Is this a landlord setup?

Given that he has already contacted the CAB and acted in an erratic manner, it would be unwise to imply surrender.

I would serve Section 8 & 21 notices and go for eviction. Your AST should state that service at the tenanted address is the correct address for service, regardless of whether he is there or not. But also email/ send a text to confirm the notice has been sent, and send a copy to the guarantor.

Also confirm in the same manner that you have a key for him to collect and to have access to protect against an illegal eviction claim.

Speak to the guarantor and remind them that they are liable for an escalating liability and it is in their best interests to work with you to minimise this - ie to encourage the tenant to move on. If they do go, get them to confirm their surrender in writing and get this witnessed.

This is my first post, but as someone who has seen and heard most things, your course of action depends on what you want to do. If it was me i would prefer to get the tenant out quickly and then deal with trying to get the rent. The best way of "flushing him/her out" is to put pressure on the guarantor. Send them a invoice / demand for rent (enclose a copy of the guartantor agreement) give them 14 days to pay. When they don't spend the £60 on filing court papers so they know you are serious.

This will more than likely flush out the tenant and they will either show their hand or leave. From there you can take your next course of action. Its all a game of chess !

Hope this helps.

An interesting read. I would like to point one thing out though. Citizens Advice, Trading Standards and the Courts don't take sides. The reason I bring this up is that I was in the retail business years ago in a shopping center selling ex-catalogue returns. I had a visit from Trading Standards due to a run in with a customer. After explaining my business principles and the false economy of selling anything that was rubbish with reputation in mind and trading in a shopping center it soon became apparent that Trading Standards don't take side with someone who is "abusing their rights". In 4 years I had a couple of calls from Trading Standards concerning complaints and on explaining the situation in detail heard no more.

Keep proof as in text messages etc. If you act in a fair and proper manner people don't have any rights to abuse and obviously legal aid will be unavailable.

Don't be scared of Citizens Advice, make contact with details and if you are acting fairly they will move into the background and act as mediator.

Its a grey area - I like grey areas because it generates confusion and I take advantage of that and seize the moment to preserve my business. As Zahir says its a game of chess. You have to act strategically to out manoeuvre him but cover your defences just in case he is good at the game as well.

I would personally would be inclined to assume implied surrender. Possession is 9/10ths of the law in my eyes. You have evidence of surrender in the text and he has also lied to you. An audit trail of the sequence of events will prove he has lied if he tries to take you to court and that will weaken his case . The police and hospital will be able to verify the correct timing of the events and this will hugely discredit him as a witness. He is very unlikely to want to pursue this in a court.

Serve the sec 8 and 21 though to make him realise the game is up. He will be looking for an escape route out of the whole situation. You can offer him that. Take back the flat and store his possessions safely . Evidence everything and take a witness. Go after the guarantor for the rent. This will put the pressure on them both and their own relationship with each other. The guarantor will do some behind the scenes work to resolve it as suddenly he is the piggy in the middle and wont think it should be his battle to fight. They will start arguing between themselves and then you pop up negotiate and agree to return his possessions and not chase him for the rent and in return he confirms he will give up the tenancy and not pursue you for wrongful eviction.

I am not a lawyer and say that naturally you should seek legal advice to cover myself BUT this is the practical way i would deal with this. This type of route has yet to let me down when push comes to shove and I have to employ it. Good Luck with whatever you decide is the best course of action. There has been lots of good solid advice on here.

On the face of it this whole saga smacks of the usual “I want out of the tenancy how can I do that” syndrome and I have seen it many times before. Maybe the tenant has been attacked, maybe he has been in hospital, maybe he is recuperating with friends and family. But there is no reason he should go into hiding from you, as if he does want out of the tenancy he needs to be speaking
to you.

You face a very dangerous situation here though Alex and I like the Zahir comment about it being a game of chess. Sometimes in chess you make a move back to then go forwards again, and I think you need to do that here. You need to take one well thought through step at a time. Best advice I ever had was “Don’t ever write anything you would be uncomfortable with if it was read out in a Coroner’s Court”. This was after a wise manager saw a letter I had written that was a particularly firm arrears letter to a borrower who luckily didn't top themselves as a result!.

You must think like that Alex, because all the tenant is telling you in terms of being assaulted and fearing if he goes back to your property may well be true. OK so he has tripped himself up over the hospital discharge and police safe house stories. But they will be as nothing compared to him swathed in bandages and limping into Court on crutches, and his girlfriend and mother blubbering away.

I agree entirely with Mary Latham’s comments, and most of those of Tessa and Mark and their advice on other measures to take. You do indeed need to document every single step you take and have copious file notes of actions ideally witnessed by someone as they happen.

I would tread very carefully in terms of “implied surrender” especially in a scenario where all is not sweetness and light in your relationship with the tenant. One of the key deciding factors in abandonment and harassment etc cases is whether or not the Landlord acted in haste, and above all in pursuit of his own aims. For example go in without consent to do a gas safety renewal
and it won’t even get to Court. Go in with an estate agent to measure up so you can sell the place, or to show replacement tenants round when you have given a s21 to the tenant for no failure on his part, and it will be looked at entirely differently.

As I say forget implied surrender for now at least that is too convenient an argument and I would not go down that route, not yet at least. Unlike Mark however I would have no worries about changing locks as long as you can satisfy a Court, if challenged, that you were acting in the tenant’s interests as well. After all, did you know at that time that the tenant had changed the locks – if indeed he had changed them? Maybe he changed them because when assaulted they stole his keys? Far fetched - you wouldn't believe what they can come up with in Court Alex.

Long as you are available and can smile sweetly and hand over a key and cease any denying of occupancy to a tenant, you normally will not get any legal grief over it.

What was his answer to why he was not communicating? He also now seems happy for you to have changed the locks – protecting his interests as I said!! In any case he has asked you to “keep an eye on the property for him”. This to me is a very significant statement and one that could work badly against you in any claims of unlawful exclusion etc – hardly the statement of a tenant who does not intend returning is it? That he wants you to “keep an eye on the place” for him?

Who is the Guarantor – the girlfriend’s mother (I hope not). Is it a joint tenancy or just in his name?

Unless the mother is the Guarantor do not deal with her and unless the girlfriend is a named tenant do not deal with her either. Unless the tenant asks you to – and only on condition they conduct themselves (and his matters) in a civilised manner.

The tenant claims he cannot go back to the flat – but he must mean for now and while recuperating as he has asked you to keep an eye on it for him? It is his choice not to return, but as long as he pays the rent he is in no different a position than if he was on remand. He’d like to occupy but is prevented from doing so – or at least in his eyes and for the time being.

I would not even contemplate storage at this stage either. Accept the mantle of involuntary baillee and the obligations so assumed under The Tort of Goods Act and you will be spending a lot on storage and for up to three months. Deal with the goods once you are LEGALLY in possession.

I agree with Tessa here I think that a s8 must be issued on day 32 which is barely two weeks
away. Not a long time to wait Alex to have the Law 100% on your side. In fact I’d be tempted to issue one now just under grounds 10 and 11 plus 12 and then issue a new one including ground 8 on December 2nd stipulating that the earlier one is cancelled and obsolete.

Make sure you send one to the Guarantor you must keep them fully involved – even if it is the girlfriend’s mother!!. Guarantors I once heard described as “A fool with a fountain pen” and it is true they have all the liabilities and only two benefits. One is having their liability limited to what they have signed for.

The other and the one that impacts on you is to be advised of any contingency arising which might at some future date give rise to a claim under their guarantee.

In other words if there are problems tell them immediately. Focus on the Guarantor is excellent advice – unless it is the girlfriend’s mother!!

Make sure if the tenant does want access that you give it to him, and make sure he has a key. You do not, as you rightly identify, want to be accused of denying access and unlawful possession. I would also document the fact that you have already offered a key and it has been refused

Other thing to do is seek specialist legal advice to make sure you have taken all the steps you need to, and as advised by others here, to protect yourself. You could swear an affidavit with the solicitor to events so far, I think for £7.50 fee is it that would be a good move

Hi Mike

Superb and very well thought out response, as are many of the other responses here too.

What makes you think we have a different point of view on the changing of the locks?

I would have done exactly the same thing, but I would also have covered my own arse by getting a statement from the neighbour, as I have advised Alex to do.

Thought I would give you an update on the tenant who disappeared without paying his rent and the police being involved! Firstly many thanks to those of you who took time to give some good advice!

I started to worry over the fact I had to change the locks and the tenant did not have a key because he "went into hiding" some of you suggested I send the key to the guarantor which I did with a request for rent payment. I sent it recorded delivery but when I tried contacting via phone he ignored all contact. I could see this was going to drag on and on so I spoke to the Agent I've used in the past who suggested I have a word with the Guarantor and come to some agreement where if the Tenants move out the months rent would be forgotten about provided they moved out in the next week. The Guarantor didn't respond so I resorted to contacting the Tenants girlfriend at work as I felt I had no other option! She agreed to move out straight away but when I asked why she or her boyfriend would not contact me she denied any knowledge of calls or text messages and they didn't want to live there anymore anyway! They have moved their stuff out and signed a letter agreeing that the Tenancy Agreement has been cancelled giving me permission to re advertise the property and putting it on the market. I have to say I'm happy to see the back of them and grateful they did not trash the property (although I made sure I was there when they moved out).