I think my tenant has left, can I change the locks?

This is the eighth in a series of 10 articles written by specialist landlord & tenant solicitor Tessa Shepperson, founder of the online Landlord Law Service.

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.

If you want to read more about this, take a look at two blog posts on my Landlord Law blog, one on implied surrender and the other on abandonment notices.

There is also a ‘horror story’ on my main Landlord Law site which you can read here.

But the main message is, never change the locks on a property unless you are COMPLETELY sure that the tenant has vacated, and left his keys behind.  Otherwise it could cost you dear.

OTHER ARTICLES IN THIS SERIES

1. Have you got what it takes to be a landlord?
2. Make sure your property is legal before you rent 
3. Check out your tenants or live to rue the day
4. Why you need to have the right tenancy agreement for your letting
5. All about tenancy deposits
6. How to increase rent the proper way
7. Help!  My tenant has stopped paying rent – what do I do?
8. You are here | I think my tenant has left, can I change the locks?
9. What do you do if your tenant won’t leave when their section 21 notice expires?
10. The various and wondrous ways that tenancies end.

Tessa Shepperson is a solicitor specialising in residential landlord and tenant law. She practices online via her web-site Landlord Law www.landlordlaw.co.uk and blogs at the Landlord Law Blog www.landlordlawblog.co.uk.

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