Tenant keeps changing mind and date for ending tenancy?

Hi Alan,

In this instance I cannot see it is clear in writing the tenant has vacated so please be very careful.

Please see Tessa Shepperson of Landlord Law's article >> https://www.property118.com/i-think-my-tenant-has-left-can-i-change-the-locks/

"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."

Also From an Article by The Sheriffs Office:

>> https://www.property118.com/disposing-of-goods-left-in-properties-after-eviction/83626/

In most eviction cases tenants and squatters remove everything they own from the property – and sometimes plenty of items they don’t own!

But there are instances where the occupant has disappeared and left belongings behind. So where does that leave the landlord – can he dispose of them or does he have a legal liability to look after them?

Landlord’s legal obligations

The Torts (Interference with Goods) Act 1977 makes provision for abandoned goods under S12. The goods still remain the property of the tenant (referred to as the bailor) and the landlord (referred to as an involuntary bailee) has an obligation to take care of the goods and make reasonable attempts to trace the tenant to return the goods.

Selling the goods

Under S12 of the Torts Act, if the bailor breaks an arrangement to take delivery of the goods, or the landlord/bailee is unable to trace the former tenant/bailor, then the bailee is permitted to sell the goods, provided he gives notice and has taken reasonable steps to trace the bailor.

Sale is normally by auction and the bailee is permitted to deduct from the sale proceeds costs he has incurred, for example storage and sale costs. If there are rent arrears the remaining sum may be used to offset these provided the correct procedures have been followed.

Giving notice

There is a prescribed form of notice, which must:
– Be in writing either by registered post or recorded delivery
– Specify the name and address of the bailor and give details of the goods and the address where they are held
– State that the goods are ready to be delivered to the bailor
– The place of sale and the date on or after which they will be sold, as well as which costs will be deducted from the proceeds

The notice should also be attached to the property so it can be seen.

There is no set notice period, just that it should give the bailor reasonable opportunity to take delivery of the goods. 14 days is cited by some lawyers as being appropriate. However, if the bailee wishes to demand payment for items such as sale or storage charges, then at least three months’ notice is required (schedule 1, Part II – para 6).

I would ask your agent to contact the tenant and explain that the longer it takes her to return the keys the more rent debt is wracking up. Explain that she should simply return the keys to the agents OR put the keys through the door of the property with a note saying she’s permanently left the property and you will accept that as the end of her tenancy and stop debts growing larger. Give a date when you will be returning to the property for an inspection and that you will expect to see the keys and note there by that date (say one week). Many people who owe money can’t face their creditors and avoid dealing with the issue, so giving them a way out can be more likely to get a response.

If this works - great! If not, don’t waste any more time, apply immediately for your warrant for possession. Yes it will cost around £355, but I’m sure the months without rent have cost you far more than this already.

Do you have a current address for this tenant? Is she working? If so, if you receive a judgement against her you would be best to apply for an attachment to earnings rather than sending in bailiffs because let’s face it she probably has nothing of value to repossess!

Maybe she's lost the keys!! Depending on what she left you could always tuck her belongs up in a nice dry wheels bin in the corner of the yard therefore still on the premises! Who was it said 'the law's an ass" e.g. one tenant left a half empty bottle of washing liquid, hardly worth a court order! They should introduce a time limit on property left on the premises, " one month then off to the tip"!

If the tenant has left small items and rubbish, they can no longer live there, so surely you can go in bag the items up ready for their collection and re-rent. Possession is nine tenths of the law, although with the way courts are hurting landlords these days I am probably totally wrong!
Precisely why I have started disposing of my BTL portfolio.

If the tenant has emailed that "X will be the last day of my tenancy" and the LL or agent has replied accepting that date, then it seems to me that notice to end the tenancy has been given and accepted, and the tenancy ends on that date. Double rent is then claimable from that date if posession is not returned.

Given the above and that the tenant has moved out, you may or may not need a court order to repossess (see a lawyer).

I do not understand why a S8G8 notice was not issued last year and why no possession proceedings have been started.

Reply to the comment left by Neil Patterson at 14/06/2018 - 13:53
Dear All,

Thank you for the responses so far. I have found these extremely helpful and in agreement with my own conclusions and those of my agent.
To answer Michael's question about the delay and not issuing a S8 notice, the tenant had been a relatively good one for more than 6 years, only occasionally a few days late with the rent but a single parent in employment who has always looked after the property - until recently. So, this tenant has had a little more leeway than I would normally extend.

In response to Kate, thank you and I have also done what you suggested and the tenant still has a couple of days to respond. I've also allowed a the tenant a contingency should the keys have been lost as suggested in Rod's reply.

Thanks again and more advice is always welcome.

Alan