Can I gain access yet? Implied surrender perhaps but the keys have not been returned

Can I gain access yet? Implied surrender perhaps but the keys have not been returned

10:43 AM, 9th November 2014, About 9 years ago 10

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I wanted my house back to sell. I served S21 at the correct time, ie 2 months before the end of the AST.

The end date was 27th October 2014. The Tenant got a council flat. Council called me for flexibility on end date, for that week (27th was a Monday). I agreed to this, as I was abroad on holiday that week.

I gave the tenant very clear instructions by text, that I agreed to flexibility as long as that they left the house clean and left the two front door keys at the estate agent.

Came back late Monday this week, and called estate agent on Tuesday. No keys returned. Called the council and was told that tenant got their new keys the previous week, and the new tenancy officially started on Monday this week.

I have texted asking for keys to be returned, but not had a response. I have also texted her mother, and again no response.

I believe that they have vacated my house. As I understand it, they are still my tenant until they return the keys. As it has been such a hassle (long story about them being v awkward about viewings etc), I intend to bill them, and if necessary take legal action to get rent for this month as they still have the keys. They have consistently been a month late with rent since January, though this was caught up with to allow them to get a council property.

If the house is empty if I look in the window, can I then legally declare the tenancy ended at that point and enter the property and change the lock? If I do this can I still charge the month’s rent? I feel that the house will be dirty as they were meant to pay a deposit, bit did not do so. Can I also sue to claim the deposit for that?

Or do I need to evict them even though they no longer live there? So very perplexing!

All help appreciated.


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Mark Alexander - Founder of Property118

10:57 AM, 9th November 2014, About 9 years ago

Hi Simon

You can't have your cake and eat it, i.e. you can't assume surrender but continue to charge rent. You can charge for having the locks changed though and rent to that point.

I'd suggest you write to the tenant at the property advising that you are giving them notice of a check out inspection in a few days time and to contact you if this is inconvenient. If they don't contact you then at least you're in the clear to go in.

The next step is a bit tricky, i.e. you have no concrete evidence they've surrendered their tenancy. If at all possible you need to gather this - e.g. an email from the council confirming they are in a new property, statements from neighbours etc. Chances of them claiming illegal eviction if you go ahead and change the locks and re-let are small but you need to cover your own backside. The only certain way of doing this is to seek a possession order but that's going to cost you time and money. Therefore, you need to make a commercial decision, plan for the worst and hope for the best.

All BankersAreBarstewards Smith

11:24 AM, 9th November 2014, About 9 years ago

I would write to them, asking them to confirm they have surrendered the property. If they don't reply in a day or two, then go in change the locks, get it cleaned, redecorated and get a new tenant. If there is no deposit, then you would have to take the tenant to court for outstanding rent/cleaning/damage money - if they are on benefits... don't bother .. write it off and move on.


15:27 PM, 9th November 2014, About 9 years ago

This is a nightmare for any landlord. I only yesterday got a call from a neighbour that my tenant next door had left her boyfriend, he handed in her keys to the neighbour (who is my relative). I cannot get hold of the tenant so it is not surrender until I have written statements from friends, relatives etc. The other tenant asked me to change the locks as he doesn't want the boyfriend back there and he was messing with the electrics. I fixed the electrics, (water from toilet), fixed the toilet, changed the locks with the authorisation of current tenant, and left a note on the door for old/other tenant to collect her key from neighbour, and to phone me within 7 days or it will be implied surrender (using Mark's form).


15:29 PM, 9th November 2014, About 9 years ago

But the truth is that I will not give this home to anyone else UNTIL I have heard from the tenant.

Graham Durkin

16:14 PM, 10th November 2014, About 9 years ago

These people have moved into a Council Flat then surely they have signed a new Tenancy Agreement with their New Landlord. So just print off a DEED OF SURRENDER OF TENANCY , fill it out take it round to your ex tenant get them to sign it in front of a witness Tthis thereby releases both parties from the tenancy agreement .The landlord must agree to surrender the DEPOSIT back to the tenant and make no further charge against them .

This allows both parties to move forward I have used this recently and it worked well for both parties.,I,m sure your ex-tenant do not want you persueing them for further rent relating to the first property .I think it was just bad timing that you were on holiday at the time of vacating.

Jonathan Clarke

23:29 PM, 10th November 2014, About 9 years ago

I would as Mark says put a note through the door saying you are doing an inspection. When they dont respond go in with a witness and check it out for signs of living or abandonment. Post on the mat. milk gone off in the fridge etc. Video it all and do a running commentary into a dictaphone to cover yourself.

Then if you are reasonably satisfied they have left change the locks and leave an abandonment notice affixed securely to the front door saying what you have done and for them to contact you to discuss etc

Give them a week max using that time to clean it up and cover your back by collating evidence . Then move a new tenant in. You know they have a new council place so you are 90% of the way there.

Possession is 9/10ths of the law

Romain Garcin

9:15 AM, 11th November 2014, About 9 years ago

The keys are not crucial, and you cannot charge rent (ie. treat the tenancy as continuing) just because they haven't given them back.

You want them to remove all of their belongings from the property then to confirm to you in writing that they wish to surrender the tenancy.
Then if they don't give the keys back you charge for them and changing the locks, though you should change the locks in any case.

Dr Rosalind Beck

9:24 AM, 11th November 2014, About 9 years ago

If you have it in writing that they intended to leave on 27th October, I would add in any letter that unless they confirm they have ended the tenancy they are liable to pay double rent from 27th October until they officially surrender the tenancy.
In practice, however, we often get tenants leave and not return the keys - or maybe leave one at the house and keep another. If we can see the house is empty of their things and we have other evidence they've left - e.g. notification that they have moved into a new place, we go ahead and change the locks and re-let.

Romain Garcin

9:29 AM, 11th November 2014, About 9 years ago

Reply to the comment left by "Rosalind " at "11/11/2014 - 09:24":

Double rent is only is a tenant overstays after the expiry of his notice to quit.
Here it is a case apparently of surrendering the tenancy: As long as the surrender hasn't occurred (which requires offer and acceptance) the tenancy continues and thus rent accrues as usual.

Jan Martin

14:23 PM, 13th November 2014, About 9 years ago

Reply to the comment left by "Jonathan Clarke" at "10/11/2014 - 23:29":

Sometimes I have found that when I have entered a property with a witness which is known to have been vacated and you need to make sure is left safe , I have found keys inside the property .

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