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bunny
07-03-2009, 22:41 PM
Hi

I'm after some thoughts please. A troublesome tenant who was under a S21 and with rent arrears has abandoned the property this week, one month before the expiry of the S21a. I haven't been in the flat yet but I do know that he has moved all of his possesions out except some rubbish (literally) and a sofa. He left the flat unlocked. I locked it again for security reasons but didn't enter. I have served a S8 ground 8, 10 and 11 aswell. That's what I went to do as he'd just reached two months rent unpaid and that's when I realised he'd abandoned so I delivered it anyway under the door.

I've taken photos of post building up (as it it delivered to a communal area and other evidence externally to the flat). I've posted an abandonment notice under the door basically stating I believe the property to be abandoned and that if there is no contact within 7 days I will enter with my key to inspect.

I have read alot about abandonment but it's my first in practice. I don't believe he'll come back but he was an awkward/aggressive individual and I was expecting difficulties in obtaining possession so his early vacation is a bonus.

I do not have the keys though. They may be in the flat but I didn't enter at this stage and just locked the door.

My thoughts are that I will enter next week after the 7 days have passed, take photos, search for the keys and then post another abandonment notice internally on the door stating that if no contact locks will changed within 7 days. I hope I find keys! Then if I do change the locks I will still post another abandonment notice on the outside stating anyone who thinks they have legal access can call XXXX for keys. I am in no real rush to change the locks as I am not overly worried about the security of the place.

I have NO means of contacting the tenant or even leaving a message. Nothing at all. He has no phone/email etc, no next of kin etc etc.

The rent arrears are peanuts really and I doubt another CCJ will make any difference to him and I still have the deposit to account for some so for now I just want to move on with reletting once refurbed. It's a long wait to get a possesion order based on the stage I am at with notices. I know that's the best course but any advice please on my plan to avoid the cost and time of possesion being granted by a court. I can store the tenants sofa for as long as necessay.

thanks

mind the gap
08-03-2009, 00:26 AM
Hi

I'm after some thoughts please. A troublesome tenant who was under a S21 and with rent arrears has abandoned the property this week, one month before the expiry of the S21a. I haven't been in the flat yet but I do know that he has moved all of his possesions out except some rubbish (literally) and a sofa. He left the flat unlocked. I locked it again for security reasons but didn't enter. I have served a S8 ground 8, 10 and 11 aswell. That's what I went to do as he'd just reached two months rent unpaid and that's when I realised he'd abandoned so I delivered it anyway under the door.

I've taken photos of post building up (as it it delivered to a communal area and other evidence externally to the flat). I've posted an abandonment notice under the door basically stating I believe the property to be abandoned and that if there is no contact within 7 days I will enter with my key to inspect.

I have read alot about abandonment but it's my first in practice. I don't believe he'll come back but he was an awkward/aggressive individual and I was expecting difficulties in obtaining possession so his early vacation is a bonus.

I do not have the keys though. They may be in the flat but I didn't enter at this stage and just locked the door.

My thoughts are that I will enter next week after the 7 days have passed, take photos, search for the keys and then post another abandonment notice internally on the door stating that if no contact locks will changed within 7 days. I hope I find keys! Then if I do change the locks I will still post another abandonment notice on the outside stating anyone who thinks they have legal access can call XXXX for keys. I am in no real rush to change the locks as I am not overly worried about the security of the place.

I have NO means of contacting the tenant or even leaving a message. Nothing at all. He has no phone/email etc, no next of kin etc etc.

The rent arrears are peanuts really and I doubt another CCJ will make any difference to him and I still have the deposit to account for some so for now I just want to move on with reletting once refurbed. It's a long wait to get a possesion order based on the stage I am at with notices. I know that's the best course but any advice please on my plan to avoid the cost and time of possesion being granted by a court. I can store the tenants sofa for as long as necessay.

thanks

Even if you do find his keys, this is no guarantee he hasn't had copies made - so for your own security (and that of future tenant), do you not think it might be best to change locks anyway?

Preston
08-03-2009, 00:31 AM
Hi

You have clearly done alot of reading on the subject so I don't have too much to add. Just a few thoughts.

There are broadly three possibilities in situations such as this:

a) the tenant still occupies the premises as their only or principal home and they remain an AST. The tenancy can only be ended by the service of the appropriate notice (say, section 21) followed by a court order.
b) the tenant has ceased to occupy the premises as their only or principal home but they do not wish to give up possession. In this case, they will be an ordinary contractual tenant and their tenancy can be ended by the service of a notice to quit.
c) the tenant, by their actions, has offered to surrender the tenancy. The tenancy will continue unless you accept the surrender, usually by entering into possession.

The evidence for (c) is fairly common sense kind of things like, are their belongings still in the property, what have they told you about their intentions, do any of the neighbours have any relevant information, where does their mail get sent to, are they still paying their rent, etc. If there is sufficient evidence, you can enter into possession and as soon as you do, the tenancy ends (provided your assessment that the tenant has offered a surrender is correct).

You can indeed strengthen your case by placing a notice on the door stating that you intend to enter into possession within a reasonable period of time - you have suggested seven days in your post. You might strengthen your positin even further by issuing a notice to quit, since the "test" of failing occupy as an only or principal home is easier to fulfil than one of giving up possession entirely.

So, in summary, my advice is to enter into possession if the evidence of surrender is strong. If the evidence is uncertain, serve a notice to quit along with a letter stating that you intend to enter into possession once the notice has expired. Reassess the situation at that point.

Hope this helps.

Preston

bunny
08-03-2009, 00:32 AM
Oh yes MTG, I will be changing the locks. My point in my post was that whilst I am going through the abandonment process I am not in a hurry to change them i.e I am happy to go through whatever is the best process in order to protect myself. Barging in and changing the locks at this stage just didn't seem a wise idea as he still technically has a tenancy. I am not worried about the immediate security of the flat (now I've locked the door!).

However, advice on when I would safe to change the locks would be appreciated. I want to be careful and do things properly.

mind the gap
08-03-2009, 00:33 AM
Oh yes MTG, I will be changing the locks. My point in my post was that whilst I am going through the abandonment process I am not in a hurry to change them i.e I am happy to go through whatever is the best process in order to protect myself. Barging in and changing the locks at this stage just didn't seem a wise idea as he still technically has a tenancy. I am not worried about the immediate security of the flat (now I've locked the door!).

However, advice on when I would safe to change the locks would be appreciated. I want to be careful and do things properly.

I think Preston has answered this pretty comprehensively, above.

bunny
08-03-2009, 00:47 AM
I think Preston has answered this pretty comprehensively, above.


Yes, thanks, I think our posts crossed.

Preston, many thanks but sorry, I am a little confused about a piece of your advice:

"So, in summary, my advice is to enter into possession if the evidence of surrender is strong. If the evidence is uncertain, serve a notice to quit along with a letter stating that you intend to enter into possession once the notice has expired. Reassess the situation at that point."

I've already issued a S21a but it hasn't expired yet. Is that what you mean by notice to quit? Are you suggesting I could wait until the s21 expires and then I'd be safer? If the keys are in the flat (which is quite likely as he hadn't locked the door) would that give me much greater proof in respect of taking possession sooner rather than later?


ETA: I've re-read your advice and I see that a notice to quit is something different to the S21. Any advice on wording please in such a situation?

Preston
08-03-2009, 01:05 AM
I've already issued a S21a but it hasn't expired yet. Is that what you mean by notice to quit? Are you suggesting I could wait until the s21 expires and then I'd be safer?

Sorry, no, a notice to quit is different from a section 21 notice. It is a requirement of any assured or assured shorthold tenancy that the tenant occupies the premises as their only or principal home. It is possible to have many homes, but only one of them, by definition, can be the principal home. If the tenant ceases to comply with this condition, but there is no surrender, the tenancy will become an ordinary contractual one.

Ordinary contractual tenancies can be ended by the service of a notice to quit. The notice must comply within any relevant term in the tenancy and with section 5 of the Protection from Eviction Act which requires that the notice be in writing and specifies a minimum period of four weeks notice, (or a period of the tenancy, whichever is the greater). It should also contain certain prescribed information. I think there might be a landlord's notice to quit on this site, but if not google that phrase and various examples will appear. The prescribed information is very simple, essentially advising the tenant for their rights and suggesting that legal advice be obtained.

So, whilst you suggested a notice on the door giving seven days notice, the notice to quit will usually give at least a month's notice (assuming the tenancy was monthly). Its a slightly more cautious approach if you don't already have enough evidence to accept a surrender.


If the keys are in the flat (which is quite likely as he hadn't locked the door) would that give me much greater proof in respect of taking possession sooner rather than later?

Possibly, but it would depend on the precise facts. If the flat is empty but the keys are left in a place in such a manner as to suggest that they have been left for collection by the landlord, then this may well add to the case for an implied surrender. If, on the other hand, they were found amongst various belongings, then their significance may be less obvioius.

Does this help?

Preston

bunny
08-03-2009, 01:23 AM
Yes that does help, absolutely. Thank you.

I am quite anal :o and I want to do things correctly with no come back.

I am confident he has gone. I was a little naughty in that to check he had gone (I was convinced he had as he has removed all his stuff from the communal areas and we've had a battle over that!) I asked one of my trades people to put their ladders up (to do an emergency gutter repair!) as it's a 2nd floor flat and the flat is empty bar the sofa and light rubbish like an odd sock from what I can see. Post is dated back to 12th feb (a letter from me for rent arrears) plus more but then he never does read his post and I am sure he was still there then. Meter readings have been taken as I can access them from the communal areas so they won't move either as there is nothing in the flat.

I was only in his flat a couple of weeks ago to do a gas safety inspection so I know exactly what was where and it's all gone.

His parting words when I served the S21 in person were that he'd see me in court so he's done a runner far sooner than I anticipated. I thought he was all mouth but as he made other threats I am being cautious. I will know instantly whether he's been back to the flat because I left it so I'd know if the door has been opened without it being obvious to the person who does so!

I'll see what happens when I go back.

Many thanks. I wanted a little reassurance I was doing everything correctly!



Sorry, no, a notice to quit is different from a section 21 notice. It is a requirement of any assured or assured shorthold tenancy that the tenant occupies the premises as their only or principal home. It is possible to have many homes, but only one of them, by definition, can be the principal home. If the tenant ceases to comply with this condition, but there is no surrender, the tenancy will become an ordinary contractual one.

Ordinary contractual tenancies can be ended by the service of a notice to quit. The notice must comply within any relevant term in the tenancy and with section 5 of the Protection from Eviction Act which requires that the notice be in writing and specifies a minimum period of four weeks notice, (or a period of the tenancy, whichever is the greater). It should also contain certain prescribed information. I think there might be a landlord's notice to quit on this site, but if not google that phrase and various examples will appear. The prescribed information is very simple, essentially advising the tenant for their rights and suggesting that legal advice be obtained.

So, whilst you suggested a notice on the door giving seven days notice, the notice to quit will usually give at least a month's notice (assuming the tenancy was monthly). Its a slightly more cautious approach if you don't already have enough evidence to accept a surrender.



Possibly, but it would depend on the precise facts. If the flat is empty but the keys are left in a place in such a manner as to suggest that they have been left for collection by the landlord, then this may well add to the case for an implied surrender. If, on the other hand, they were found amongst various belongings, then their significance may be less obvioius.

Does this help?

Preston

Bel
08-03-2009, 13:18 PM
Another (unlikely) explanation could be that your T has had all his furniture repossessed/stolen as the door was unlocked, and that he has gone to stay with his mum for a month. Or he is in hospital after a car accident......

So he could still be an AST tenant.

He could come back.

The only 100% way to be sure is to apply for a court order.