The landlord must be sure that the tenant has surrendered the tenancy by abandonment before letting the property to somebody else or changing the locks. The best way to do this is by contacting the tenant to ensure they are abandoning the property. Returning the keys is a clear indication from the tenant that they are agreeing to surrender the tenancy.
The law surrounding taking possession after abandonment has changed with the introduction of the Housing and Planning Act 2016. Once the landlord is certain that the tenant has left the property, under the new law they can now seek possession without a court order.
The landlord can repossess an abandoned property where rent is unpaid. The amount of rent arrears that allows a landlord to take possession depends on the frequency of rent payments outlined in the tenancy agreement. For example, notice can be given after rent is two consecutive months’ in arrears if rent is paid monthly. The landlord can then bring the tenancy to an end by adhering to the following procedure:
- Serve a First warning notice that requests the tenant, occupier or deposit-payer to respond and pay rent within 8 weeks.
- Serve a Second warning notice if there is no response.
- If the tenant still hasn’t responded, a Third warning notice must be placed on a noticeable part of the property. This must be served at least 5 days before the end of the initial 8 week period outlined in the First notice.
If the tenant responds to any of the notices or makes rent repayments then the abandonment procedure ends.
The new procedure provides a more streamlined and cost effective method for landlords who have their tenants abandon their property. Prior to the law change, the landlord would have to issue a Section 8 possession notice to lawfully evict the tenant on the basis of non payment of rent. This lengthy process could potentially leave the landlord without many months’ worth of rent.
The procedure outlined above should only be used if the landlord is sure that the tenant has abandoned the property.
If the landlord is unsure as to whether the tenant is living in the property or not, it is best to end the tenancy by issuing a Section 21 (Form 6A) notice in England or a Section 21 notice for Wales, rather than run the risk of unlawful eviction proceedings (especially if the tenant has left their belongings or furniture in the property). If the landlord has re-let or repossessed the property, they also run the risk of being charged with breaching the terms of the tenancy agreement.
The landlord must make the necessary checks to confirm that the tenant has abandoned the tenancy. It could be that the tenant is on a long holiday, in hospital or undergoing a short prison sentence. To gain evidence as to whether or not abandonment has occurred, the landlord can make enquiries by either:
speaking to the neighbours
checking to see whether the keys have been returned
finding out if the rent is still being paid
contacting a relative for information on the tenant's whereabouts
finding out if belongings or furniture have been removed from the property