Is this a landlord setup?

by Readers Question

8:08 AM, 15th November 2012
About 6 years ago

Is this a landlord setup?

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Is this a landlord setup?

Readers QuestionsAlex sent the following email last night outlining a bizarre situation he finds himself in which looks to us like a “landlord setup”.

We have invited some of the most knowledgeable people we know to comment on this thread as the circumstances Alex has described look to us to be potentially fraught with legal problems.

Please read Alex’s email below and subscribe to this thread to follow the advice given by industry experts. To subscribe to comments of this thread simply add your email to the box just above the “Commenting Advice” below this article and click the orange button. You will then receive an email from Google Feedburner asking you to click a link to confirm your subscription to this thread – obviously it’s free 🙂

I would like some advice on a situation I have never faced before. 

My tenant was due to pay his rent on the 1st November 2012 and I usually go to the property to collect it, however I got a message from him to say there was a problem with his bank account and could I collect it on the 4th instead, which I agreed to. However on the 4th he requested I meet up with him on the 5th instead. 

On the morning of the 5th I had a text message to say he had been attacked outside the property and had been admitted to hospital!! I contacted the police the following day out of concern but had been told they would not give me any information about the situation, and I should speak to the tenant direct, but I told them it was difficult to do this as he was in hospital, to which they advised he had been discharged.  When I tried to contact the tenant no one was answering or returning text messages, eventually he contacted me via a text to say he was still in hospital and could not pay the rent,(but he didn’t know the police had already told me he had been discharged), he also said he did not feel happy to go back to the property or continue with the tenancy agreement because whoever assaulted him knows where he lives.

The following day he text to say he has “gone into hiding” as the police have provided somewhere safe for him stay and he would not be able to pay the rent. I tried several times leaving messages asking him to call me so we could sort this out, but he just ignored them all. 

That night I had a call at 10pm from a neighbour saying someone was trying to kick the side gate in  which is the entrance to the property.  We went down to check it and found the key would not fit in the door and the gate was wide open. We secured the gate and had to change the lock because the key would not go in, at the same time I contacted the tenant to inform him of the situation, but only through texting and got no answer from him.

On the 9th I had a text from him saying I had no right changing the locks or bolting the side gate from him and he wanted access to his flat as he had been to the citizens advice bureau informing him of his rights. I phoned him straight away and said I was more than happy for him to have access but asked why he had not returned any of my calls. In the meantime I had contacted the police asking for them to give me more information about the situation because the tenant was claiming he had a broken jaw and fractured ribs and he had gone into hiding, however the police said it sounds as if the tenant was fabricating his story and he has not been put in a “safe house” 

As you can imagine there is a picture forming here so I agreed to meet with the tenant at the flat , he collected some stuff and asked I lock up and keep the gate bolted because he did not want his “stuff” pinched. I asked him about the rent owing and he said he would be in contact. Days later I still hadn’t heard anything from him so I contacted his guarantor who was aware of the assault but not the rent left outstanding.

I have had the tenants girlfriends mother on the phone accusing me of being insensitive and uncaring but I explained I have been very patient and still had not received any rent 12 days on and no contact from the tenant!  I also explained to her my mortgage still has to be paid regardless, to which she slammed the phone down!

I am now left with a dilema, the tenant claims he cannot go back to the flat and no one knows where he is and he’s still got his stuff left in the flat but also he did not take a key when I met with him asking I keep an eye on the property for him. The guarantor has been informed that we will take action if the tenant does not pay the rent.  What action do we take as I presume we have to give him 8 weeks grace to pay it? How can you serve any notices if you do not know where he resides? What happens with his possessions and could he be deliberately waiting for us to evict him so he can get out of his Tenancy Agreement? Finally why did he not take a key which at the time I thought nothing of it but now I’m concerned it will look like we have changed the locks to stop him having access.

I realise this is a long email with lots of detail but would appreciate any advice on moving this forward.

Regards

Alex

 



Comments

Mark Alexander

8:31 AM, 15th November 2012
About 6 years ago

Good morning Alex

To get the ball rolling with the advice I have a few questions and suggestions. My main concern for you is not the the missed rent as you have a guarantor signed up. I'm worried for you because there seems to be a possibility that the tenant is setting you up for an illegal eviction claim.

Are you into a fixed tenancy period or statutory periodic?

Have you saved all of the text messages? I strongly recommend you do as you may need to rely on them as evidence in Court. It's perhaps a good thing that the preferred method of communication between you and your tenant is text as this is good evidence if this does go to Court. I suggest you use this to build your case, i.e. say all the right things in your text messages.

Have you asked the guarantor for a contact address for your tenant? I suggest you write to the guarantor outlining the position, requesting an address for your tenant and informing the guarantor that you will keep them updated with the position in writing. Make sure that any letters you send are with "proof of posting". You may wish to remind the guarantor of their legal commitments If I were you I would also offer a soft option, i.e. you will except immediate notice to vacate from the tenant if he no longer feels safe in the property. That will show that you are compassionate based on the circumstances if this ever goes in front of a judge.

It seems to me that the guarantor could be your lifeline here.

I wish you well and look forward to reading the advice from others.

Tessa Shepperson

8:36 AM, 15th November 2012
About 6 years ago

My advice would be just to to obtain a court order for eviction. Then the tenant cannot claim that you have done anything wrong or bring any claim against you for illegal eviction.

There may be a problem with service of the notice. Take a look at the terms of the tenancy agreement, and do what you can to bring it to his attention.

You may be helped by the case of Blunden -v- Frogmore Investments Ltd [2002] (which was about a commercial property). Here the property had been damaged in a terrorist attack and was unoccupied. The landlord had served the notice as required under the statute (both by affixing it to the property and by recorded delivery) but the tenant had not in fact received it. However it was held that as the statutory requirements had been complied with, the notice would be deemed served.

Mark Alexander

8:41 AM, 15th November 2012
About 6 years ago

Hi Tessa

The changing of the locks worries me. Clearly the landlord did this in good faith given the circumstances but is a Court of Law likely to see it this way if the tenant says "my nasty landlord changed the locks after I was just 4 days late on the rents and he's not given me a new key"?

Mark Alexander

8:54 AM, 15th November 2012
About 6 years ago

Further thought Alex. You really ought to file a Police report for the intrusion and the damage to the gate to cover your backside and also ask the neighbour who reported the incident to provide a statement. The more I think about this the nastier I think the situation could become.

8:59 AM, 15th November 2012
About 6 years ago

Hi, we have had similair experiences in our properties and it can be a very grey area. i cant give any legal advice on your situation (im not a lawyer) but what i can do is let you know how our situation turned out. 2 tenants we had didnt get on with the local "mafia" family and were basically ran out of their home, police couldnt do anything (tenants didnt want to press charges). We had their support worker tell us they were not safe to move back there, a txt from them saying the same thing and the police said the same thing, although they wouldnt committ that to paper. We changed the locks and boarded up the windows as the local kids were trying to get in. The tenants did come back a month later and triec it on saying we had illegally evicted them etc, Citizens advice was on their side and they had Legal aid so it didnt cost them anything
We contacted our solicitor who said that the tenants had given "implied surrender" through txts, statement from support worker, we had our solicitor write a nice letter to them and never heard back. We stored their stuff for 3 months and them binned it, giving some to the local charity that helped house them in the first place. This has happend on a few occassions where we have used the "implied Surrender" route. We were told the most important thing is the evidence and to save all txts, letters, statements etc as it can be grey area. Hope it helps

Tessa Shepperson

9:11 AM, 15th November 2012
About 6 years ago

The landlord needs to keep proper records of everything he did so he can justify his conduct if it is ever called into question. It is not really possible to advise properly on a situation like this in a forum, as any lawyer would need to take full instructions and perhaps take Counsels' opinion.

For example there may be something significant which is not in your article but which would affect a lawyers advice.

It looks as if, in this case, the landlord had no option but to change the locks in view of security issues.

But generally, advice to landlords is that it is unwise to re-enter / re-let a property where it is not clear that the tenant has given up possession and the landlord has not obtained a court order for possession and gained entry via the court bailiffs.

Sometimes a landlord will be safe to re-enter if the circumstances are that the tenant can be deemed to have impliedly offered to surrender but this does not seem to be the case here. See here for more on implied surrender: http://www.landlordlawblog.co.uk/2010/08/11/landlord-and-tenant-law-implied-surrender-explained/

Paul Routledge

9:59 AM, 15th November 2012
About 6 years ago

In circumstances such as this if the tenant has clearly given you notice and you can prove that he has abandoned the property and surrendered the keys in fear of his safety then quite frankly I would accept that and simply move on.

In circumstances like this the best thing about banging your head against a brick wall is stopping, what is paramount is to get your property back and a new paying tenant in ASAP.
I understand Tessa may well say go through an eviction process because that is crossing T's and dotting I's but you really do not need to do this if the tenant has surrendered his tenancy, told you he is not going back and given you the keys back.

I further suggest that you answer in respect of his cooperation in doing this that you will not pursue him for the outstanding rent - you can spend an awful lot of money here getting eviction orders you don't need and losing vast amounts of rent when it could be very simple and clear cut.

The best thing about a lying tenant is to get rid of them at the least expense and in the fastest manner possible.

Inform them that they can remove their belongings or you will keep them safe for a couple of weeks at a different location if they do not wish to come back to the property because they feel unsafe.

Do not make a mountain out of a mole hill!

Mary Latham

10:26 AM, 15th November 2012
About 6 years ago

From the information that we have it would seem that the tenant is indeed intending to leave the property without paying the rent due and the most important thing is to collect your rent and have a paper trail. I always play dumb so that the onus is on the tenant and my paper trail will prove that I acted in a fair and reasonable manner.

This is what I would do if this were one of my tenancies.

Contact the guarantor and ask if you can bring a key to them so that the tenant has access. I would confirm this in writing so that I had a record and get them to sign for the key if they accept it. If they do not reply send the key by recorded delivery and if they do not accept it keep the proof that it was sent. If you've got an emal address for the tenant copy him in to any correspondence

Does you tenancy agreement state at what point you will call on the guarantor to pay the rent? If not 14 days is long enough, chase your rent. If it is not paid take legal action to recover it.

Ask the neighbour to sign a short statement to say that he contacted you to tell you that the property was vulnerable and this will show why the locks were changed.

Ask the Police for a case number for the incident and make a record of the dates and times that you contacted them for information about it.

Make a note of the date that the tenant was discharged from hospital. It is not uncommon for a person to go to stay with relatives or friends having been discharged from hospital and it would not concern me that he had not returned to the property until he felt well enough.

Do not enter the property or remove any of the tenant belongings

My experience is that when they get nasty they are in the wrong and they are trying to bully you into making an offer to end the tenancy. Don't be bullied, you have done nothing wrong. If the tenant wants to end the tenancy he needs to tell you, you do not need to ask him. Until he ends the tenancy the rent is due, I am so pleased that you took a guarantee this will put pressure on the tenant.

Sit tight and wait for the tenant to make the next move

Follow me on Twitter@landlordtweets

Mark Alexander

12:33 PM, 15th November 2012
About 6 years ago

Thank you all for your responses to date.

The one remaining question is whether or not this is a case of "implied surrender".

Alex said that his tenant had told him"he did not feel happy to go back to the property or continue with the tenancy agreement because whoever assaulted him knows where he lives".

Is this implied surrender?

If it is then Alex look clear to pursue the guarantor for the unpaid rent and unserved notice and also to remove and store the clients posessions and re-advertise the property. However, if a Court rules that there was no implied surrender could this invalidate all of Alex's claims against the guarantor and leave him facing an illegal eviction charge.

It seems that our panel of experts are divided in there opinion of whether implied surrender exists here - very messy!

Mary Latham

13:36 PM, 15th November 2012
About 6 years ago

When in doubt sit it out!
Follow me on Twitter @landlordtweets

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