Evicted tenant has left belongings and not contactable

by Readers Question

7:27 AM, 24th December 2013
About 7 years ago

Evicted tenant has left belongings and not contactable

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Evicted tenant has left belongings and not contactable

Hi,

As there are soo many helpful people on this forum thought I would ask a question that readers may be able to help with please. Here is a brief summary

1. Tenant signed tenancy agreement and paid the required deposits and months rent
2. Tenant moved all items in, TV, washing machine, cupboard, table, etc
3. Tenant stopped paying rent after first month and was not even living in the property
4. We used rent guarantee insurance who have paid some of the rent and evicted tenant
5. All her belongings are still there, she is not contactable and has no forwarding address
6. She contacted letting agent to say she was going to pickup item on a certain day but left no address or contact details
and never turned up. Costing us time and money.
7. Solicitors dealing with case said we have store her items for 3 months under (Torts (Interference with Goods) Act 1977 which, as the tenant owes you money, states that the goods must be retained for at least three months before they can be disposed of.) and give her notice of such.
8. Issue is that she has no contact address, tel number, reference, employer, etc… We have to send her notice to say items are in storage, will cost this much for doing so and ensure she has three months to collect before we dispose off the items).

Letting agent has been of no help either. Is there any advise you can offer here please.

Many Thanks

JitenStorage

Comments

Industry Observer

14:16 PM, 1st January 2014
About 7 years ago

@Gary - bit cynical isn't it this ABC stuff? I've been in the industry 20+ years and never heard it. In my experience it could be used by tenants in respect of self managing agents!!

@Jiten

Preoceed with great caution. The Prescribed Information served on the tenants to comply with TDP should have a post tenancy contact address in it. My money is 100% that it doesn't, in which case you have committed an offence. So if you chase the tenants too hard you could end up on a loser courtesy of a s213 claim against you.

Gary Nock

14:36 PM, 1st January 2014
About 7 years ago

Well perhaps it is as reading it again it seems like I have applied it to all letting agents rather than these particular ones in these particular circumstances. So if I have caused offence then I apologise. The ABC rule is one learned from 30 years in a world where ones experience of human nature does imbue one with a certain degree of cynicism as to what organisations and people will tell you to get rid of you or get them off their back.

The deposit protection paperwork may assist but in both the schemes I use Mydeposits and the DPS then the tenants forwarding address is not an absolute requirement as invariably when the deposit is protected they do not know where they will live after they vacate your property. If this was the case then many tenancies would fall foul. The legislation states:

(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;

And picking up on a point from industry Observer then if the letting agent will not provide you with the deposit protection paperwork ask yourself the question why. Was it protected? If not then you could be held liable for 3 x the deposit. So you need to check this for a number of reasons.

Industry Observer

15:34 PM, 1st January 2014
About 7 years ago

Gary

I refer you to Suurpere v Nice July 2011 and especially Atyannuga v Swindells November 2011 the latter being a Mydeposits case where the agent tried to tell the CoA that they would decide what mattered in the PI. The CoA wiped the floor with them.

You quote the Statute correctly, but your statement

"the tenants forwarding address is not an absolute requirement as invariably when the deposit is protected they do not know where they will live after they vacate your property" is sadly way off beam, totally wrong and the same mis-interpretation that many agents put on it.

It is NOT a forwarding address, as you say who knows where they will be living in a year or two. It is a contact address for the Scheme to use if necessary and the Statute requires it to be completed in the PI form isssued to the tenant and relevant person if any.

Omit it at your peril Gary - that's what the agent did in the Ayannuga case and it cost them very dear.

Gilly

9:16 AM, 2nd January 2014
About 7 years ago

@Industry Observer

Sorry if I am being picky here, but the Ayannuga case was more about not issuing the Prescribed Information than omitting a forwarding address was it not? The lesson to be learned from this case for landlords is to have proof that the Prescribed Information was issued within 30 days, along with the Certificate, as it is deemed to be just as important as registering the deposit.

I am just about to re-issue it for two of my lovely tenants, who are about to continue their tenancy under a SPT i.e. their fixed agreement of one year is up and it will now roll over on a month-by-month basis (with no renewal fee payable nor change of agreement - I have no intention of serving notice). I still have to re-produce the Prescribed Information however, even though it is exactly the same as they still have in the file (now very large) that I provide at the beginning of their tenancy. I am sure a second copy will be very useful though and they will really appreciate it, even if they are a bit bemused.

Regarding this post, I put up a notice on the door and photographed it, when this happened to me, even though I knew that the tenant was far away in another country.

Industry Observer

11:10 AM, 2nd January 2014
About 7 years ago

@ Gilly

Not picky, just wrong!!

In Ayannuga the agent had issued PI but it was woefully inadequate. The form itself is not prescribed, though it makes sense to list the indormation in the sequence listed in the Statute.

What happened in Ayannuga was that the PI was defective in several respects, not just the lack of a post tenancy contact address, but all sorts of other prescribed information i.e. demanded by Statute to be stated, was omitted or incomplete.

The agent valiantly tried to defend on the basis that it really didn't matter, and that the tenant knew their own name etc etc, but the CoA wiped the floor with them and coming after Suurpere basically stated that the PI was as important, if not more important, than the actual protection of the money!!

This on the basis that at least the money was safe, but that the tenant without the full PI might not know where it was, who to contact in the event of a dispute arising etc.

No-one argued in Ayannuga Gilly that the PI had been issued, just that what had been issued did not comply with the Landlord's obligations. Same with Suurpere - PI was issued, and nothing wrong with the form itself in that case. Just that the DPS Scheme Rules (T&Cs) were not attached to it, as also required by Statute (or leaflet for the other two schemes).

Your approach on a tenancy going periodic is commendable and right. By the way don't just re-issue the original, check that details which may have changed are correct at date of re-serving. For example is the post contact address the same etc. Re-issue I agree is a pain, but it is a golden opportunity to try and correct any earlier omissions or errors. The original offence will still have been committed, but correcting it even if after the original event, is better than nothing.

That is how all wise agents and Landlords should look on re-issuing of PI.

Gilly

17:03 PM, 2nd January 2014
About 7 years ago

Reply to the comment left by "Industry Observer " at "02/01/2014 - 11:10":

OOoh I can't let that go....I am not wrong as I have stated the same as you, that the information was incorrectly issued (late and inadequate as you so rightly point out) and that it was deemed as important as the protection of the deposit. You seemed to imply in your first comment that it was simply because there was no forwarding address and that is not the case. NOW I am being picky (because I hate being told I am wrong - don't we all?).

Thanks for your comments about re-issuing the PI - it goes without saying in my case that that is exactly what I would have done - I will obviously use the opportunity to check that the details haven't changed since the first issue.

I do appreciate your comments Industry Observer, in this and other websites - you always sound very knowledgable, although I can see why people sometimes react defensively to your comments. Is this because you are a legal person or just a bit obsessed like me 😀

Industry Observer

18:00 PM, 2nd January 2014
About 7 years ago

Gilly

It is because I am a legal person (unofficially) and very keen on accuracy.

So final point in Ayannuga there was no late service - the entire offence was saome incomplete entries in thePI and omissions of others entirely.

I never implied that it was just the omitted contact address (do stop referring to it as a forwarding address everyone does and that is incorrect!!).

Happy New Year

Gilly

19:13 PM, 2nd January 2014
About 7 years ago

Reply to the comment left by "Industry Observer " at "02/01/2014 - 18:00":

As this is going off the subject a bit, albeit an interesting case which illustrates how fiddly and unwieldly this deposit legislation has become, I apologise for my wording - you are absolutely right even if people do understand the phrase "forwarding" address rather than "contact" address.

Having merely read a transcription of the case, my understanding was that the landlord represented himself and won the case, until it went to appeal. Part of the Prescribed Information was issued after the 30 days but during the proceedings, which was deemed acceptable, however the Information was still inadequate, but maybe this was not so.

Out of interest, are you saying that to issue the Prescribed Information, plus certificate, provided by mydeposits or whoever, may not be sufficient and may need adapting?

Industry Observer

20:29 PM, 2nd January 2014
About 7 years ago

Gilly

You are quite right in much of the additional detail you provide, but the whole nub of the case was the inadequacy of the Prescribed Information which was served by the agent on Landlord behalf.

I have long advocated that the deposit schemes should stick solely to what they were created for, which is to protect deposits by holding the money or insuring it, then adjudicating on disputes if they arise, and whether or not they do, dishing out the deposit end of tenancy.

That is all the schemes came into existence to do, not pontificate on all manner of issues in lettings. Just to hold money, or insure it, and pronounce on disputes if they are referred to them.

The schemes all provide a template for Prescribed Information, though they all take no responsibility if you use it and then it is found wanting. That is fair enough.

But where life gets confusing is in areas such as this certificate issued by Mydeposits which many agents and an awful lot of self managing Landlords think is all that needs to be served. Others believe that the schemes serve the PI for them.

All you need for a perfect PI form is to follow the sequence in the Statute, adding suitable statements and signature boxes at the end since as you rightly say proof of service is very important.

Gary Nock

11:59 AM, 8th January 2014
About 7 years ago

In accordance with the advice of Industry Observer I am about to re-serve a DPS Prescribed Information and asked the tenant what should be an address where the scheme can contact the tenant at the end of the tenancy.

Guess what they said.

"I don't know one as we don't know when we will move out and where we will go"

So I looked at the form again to see of there is any alternative and see that it states:

"(3) It is the tenant's or lead tenant's (where relevant) responsibility to register their contact address with The DPS and to ensure that address is updated at the end of the tenancy"

So if the tenant cannot provide an address what do I put on? The existing address?

And looking at the Ayannuga v Swindells case the Court of Appeal ruled on these specific points:

1. setting out the procedures that apply under the Scheme by which an amount in respect of a deposit may be paid or repaid to a tenant at the end of the shorthold tenancy;

2. detailing the procedures that apply under the Scheme where either the landlord or the tenant is not contactable at the end of the tenancy;

3. explaining the procedures that apply under the Scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;
describing the facilities available under the Scheme for enabling a dispute to be resolved without recourse to litigation.

No mention of contact addresses.

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