Frustrated by different advice given for taking possession?

Frustrated by different advice given for taking possession?

16:14 PM, 29th January 2019, About 3 years ago 11

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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

by Kate Mellor

21:30 PM, 11th February 2019, About 2 years ago

Some excellent advice here. The difficulty with the law is it is rare that something is so cut and dried to be beyond an opposing argument. That’s why people go to court to argue their interpretation of the law every day.

In this instance you have a DEEMED surrender which by definition is an assumption based on the pieces of evidence available to you. You had the very good evidence of an empty property to suggest that the tenancy had been surrendered. However you have only interpreted the tenants intentions in the absence of the tenant telling you his intentions. Sadly the tenant reappearing and telling you unequivocally what his intentions were makes it difficult to argue an offer of surrender.

The only angle I can think of may be if you have evidence that the tenant now has another primary residence. That they have notified utilities and council of a change of address (date of address change already having passed), along with photographic evidence that the property was empty and there is nothing in the property to allow a tenant to live there. No fridge, no food, no bed or bedding, no toiletries etc. It’s my understanding that an AST can only exist where the property is a principal primary residence. Realistically though, unless you fancy chancing your hand at a bluff as Simon suggested, you’re not going to throw good money after bad fighting the principle in court are you? Just change the locks back to the old barrell if you can & book a bailiff.

When these circumstances occur, as they frequently do in this business, your options are to spend the extra money and remove all risk and proceed with the bailiffs, or to make a judgment call as to whether there is enough evidence to reasonably interpret a surrender by the tenant. BUT you could be wrong and you may have to let the tenant back into the property and instruct bailiffs after all.

If you were wise and took photos when you entered you have nothing to fear from this as you acted in the honest belief the tenant had left on good evidence and there will be a record of your call I imagine should you need it that you took advice first.

I’ve been in your place a number of times and have done the same as you, after first taking a few extra measures. I always take extensive photos, and visit a number of times to record any changes. I put tape over locks and at the top of the door which will need to be removed for the tenant to enter, has the tape been disturbed and therefore someone has entered the property since your last visit? Is post being picked up? Is there any food, bedding, toothbrush in evidence? I photograph everything I do & the evidence at each visit which backs up your decision and the reasonableness of your conclusion of implied surrender & finally I make every effort to contact the tenant & their next of kin first by text, phone call (voicemail as they never answer) & email to inform them that I’ve observed the property to be empty and it appears that they have permanently left the property and I intend to change the locks in 7 days if they don’t contact me to inform me that they haven’t yet left the property. (I tell next of kin I’m making sure they aren’t on holiday or in hospital etc) If they aren’t coming back you won’t hear anything from them and you’ve covered your back from every angle.


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