Phone call from the council that I have acted illegally by changing the locks?

Dear Sara,

Please see the article on this subject by Tessa Shepperson of Landlord Law >> https://www.property118.com/i-think-my-tenant-has-left-can-i-change-the-locks/5736/

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.

I'm wondering how it could be proved one way or another that the tenant had left the keys. As keys are often copies, the tenant could have 4 copies and leave two but later claim that they hadn't as they would still have two copies in their possession. Or the landlord could say the tenant had left two copies when in fact they hadn't but the landlord had merely got another two cut.

In addition to Neil's excellent and detailed advice:

IF as you state your tenant contacted you and informed you she was moving out (in the mistaken belief obviously that the council would put her straight into temporary accommodation), then she has technically surrendered the property to you, especially if as stated in the above response she left the keys behind, or better still handed them to you (ideally with a witness to corroborate)!

The issue will be that she has turned up at the council offices and been informed that as she wasn't physically evicted by a bailiff acting with a court order she's technically made herself homeless and therefore probably isn't eligible for emergency housing. The council is helping her to backtrack on her mistake by accusing you of carrying out an illegal eviction.

IF she genuinely did surrender the tenancy, the question is will she admit this to the council and confirm you didn't break the law, and if she's now backtracking do you have any evidence to corroborate your version of events, either something in writing, or a witness?

If not, what is it the council is wanting you to do? Are they demanding you let her back into the property, or are they threatening you with legal action? If you decide that the damage is done and that you can't undo it, I would in the first instance write to the council refuting their claims and detailing the course of events which lead you to change the locks. Use the right legal terminology to show that you understand the legal position and that you acted in accordance with it. The tenant voluntarily and unambiguously surrendered the property to you having made an arrangement to collect the remainder of their possessions at a later date. It may even be worth asking a solicitor to write the letter as it implies that you are acting on the right side of the law and gives the impression to the council that you are not a soft touch to be bullied. The council are trying to avoid the responsibility of rehousing people until they absolutely have no other choice, this is why they advise tenant's to stay put until the bailiffs arrive.

Reply to the comment left by "Kate Mellor" at "10/04/2017 - 09:45":

Sara,
I'm not sure how 'desperate' you are in seeking advice, as your doing so on a free online forum ( of which there are many good sources of advice ) instead of belonging to a Landlord Association where you could get Advice BEFORE you acted.
Its generally best to get a tenancy surrender in writing, ( if not some evidenced form )
As for the position your now in, you may well need access to ongoing advice, potentially legal advice.

Dear Sara,

I agree with Neil, unless you were granted possession via the Courts and obtained a warrant which was enforced by the bailiffs you have no real way of safeguarding yourself from these types of accusations. This action can be classed as an unlawful eviction especially if some of the tenants belongings remain in the property. It also does not help that the tenant did not sign a Tenancy Surrender.

I would be interested to know whether the Council are asking for you to place the tenant back in the property and follow the correct eviction proceedings?

Do you have any correspondence from Social Services stating when the tenant would be vacating?

Reply to the comment left by "Dr Rosalind Beck" at "10/04/2017 - 09:24":

@ "I’m wondering how it could be proved one way or another that the tenant had left the keys. As keys are often copies, the tenant could have 4 copies and leave two but later claim that they hadn’t as they would still have two copies in their possession. Or the landlord could say the tenant had left two copies when in fact they hadn’t but the landlord had merely got another two cut"

This is a question of fact. If the tenant handed back the keys the fact that he/she had made other copies does not affect the legal position unless the tenant told the landlord that the tenant retained keys in which case the implied surrender might be negated. If the landlord or tenant lie about what has happened the court will have to decide who is to be believed on the balance of probabilities.

If she has gone to the Council and claimed that she has been locked out then you are in big trouble, next she will claim some possessions are missing.

I would recommend that you do not enter or change locks unless you have been told in writing by the tenant that they have vacated and have been handed back the keys and done any meter readings and the check out.