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PuzzledL
16-03-2010, 10:49 AM
Hello all, hope you can help
The tenancy is an assured shorthold tenancy for 6 months. Rent is paid in advance monthly. The tenant has paid the first 5 monthly rents (albeit usually a few days late). The tenant now appears to have gone missing. His possessions still remain in the property. There is strong suggestion he has been sent to prison. His work have said he has vanished too. However, he has now not paid the 6th monthly rent payment.

My queries:

1 Will a statutory periodic tenancy arise when the 6 months ends – given he has not paid the 6th instalment of the monthly rent and he will almost certainly not pay the rent of the first period of any periodic tenancy? He will also not have physically occupied the flat for over a month.

2Can I take back possession on the elapsement of the 6 months tenancy term? Is it reasonable to think that the tenant’s actions will constitute abandonment under s 27 (8) HA 1988 should an unlawful eviction defence have to be made? He will have not been in the property for aprox 38 days nor responded to any contact and the 6 months tenancy term would have come to a natural end – the point where he would not need to have given any notice to leave.

3 Finally, his possessions. How can I dispose of them without the risk of being sued by him regarding them? There is a clause in the tenancy agreement which says any possessions left at the end of the tenancy can be disposed of after giving the tenant 14 days’ notice, but the proceeds are to be treated in the same manner as the deposit. However, there will be no address to send the notice to the tenant anymore. And I’m not sure if this clause is valid.

4 If I have to go down a s8 HA 1988 route how likely is it for the judge to use his discretion to grant me possession based on what might be only 1 month’s unpaid rent, albeit allied to the tenant’s disappearance? Had I better wait for 2 months rent to be due so that I can use the mandatory ground – given this is longer and I still have to make the monthly mortgage repayments?

Thanks for any help in advance. I’d really appreciate it.

jeffrey
16-03-2010, 11:59 AM
If T is no longer using the premises as an only or main home, the 1988 Act cannot apply- so nor can the statutory continuation rules in it.

PuzzledL
16-03-2010, 13:01 PM
If T is no longer using the premises as an only or main home, the 1988 Act cannot apply- so nor can the statutory continuation rules in it.

Thanks Jeffrey

Very much appreciate the help.

If he has been sent to prison, though, will it not still be interpreted that he is actually using the property as his main or principle home? Will all his possessions still being in the property contitute possession or occupation of the property?

But even if it is still an Assured Shorthold Tenancy will his lack of actually physically being in the property ever, combined with his failure to pay rent constitute an action by the T sufficent to prevent a statutory periodic tenancy beginning, even though he has left all his possessions there? I.E. he has abandoned the property.

jeffrey
16-03-2010, 13:06 PM
If the letting remains an AST, the non-presence of T and non-payment by T would have no impact on its AST status (at least until L takes action).

davidjohnbutton
16-03-2010, 13:25 PM
Have you thought that the tenant might be in hospital????
Might have had a serious accident or even be dead!!

Its very unusual in my experience for a tenant to leave ALL their possessions in the house and just leave them there and move elsewhere. Usually, but not conclusively or exclusively, the lack of bedding, toiletries, clothing, TV, microwave and kettle in the house would lead me to believe that a tenant had left and abandoned the rest of the stuff, but if these things are still present - it points to him coming back.

The only SAFE way is to repossess through the courts. However, coupled with what you know, if you can ascertain from a neighbour relative or friend of the tenant that he has indeed left permanently, then you might be safe from a criminal prosecution for unlawful eviction if you on this occasion dont follow the possession process and it MIGHT protect you from a civil claim by the tenant. Its a judgment call for you alone to make.

In the meantime, do your best to locate the tenant, police, hospitals, prisoner location service, HB/LHA dept at council, DWP office etc, bearing in mind that these are all bound by the Data Protection Act so information that can be given to you is very restricted.

Have a look in local newspapers - see if his name crops up re prison sentence!!!

PuzzledL
16-03-2010, 20:26 PM
I have an update,
Thanks for your responses.

I did contact the police previously to report him missing. They were quite esoteric in their response, but implied he was safe and well.

I have now contacted a fried of the T's who has confirmed the T is in prison, but he did not say what for or for how long. He has given me a telephone number and address of the prison.

I'm not sure how being in prison would be treated re: the property still being his only or principle residence and therefore an AST which will convert into a statutory periodic tenancy, nor as to whether it will constitute abandonment.

I am therefore minded to ask the T to give me in writing his surrender of the property at the end of the initial 6 months as well as the overdue rent.
I will then serve him a s21 notice giving him 2 months is he says no (or doesn't respond). I will also serve a s8 notice re the overdue rent.

homelessstill
20-03-2010, 16:07 PM
http://www.dailymail.co.uk/news/article-1053273/Landlady-ordered-pay-damages-serial-rapist-clearing-flat-arrest.html

tom999
20-03-2010, 17:06 PM
Although this landlady (http://news.bbc.co.uk/2/hi/uk_news/england/kent/7605218.stm) eventually won her appeal (http://news.bbc.co.uk/1/hi/england/sussex/7933228.stm) for unlawfully terminating an imprisoned tenant's contract; in such cases, it's better for the landlord to take the cautious approach and take the correct legal procedure for removing the tenant.