When can I enter my property?

by Readers Question

7:44 AM, 24th December 2018
About 3 months ago

When can I enter my property?

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When can I enter my property?

I have served notice to quit to my tenants. They have not paid rent for 3 months. They have until 1st Jan to leave and are accepting no correspondence from myself. I was advised from a neighbour that a white van left the driveway 3 days ago and their cars have not been seen since.

They have closed the blinds and left my living room light on 24hrs a day. I called the police to ask if I can go to the property as its causing a potential fire hazard with the lights on and they told me to call citizens advice, but everywhere is shut due to weekend/christmas. The house is fully furnished and I am fearful they have removed all my belongings.

Can anyone advise me what I can do?

Dundee, Scotland

Thanks in advance

Gillian



Comments

Neil Patterson

7:48 AM, 24th December 2018
About 3 months ago

Please see Tessa Shepperson's article of Landlord Law:

I think my tenant has left, can I change the locks?

>> https://www.property118.com/i-think-my-tenant-has-left-can-i-change-the-locks/

"I think my tenant has left, can I change the locks?

You need to be very, VERY careful about this. Once a property has been let to a tenant it is effectively his. He is entitled to live in it without interference from the landlord.

This is set out in a clause (rather quaintly called the ‘covenant of quiet enjoyment’) which is implied into all tenancy agreements, whether it is set out in the written terms and conditions or not. Mostly it is.

So the landlord has no right at all to go barging in, whether he thinks the tenant is there or not. After all a tenant does not HAVE to live in the property if he does not want to. Also, he could be on holiday, in hospital or in jail. None of which entitle the landlord to go in and repossess.

So the fact that the neighbours have not seen your tenant there for a while does not mean that you are legally entitled to just go in and change the locks. For example, if the tenant was merely on a long holiday and he came back to find that you had changed the locks he would be entitled to an injunction to get let back in again and financial compensation from you, particularly if you had re-let the property to someone else. Plus you would almost certainly be ordered to pay his legal costs as well. It could turn out to be a very expensive mistake.

If I also tell you that there are believed to be some tenants who deliberately pretend to have vacated, so that they can entice their landlords into repossessing to potentially sue them for damages, you will appreciate that there is a great need for caution in this situation.

However there are times when you can go in and change the locks. How can you tell when this is?

The doctrine of implied surrender

The legal justification for repossessing a property in the absence of the tenant is that you are accepting what we lawyers call an ‘implied surrender’. This is when the conduct of the tenant is inconsistent with an intention to continue with the tenancy. You can then accept this implied surrender offer by re-entering the property and changing the locks, and this then ends the tenancy.

The best and clearest example if this is if the tenant stops paying rent, moves out all his possessions, and leaves the keys behind. Giving up the keys is considered to be a symbol of giving up possession. So if you have a situation where they have been left behind you are generally safe to repossess – so long as the tenant has actually moved out, and has not just left them behind by mistake while popping out to the shops!

However, if the keys have not been left behind, particularly if some of the tenant’s possessions are still there, you should back out of the property (assuming you have entered with your keys and an independent witness, to check the situation) and obtain a court order for possession.

Obtaining a court order for possession is the ONLY 100% safe way to repossess a property with no risk of any claim for compensation for unlawful eviction. Anything else is a risk. You may consider that it is a risk worth taking, particularly if the tenant is in serious arrears of rent. However it IS a risk and any solicitor you consult will advise you to go to court.

What if you have no keys or way of checking? For example if the flat is on the sixth floor and you cannot peer through the windows? Then your only option is the court order for possession.

The abandonment notice myth

“But” you are probably saying, “Why don’t you just put an abandonment notice up on the door?” “Because” my answer would be “they are nonsense”.

When I first started working in property law, I had never heard of an abandonment notice. They are in none of the legal text books. They are a myth perpetrated by landlords and agents who don’t want to go to court. But they do not, and cannot have any legal efficacy.

Here’s why:

If the tenant has given up and gone, if there is a genuine situation of implied surrender, you do not need to put any notice on the door. You can just go in and change the locks, now, entirely legally.
If, on the other hand, it is not an implied surrender situation, if the tenant is say, merely staying longer than expected with her Great Aunt Mary (perhaps GA Mary has fallen sick, and she is staying to nurse her), then you have no right to go in and change the locks. Any attempt by you to do so will certainly be unlawful eviction which is both a criminal offence and (as we have seen above) a civil wrong entitling the tenant to bring a claim for compensation.

The problem is working out which of these situations apply. Things are not always clear cut.

If you want to read more about this, take a look at two blog posts on my Landlord Law blog, one on implied surrender and the other on abandonment notices.

There is also a ‘horror story’ on my main Landlord Law site which you can read here.

But the main message is, never change the locks on a property unless you are COMPLETELY sure that the tenant has vacated, and left his keys behind. Otherwise it could cost you dear."

JO CHAPMAN

8:54 AM, 24th December 2018
About 3 months ago

I was recently in the same position as you find yourself. I agree with the comment above, you have to be very careful. My tenant was seen by neighbours removing furniture and moved out but did not return the keys to me. I still applied to the court for a possession order. I was able to give evidence that the neighbours had seen her removing her furniture and had not seen her at the house since. I was awarded possession on the date of the court hearing rather than having to wait a further 2 weeks. This added a further 7 weeks to the eviction process and I had to pay court fees but I had legally covered my back. Unfortunately the tenant holds all the cards in this situation and you can find yourself in a lot of trouble if you illegally take back possession. Good luck.

Rod

10:22 AM, 24th December 2018
About 3 months ago

As I understand it, in English law 24 hours notice must be given to enter your property but Scottish law may be different! A notice through the door should be enough otherwise you could wait 'forever'! Tenants always leave things behind so you need to judge the value of it as a guide to if they've left or not. You need to check your laws on this as they change each time you turn your back!

Luke P

10:43 AM, 24th December 2018
About 3 months ago

Reply to the comment left by Rod at 24/12/2018 - 10:22
Be aware,though, that 24hrs is not a right and permission can be (permanently) revoked by the tenant.

Sam Addison

10:46 AM, 24th December 2018
About 3 months ago

while you obviously should not change the locks I would be inclined, with a witness, to knock loudly and if no answer to enter to check there is no-one lying injured and in need of help. After all, the light has been left on for 3 days. This will enable you to check if furniture has been taken.

Rob Crawford

12:36 PM, 24th December 2018
About 3 months ago

Always start possession proceedings at the first late payment and before the next rent is due. You can always withdraw the notice it if a payment is made later. Maybe they have gone on holiday and left the light on for security reasons! Why on earth would it be a fire hazard, is the wiring unsafe? I think you are looking for excuses to enter! What do you mean, "they are not receiving my correspondence"? Post it through the letter box iaw with the AST serving of notices section, job done! Assuming you have served a valid section 21, I would put some sticky tape across the gap at the top of the door. This will give you an indication as to whether the door has been accessed or not. Just before expiry of the notice period (you say 1st Jan so not long to wait), I would give them 24 hours written notice of your requirement to conduct an interim check. Assuming you do not get a reply, on expiry of the notice period go to the house and knock on the door. If no answer, access the property. You should then be able to tell if the property has been vacated. Hopefully, the keys will be on the door mat with all your mail. Hopefully, all their possessions have been removed. Now change the locks! If they still have possessions in the house, you cannot assume they have left and you should leave. You now have to go through the courts to obtain a possession order and permission for bailiffs to access the property. Hopefully the lounge has a low energy light filament! It could be worse, some leave the bath water running! Good luck.

Peter G

14:06 PM, 24th December 2018
About 3 months ago

it is a shame that the Guardian chooses not to mention stories about poor tenant behaviour in their headlines, and instead just focus on rogue landlords (who deserve criticism if they failed their tenants badly, not just minor oversights)

Rod

16:14 PM, 24th December 2018
About 3 months ago

Leaving possessions behind is a grey area! Never, have I had a property back without something left behind 'so' is it worth going to court should an orange box be left???

Mkahn

19:53 PM, 24th December 2018
About 3 months ago

My property is company let. Two years contractual period finished a year ago. The company Director has stopped playing rent for last six months. Despite of many reminders doesn’t pay rent . He is subletting the property and getting regularly from real tenants . He doesn’t live there. Section 21 notice served but every time he is using delay tactics. Now asking court order to get maximum rent from tenants. He is appreantly violating the contract by putting more people . What is best we can do to get the possession and rent amount. Please respond ASAP

Mark Alexander

20:06 PM, 24th December 2018
About 3 months ago

Unless he is letting to employees you either used the wrong type of agreement or else he is illegally subletting. Either way, you are going to need good legal advice and your insurance is probably invalidated and your probably in breach of BTL mortgage terms if you have one of those too.

I recommend you visit our Legal section of this website and complete the Landlord Action contact form

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