Frustrated by different advice given for taking possession?

by Readers Question

16:14 PM, 29th January 2019
About 3 weeks ago

Frustrated by different advice given for taking possession?

Make Text Bigger
Frustrated by different advice given for taking possession?

In brief, a section 21 notice was given to the tenant which expired without her leaving. A possession order was granted from the court and this expired 25/1/19.

I went to the property and she’d left all apart from odd bits and rubbish. I hadn’t heard from the tenant and she hadn’t handed her keys back.

I rang the NLA all processes covered, locks changed (it was actually broken anyway). Tenant messaged me yesterday asking for access, telling me she hasn’t moved out (even through I’ve got witnesses and proof that there was no “liveable” proof she was there) that I’m unlawfully evicting her and should have had a bailiff.

I’ve called the NLA again and a different opinion now given and that she could get back in if she wanted and I do need a bailiff. I’ve called NLA 3 times to confirm the process I’ve taken is correct … so frustrating, and I still don’t know what’s right!

Can someone please help me!

Julie



Comments

Neil Patterson

16:18 PM, 29th January 2019
About 3 weeks ago

First of all I would take professional legal advice straight away from Paul Shamplina's team at Landlord Action. Please see his contact form on his membership profile page >> https://www.property118.com/member/?id=190

Neil Patterson

16:19 PM, 29th January 2019
About 3 weeks ago

Please also see Tessa Shepperson's article "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/

Binks

17:52 PM, 29th January 2019
About 3 weeks ago

I’d second Neil’s advice, contact Landlord Action so they can advise how to proceed from here. It very much seems to me like you have fallen victim to a very clued-up and devious tenant who set a trap you’ve fallen into.

As I’m afraid technically the tenant is right. I’ve had a very similar situation in December with Section 8, where Court possession date passed, no return of keys, but flat looked nearly empty (and neighbours witnessed moving out activity). However, as I didn’t get any confirmation from the tenant of vacating or keys returned, I was advised (by LA) that assuming the tenant vacated and changing locks was very risky. I hence opted for bailiffs (we had High Court bailiffs approved by the Court), and forked our another £1,200 for the privilege. And I was glad I did as on the bailiff visit day, the Tenants were still present! The system is atrociously unfair, at the time of the bailiff enforcement we were already down nearly 6 months of unpaid rent plus legal expenses so being forced to bailiffs just added insult to injury.

I wish you good luck, hope LA can sort it for you!

Luke P

7:44 AM, 30th January 2019
About 3 weeks ago

When you’re this far down the line, always always go to Bailiff/HCEO. You get a certificate to prove to council tax when your liability began too (instead of whatever the tenant has told them) and you know you’re not falling foul of the law.

Annie Landlord

11:49 AM, 30th January 2019
About 3 weeks ago

Sadly you may have been set up by a professional rogue tenant, so I would echo the advice of others to get yourself some legal advice from Landlord Action or similar. You will also need to put in a complaint to the NLA if you feel you were very clear in your questions, but received conflicting advice from the helpline

Rob Crawford

12:55 PM, 30th January 2019
About 3 weeks ago

Landlords need to be wary that the NLA advice line is not operated by legally qualified professionals and poor advice can be given. Good for getting an opinion, but I would always consult with a "PRS wise" solicitor to facilitate key decision making.

Simon Williams

18:12 PM, 30th January 2019
About 3 weeks ago

Totally agree about the need for professional advice. That said, I am not so sure Julie is in the wrong here. The key thing, as I see it, is that she has obtained an order for possession from the court which has expired which mandates the tenant by law to leave. This is not a case of trying to take back possession only after a section 21 Notice.
Julie was reasonably entitled to conclude, if the property was (provably) empty and the order had already expired, the the tenant had surrendered in accordance with the court's order and that a surrender once made cannot be revoked on a whim.
She has not obtained a bailiff's warrant, because she did not appear to need to do so.
I think the route to take depends upon risk appetite. Ultimately the question is how likely the local authority is to prosecute Julie under section 1 of the Protection from Eviction Act 1977. This Act clearly provides that it shall be a defence that the landlord acted reasonably. If Julie can show that she acted reasonably, she is unlikely to face conviction and therefore prosecution. So she could tell her ex-tenant that Julie believes she has lawfully taken back her property under a court order and inform her ex-tenant that if the ex-tenant thinks the law has in fact been broken, they should contact the local authority who can happily contact Julie if they want to.
In short, call the ex-tenant's bluff. If the LA contact Julie and make a very strong case that she is going to be in breach of the 1977 unless she relinquishes possession, she should act on that. Otherwise, she could conceivably stand her ground.
The alternative route, of course, is to relinquish possession without a fight and ask for a bailiff warrant, but whether that is better advised depends in part on how much longer she will be without her property and also just how strong and well documented her evidence is on the issue of surrender. Also important is whether the tenant can put to Julie a credible argument that the tenant actually had no intention of surrendering despite apparently clearing everything out.
This is not legal advice. Just honest opinion.

Michael Barnes

19:32 PM, 30th January 2019
About 3 weeks ago

Reply to the comment left by Simon Williams at 30/01/2019 - 18:12
The problem is that the T did not return the keys, so implied surrender is difficult to show.

Simon Williams

11:42 AM, 31st January 2019
About 2 weeks ago

In reply to Michael, there is no one act or omission which, by itself, is decisive. The case law takes a more general approach, for example in Sable v. QFS Scaffolding Ltd [2010], the court said:-
“The circumstances (of the surrender) must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended”.
And in Chamberlain v. Scalley (1991):-
“There must be unequivocal conduct on the part of both the landlord and the tenant which is inconsistent with the continuance of the tenancy”.
Handing in keys is obviously excellent evidence of surrender, but for all sorts of reasons, e.g. laziness, bloody-mindedness, forgetfulness, a tenant giving up a tenancy may not hand back the keys and so it is left to a consideration of all the other circumstances. Here, no rent is being paid; a court order for possession has been served which has expired; and the tenant has moved out all their stuff. Arguably, that is "unequivocal conduct inconsistent with the continuation of the tenancy."

Mandy Thomson

11:43 AM, 3rd February 2019
About 2 weeks ago

Absolutely excellent advice from Simon Williams! Unfortunately, there is no one ABSOLUTE formula to deal with an abandonment situation and there is always an element of risk involved.

In Julie's case, two conditions that would normally be enough to demonstrate a surrender by operation of law are met - rent has stopped and most of the possessions have been removed. However, you must ALWAYS give the tenant every chance to refute this and take back possession within a reasonable time (no hard and fast legal definition of "reasonable time").

Clearly, once the tenant has stated they still want to continue with the tenancy, you would be wise to give way and all you can do in this case is to instruct bailiffs.

I work for one of the national landlord associations on their advice line. As an advisor, you're under pressure to give the best answer you can as quickly as you can but you can only answer according to the information you're given at the time.

Several times I've given one piece of advice based on the information I've been told, only for the caller to reveal something else that completely changes the whole scenario!

1 2

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Nottingham off-plan development for early-bird investors

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More