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View Full Version : What counts as T vacating premises?



Pobinr
30-01-2010, 07:47 AM
I have a tenant comes out end of fixed term on 4th Feb. She hasn't paid the last month's rent. I found out from a 3rd party she intends to end her tenancy. I emailed her for confirmation of this & what date she intends to end her tenancy & she replied she will be moving out & please accept her email as notice.
I emailed back asking for the date she intends to end her tenancy & have had no reply.

What if she continues to ignore me & doesn't return her keys & there is still some of her stuff left in the flat on 5th Feb ?
Can I accept her email of notice ?
Or do tenants need to give clear physical signs of vacation such as handing back the keys & removing possessions for there to be a legal end to a tenancy ?

If that were the case then she could leave low value items in the flat that she doesn't even want & not return the keys to me & the whole thing is then in limbo with me guessing whether or not her tenancy has legally ended & what to do next.

Is she still liable to pay rent until she returns the keys & removes her stuff ?

If so I could remind her she's legally liable for rent up until she returns the keys & removes her possessions, then that might be one way to prompt her into returning the keys & removing her stuff.

Paul_f
30-01-2010, 08:46 AM
Is it the fixed term of the tenancy that ends soon or is it a currently a periodic tenancy? The tenant can serve Notice by e-mail if that is acceptable to you.

If the keys are not returned then assume the tenancy has not ended.

It depends on her contractual obligations as to if and when rent is due.

Pobinr
30-01-2010, 09:03 AM
Is it the fixed term of the tenancy that ends soon or is it a currently a periodic tenancy?As I mentioned - "I have a tenant comes out end of fixed term on 4th Feb."

So if the keys aren't returned by the 4th Feb does her rent debt to me continue to mount up ?

People don't state in the AST what defines the end of the tenancy as far as I'm aware. So it's down to what the law says.

So what does the law determine in the case where she's emailed me notice & owes me the last month's rent but if on 4th Feb (which is the last day of the fixed term) hasn't given the keys back ?

Is she still a tenant in law or not & is she still liable for rent until such time as she returns the keys ?

justaboutsane
30-01-2010, 10:30 AM
If you do not receive the keys by midnight 4th Feb then she falls into a periodic tenancy and rent is due.

Lawcruncher
30-01-2010, 11:01 AM
Once again people are attaching too much importance to keys. It is quite possible:

(a) to hand over the keys and stay in occupation; or,

(b) to vacate and keep the keys.

Where any tenancy that may come into existence depends on whether the tenant is in occupation, the sole question is whether or not the tenant was in occupation at the relevant time and not the whereabouts of the keys.

Pobinr
30-01-2010, 17:13 PM
Once again people are attaching too much importance to keys. It is quite possible:

(a) to hand over the keys and stay in occupation; or,

(b) to vacate and keep the keys.

Where any tenancy that may come into existence depends on whether the tenant is in occupation, the sole question is whether or not the tenant was in occupation at the relevant time and not the whereabouts of the keys.In which case what is the definition of "vacate" & what is the definition of "occupation" ?

Lawcruncher
30-01-2010, 20:52 PM
I suppose occupation means to be in physical possession. Of course it does not have to involve continuous possession. You vacate when you give up possession with no intention of returning.

I am not saying that handing over keys is totally without significance, just that nothing should be inferred solely from keys being either handed over or retained.

Pobinr
31-01-2010, 07:23 AM
You vacate when you give up possession with no intention of returning.That's the problem. How does one know for sure with a tenant that doesn't have the courtesy to communicate whether they have no intention of returning.
I've sent them an email saying that they are liable for rent until such time as they've given me clear physical sign they have moved out by giving me back the keys & removing their possessions. That if the rent were not paid then I will pursue them for the rent via via legal process.
That is therefore some incentive for them to make it clear when they have vacated. Trouble is the way some people are means that won't necessarily work !

Lawcruncher
31-01-2010, 08:54 AM
It is of course difficult to know for sure, especially when a tenant is vacating furnished property. If belongings are left then the tenant has not given up vacant possession, but even there it can be a question of degree.

Where there is a periodic tenancy and the tenant has given notice, the position will perhaps be more clear cut. The tenancy ends on the day the notice expires and if there is no sign of the tenant it is reasonable to assume he has left.

Where it is a question of whether or not a statutory tenancy arises then it needs to be remembered that the law is that if the tenant vacates on or before the last day there is no new tenancy and if he does not there is. If the tenant does in fact vacate, a matter of fact even if not always easy to be sure, then it is not down to the landlord to impose his own conditions as to what he deems necessary for the tenant to have vacated.

Preston
31-01-2010, 11:01 AM
There are many cases dealing with the issue of residence (or occupation). Unfortunately, none of them give a simple definition of the term which can be applied in all circumstances. However, it is an issue which arises very frequently in my day job and in my experience the courts generally take a common sense view.

First, some comments by way of background which, although not directly relevant to the case in question, may help to put what I have to say later into some context.

In order to be an assured (or assured shorthold) tenant it is necessary to occupy the premises as an only or principal home. The distinction between only and principal in the 1988 Act (and the various case law arising from this) makes it clear that it is quite possible to have more than one home but, by definition, only one of them can be the principal home.

An assured tenant who ceases to occupy the premises as his or her principal home ceases to be assured and becomes an ordinary or “bare” contractual tenant. The bare contractual tenancy will continue until it is ended, normally by the passage of time (if it is a fixed term tenancy) by the service of notice or by surrender. Even though someone ceases to reside in a property, it does not mean that they have given up possession. Giving up possession would require a desire to end the tenancy and to hand possession back to the landlord (usually in one of the ways I have just described).

So, in summary, if someone no longer resides at a property they may still have possession of it. For this reason, it is best to analyse the situation in two stages. Firstly, do they live there now? Secondly, have they shown an intention to give up possession?

It is this distinction which means that very often the safest thing to do when a tenant appears to have left the property is to issue a notice to quit to determine the bare contractual tenancy and only then to enter into possession or, if there is still doubt as to the tenant’s intentions, apply for a court order.

Only when you are sure that the tenant not only has ceased to reside but also has shown a clear intention to give up possession is it safe to enter into possession without a court order. By doing so, you would normally be accepting the tenant’s offer of a surrender.

The evidence a court will look at is, as I mentioned earlier, fairly common sense. It would include:
a) What has the tenant said about their intentions?
b) Has the tenant removed their possessions?
c) Is the tenant still paying the rent?
d) Is there evidence that the tenant is living somewhere else (e.g. from neighbours).
e) Where does the tenant’s mail go to and which address has the tenant given to other people or organisations as a contact point?

Whilst I agree that the returning of keys is not necessarily conclusive, it would in my experience be given very considerable weight by the courts. In other words, if the tenant has handed back the keys there would be a very strong presumption in favour of an intention to give up possession.

On the other hand, if the property is empty but the tenant has not returned the keys and continues to pay the rent, there would be a strong presumption that there has been no intention to give up possession. It may be, however, that the tenant has ceased to occupy the premises as their principal home.

So, returning to this case, you have her statement that she intends to leave. If, after the fixed term has ended the physical evidence suggests that she has in fact done so, my guess is that you would be on pretty firm ground concluding that she has not only ceased to occupy the premises as her principal home but that she intends to give up possession.