Can I reclaim property after 4 months?

Can I reclaim property after 4 months?

14:11 PM, 4th May 2016, About 6 years ago 4

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My tenant moved out at least 4 months ago, according to neighbours but has paid rent up till March. April’s rent has not been paid and we have been unable to contact tenant by phone. We visited the property and peering through windows can see some bags, ornaments, papers left behind. There is a large pile of letters behind the front door visible through the letterbox. keys

Can we assume “implied surrender” of the property and go in and change the locks and re-let? I know we have to hold her possessions and give her chance to reclaim them.

Any advice as to how to proceed?



Neil Patterson View Profile

14:16 PM, 4th May 2016, About 6 years ago

Very helpful article from Tessa Shepperson of Landlord Law on this subject >>

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.

Sharon Betton

11:02 AM, 5th May 2016, About 6 years ago

No such thing as an abandonment notice? What do local authorities use to end a tenancy where the tenant has abandoned? A notice to quit, which is the formal abandonment notice.
The notice should only be used if the tenancy agreement allows for this, should abandonment be suspected and there must be a justifiable reason to believe the property has been abandoned. 1 month's rent arrears does not necessarily mean it has been abandoned.

Michael Barnes

14:28 PM, 5th May 2016, About 6 years ago

Reply to the comment left by "Neil Patterson" at "04/05/2016 - 14:16":

If the tenant chooses not to live in the property, then does that mean that it is not an assured shorthold tenancy, and different rules apply for obtaining possession?

David Price

10:20 AM, 7th May 2016, About 6 years ago

On a slightly more positive note the tenancy continues and the tenant remains responsible for the council tax and all the utilities. Small comfort if you are not getting any rent. Make sure that the council do not charge you for the council tax, remember that the tenant has to give one months written notice to end the tenancy (unless you have specified differently in the tenancy agreement).

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