this important and urgent notice, eg email, whatsapp, recorded delivery snail mail etc etc.

If Graeme had left a hand deliver paper notice on his previous visit then I think he would be covered.

If the tenant doesn't reply within 24 hours then Graeme is reasonably safe to enter the property to secure it. He should take a witness. This does not give him the right to change the locks and/or take back possession.

Reply to the comment left by Ela at 17/01/2019 - 12:31
You misunderstood what I was driving at Ela. Of course Graeme's tenant is responsible for the heating bills BUT if as may be likely she has done a runner leaving rent unpaid she will doubtless not pay heating bills either. Who will the supplier turn to - Graeme of course so why can't he at least shut the windows if the heating has been left on?

Can you not just give 24 hour minimum notice then enter which will give you a better clue whether they've gone. The main problem I have is when they've left something behind, which is generally junk which I take to the tip! In your case the Windows were left open so some naughty thief must have stolen what they had left, shame!

It has been known for tenants who feel agrieved at some action taken by the landlord (for instance having the temerity to ask the tenant to leave if the rent has not been paid) to vacate without notifying the landlord, leaving the heating on and all windows open, sometimes also with the bath taps running and the plug in. The tenant does not of course reply to communications from the landlord or leave a forwarding address. As Neil said in his initial comment, the tenant may have laid a trap for Graeme, knowing the impossible position the law puts landlords in.

Reply to the comment left by Old Mrs Landlord at 17/01/2019 - 17:40
It's not an "impossible situation". Give notice, get no reply, go in and shut the windows. Simples!

Reply to the comment left by Rod at 17/01/2019 - 16:37
I agree Rob.
Time is of the essence here. 😉 😉
If you had the forethought to take with you a "notice of intention to enter" on your last visit and hand delivered it, then 24h will have passed and you will be covered.
Go round there now and secure your property.