My tenant has abandoned the property, or at least it appears to be the case, since there’s been no sign of him for 3 weeks now. He owes me 2 months’ rent but he has left all his possessions in the property. What can I do?

This is a common story and one which we get asked about frequently on the LandlordZONE Forum.

The legal term for this is abandonment.

The major problem for the landlord in this situation is that legally there is no conclusive evidence that the tenant intended to surrender the tenancy, which is valid until the end of the fixed-term.

The fact that all the possessions are still present appears to support that view.

Even though the tenant appears to have left owing 2 months’ rent it does not give the landlord the right even to enter the property, let alone take it over and re-let.

Had the tenant handed back the keys, given notice of intention to surrender, or indeed had a removal van round to remove possessions, then the case would be a straightforward one and the landlord could safely take-over again.

As it is the tenant may be on an extended holiday, in hospital, unavoidably delayed somewhere or even in prison – the landlord takes over at his peril.

A landlord cannot bring a tenancy to an end, according to the Housing Act 1988 (S5(2) without “(a) an order of the court, or (b) a surrender or other action on the part of the tenant.”

Where it is not clear that a tenancy has ended, even though the tenant appears to have left, great care is needed on the part of the landlord to avoid being accused of illegal eviction – a serious offence which could result in a criminal record for the landlord.

Under section 2(b) “other action” could be an unequivocal act of abandonment, but you must make every effort to establish this as fact – you could be asked to justify your action in court later, if you do take-over.
Particularly when furniture is left there is a real risk with taking possession, if you don’t have a court order.

You need to make every effort to contact the tenant and only take possession after posting an abandonment notice, if you truly believe the tenant has abandoned.

If your tenant completed a comprehensive Tenancy Application Form you should have emergency contacts (next of kin) and employers etc. There’s also neighbours, who may be able to help you contact friends and acquaintances.

Post an abandonment notice on the inside of the door, providing you can get access. Posting outside may attract vandals or squatters.

If you need to remove furniture you need to be aware of the requirements of the Torts (Interference with Goods) Act 1977. A landlord is responsible for safeguarding a tenant’s property – he acts here as bailee of the goods.

You should have a clause in your tenancy agreement outlining what will happen to tenant’s goods in cases of abandonment – how notice will be served, how long they will be kept and how they will be disposed of, in accordance with the legislation.

Tom Entwistle is a founding director and Editor of LandlordZONE He has been a private investor in residential and commercial property for over 25 years.

This article first appeared in Landlord Magazine – Summer 2008 – Subscribe to this FREE Landlord Magazine