Implied surrender and changing the locks

by Readers Question

18:59 PM, 6th April 2013
About 6 years ago

Implied surrender and changing the locks

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Implied surrender and changing the locks

Implied surrender and changing the locksIs this a case of implied surrender and is it safe for me to go and change the locks, asks Landlord Karen Southworth.

“My tenant gave notice on the 6th march by text message.

The AST was due to run out on the 9th April and I also had issued a Section 21 notice for the 9th April.

My tenants last rent was due on the 20th March which she did not pay.

I arranged to meet the tenant at the property on the 5th to sign it off.

On inspection there was extensive damage to a kitchen worktop and also the sofa and bed frame were dumped in the yard. I pointed these things out to her and asked if she would rectify them herself or prefer me to do them and levy charges from her deposit, bearing in mind that the unpaid rent was already coming out of her deposit.

She has refused either option stating that she will contact a solicitor and refused to give me the keys back.

The property is empty and she has not lived there for at least two weeks as she sent me a text saying she had moved out.

Can I now go in and change the locks ?

Is this a case of implied surrender ?

Your comments will be very much appreciated.

Karen



Comments

Mark Alexander

19:12 PM, 6th April 2013
About 6 years ago

Hi Karen

Isn't it strange how some folk behave?

Why a person would take the risk of facing litigation and damaging their credit record and the ability to rent another property from a decent landlord baffles me.

Now I'm not a lawyer so don't treat this as advice, however, based on what you have said, especially if you have kept the text message, this is what I would do.

I would write to her if I had her new address or email address. If not I would respond to her text. My message would say, "thanks for your text confirming you have moved out and please return your keys to me as it is my standard practice to change locks and re-use them in other properties for security purposes. I am having the locks changed on XXXday. In addition to the missed rent and the damage I spotted when we met I will also be deducting the costs of cutting new keys from your deposit if you do not return the keys to me. If/when I hear from your solicitor please note that I will be making a counter claim against you for the amount you owe me which exceeds your deposit. Unless matters are settled amicably I will also be registering you with Landlord Referencing services and giving future landlords an accurate account of your conduct if I am ever approached for a reference. I have not decided yet whether to commence litigation for my losses but please note that if I do I will also be claiming for costs."

I have never had a deposit dispute but I have had a few tenants try it on like this one has. I think taking a tough stance and having all my facts and paperwork in order has been my saviour.

Best of luck and please let us know how you get on.

It will also be interesting to read comments from others in terms of what they think and what they would do if they were in your position. Just make sure you don't delete the text from your tenant!

Mark

Mary Latham

14:15 PM, 7th April 2013
About 6 years ago

I am not legally qualified but in my opinion the safest bet is to get a Court Order to enforce your S21 before you change locks or re-let the property. A text message is not witten Notice.

While you are waiting for the Court to give you a Possession Order write to her and tell her what you are doing. Ask her to return the keys. Tell her what you are considering claiming from her deposit and tell her that she has the right to as for arbitration from the Deposit Protection Scheme that you used if she does not agree. I am assuming of course that you gave her the Deposit Protection Centificate and Prescribed Information for tenants from the Protection Sceme If you didn't you need to return 100% of her deposit to avoid her taking legal action against you.

Also put her details on http://www.landlordrefercing.co,.uk to warn other landlords and tell her that you have done so this may make her realise that there are consquences to her actions.

Another alternative is to offer to write off some of your losses and return more of her deposit than is due if she returns the keys within 24 hours and writes to you to confirm that she has surrendered the tenancy. Register her with LandlordReferencing and relet the property.

Its your choice and depends on whether you prefer to lose rent and go through legal action or want to relet the property quickly and avoid further losses which you are unlikely to recover from the tenant.

Whatever you decide Good luck

Follow me on Twitter@landlordtweets

19:59 PM, 9th April 2013
About 6 years ago

Hi Mary,
Are you sure you still cannot take a text as written notice or at least use it as supporting the evidence of surrender. I do not know however I am sure I have previously read from a reliable that this is possible.

A general note about texts as evidence. I have an App on my phone that emails me a backup of every text received from or sent to someone in my contact list. You can also create your own list of which contacts it applies to . A great thing to shoot down the 'I never said that' statements. Its all there to print out later for your solicitor, Deposit scheme or whatever.

Freda Blogs

21:03 PM, 9th April 2013
About 6 years ago

I agree with what has been suggested above.

Most likely the solicitor threat is hot air - it usually is unless you have a 'tame' one that can do the work at minimal cost, and if this is case, it is improbable that any solicitor would advocate this tenant's actions.

Although i am friendly and approachable with my tenants, in written communication I am quite formal and careful what I write, just in case it all turns sour, so that anything that is written can later 'be produced in evidence' as they say...always have regard to the end game.

@Ray: what is the name of the app you mention? Thanks.

22:40 PM, 9th April 2013
About 6 years ago

Hi Freda,
The App is called SMS Backup and its for Blackberry. It may be available for other phones or I am sure there are other similar Apps out there.

Steve Masters

8:40 AM, 10th April 2013
About 6 years ago

Hi Karen,

I would do as Mark or Mary suggests and write but I would also issue an 'Abandonment Notice'. Google it for more info.

Steve.

Andrew Craig

9:58 AM, 10th April 2013
About 6 years ago

Hi Karen, I had a similar issue where I had to evict a tenant. I went through the whole process but was never informed by her that she had moved out. When I visited the heating was on full lights on music on etc. I turned everything off. The house appeared fully furnished and lived in. The next door neighbour was a police officer and told me he thought she had moved out a month earlier. So on the day the eviction order came through I changed the locks. I was intending to bag up her life but in the end there was just too much, On examination everything was damaged in someway so in the end I tipped her whole life which was essentially a full 3 bed house removal which took us 2 days. I did hear from her social worker a month later requesting she be allowed to collect some personal items. I had kept her photographs so handed them back to the social worker. It was stress full at the time. I did take photographs of every room, the broken sofa legs the bed slats that were held together with tape etc.
If it was me I would enter my home take photographs of the condition of everything, hopefully it will be empty of their belongings. Then I would change the locks, courts are a big stick to beat us with but generally the magistrates are educated people who make sensible decisions. If you have pictures of damage an empty property etc, a text saying she has moved out logically if in the unlikely event she pursued you(particularly as legal aid will have dried up) any sensible court would rule in your favour Good look .

Industry Observer

10:31 AM, 10th April 2013
About 6 years ago

Briefly

Follow Mary Latham's advice on this one.

Notice has to be in writing anyway and text does not count. Neither in all probability does email and you certainly cannot serve notice yourself by email.

It cannot be implied surrender if she has specifically refused to hand over keys.
DO NOT change locks

I would take the solicitor comment VERY SERIOUSLY as if she investigates it you are possibly into a no win no fee situation here and on the losing end if the tenancy has gone periodic and you have not reprotected the deposit and re-issued Prescribed Information.

With all due respect if a self managed situation your initial PI form will almost certainly be incomplete anyway.

10:50 AM, 10th April 2013
About 6 years ago

I had this happen to me. Advise from my solicitor was to text the tenant as I had no forwarding address, saying I was going to change the locks and asking for the keys back. I was also told to put a notice in the front window of the property saying the same and giving 2 weeks notice. If the tenant hadn't contacted me after this date, then the solicitor would argue that it was abandonment if it was taken to court, as I had done everything possible to resolve the situation. The tenant later put a case forward to Citizens Advise who through it out. Hope this helps.

Mark Alexander

10:51 AM, 10th April 2013
About 6 years ago

Advice here from Tessa Shepperson who is a highly respected solicitor in this area >>> http://www.property118.com/index.php/i-think-my-tenant-has-left-can-i-change-the-locks/5736/

Sometimes it is necessary to take commercial decisions.

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