10:18 AM, 5th December 2011, About 12 years ago
Landlords working guide to housing case law Abandonment etc
This is the first of a new and occasional series (In other words as the mood takes me) where I try to explain my world as an enforcement officer for landlord and tenant law to people in your world, PRS landlords just trying to get by.
The thing is, landlords often get angry at people in my position because they perceive us to be difficult, unhelpful and obstructive to people trying to earn a living but our job is to ensure that the law is adhered to. In short, my world is not your world even though we are both in landlord & Tenant.
Case law is different from statute and is where most housing advice work is done. As frustrating as it may seem, this is the world that the landlord enters into the minute they hand over keys to somebody else
Today’s topic – Has he gone or what?.
Abandonment – Termination – Surrender. What’s the difference?
The differences are important, for instance if a landlord thinks the tenant has abandoned the property and they re-let to another person and the original tenant re-appears then they could claim an illegal eviction has taken place.
The law says there can be no abandonment if there is evidence in the property of an intention by the tenant to return, however thin that evidence may be.
Hackney LBC v. Ampratum.
Mr Ampratum had a partner, Ms Bonney-Ofei who was deported to Ghana in 1993. Hackney council agreed to her assigning the tenancy over to Mr Ampratum but Ms Bonney-Ofei failed to transfer the tenancy in writing so the council held that Mr Ampratum didn’t hold a tenancy and began possession action, claiming that Ms Bonney-Ofei had surrendered the tenancy by being deported.
The judge decided that there had been no act of surrender and that although the tenant had left against her wishes there was no evidence that she did not intend to return – albeit that the possibility of return was out of her hands. The judge took on board that she had left her family in occupation and that was the evidence of an intention to return. Accordingly, Hackney’s possession claim failed.
Clothes left in a property are usually enough evidence of an intention to return. Ms Bonney-Ofei left her kids, no need to go that far.
Sometimes a tenant will surrender the tenancy by chucking the keys back at a landlord. This would normally be commonly considered to be an act of surrender but wouldn’t ya know it? it is a little more complex than that.
Belcourt Estates v. Adesina
The judge in this case held that for surrender to have taken place there must be an ‘Unequivocal act of surrender’ and also ‘An unequivocal act of acceptance of that surrender on behalf of the landlord.’
The point being that it must be clear enough to both parties that the tenancy has ended so the tenant couldn’t come back a month later and claim that they misunderstood. So chucking the keys back through the letterbox isn’t surrender on it’s own.
Laine v Cadwallader
The tenant left the property and pushed the keys through the landlord’s letterbox. The landlord tried to sue the tenant for not giving sufficient notice and Cadwallader said that they had surrendered because of the key issue. The courts decided that in posting the keys back this was an ‘Offer of surrender’, but not an actual surrender.
There is a suggestion that surrender can be implied however.
Chamberlain v. Scalley
The landlord’s claim that in leaving the property Ms Scalley had surrendered the tenancy did not wash with the courts who pointed to the fact that her clothes and cat were left behind. The court of appeal did make the point that surrender can be implied where there is evidence of an intention to return, such as a rapidly starving puddy-tat, but the absence has been long and rent arrears on the large side.
The trouble with accepting surrender by a tenant is that if the property has been sublet to someone else without your knowledge then there is case law to say that the sub-tenant becomes your lawful tenant.
Basingstoke & Deane v. Paice.
The council granted a fixed tenancy to a guy running a garage who converted the upstairs bit into a flat and rented it to Mr Paice before surrendering the tenancy, which the council accepted.
When the council found out about Mr Paice they got a possession order against him as an unauthorised occupant. Mr Paice appealed and the Court of Appeal said that in accepting surrender they had also accepted Mr Paice as their shiny new tenant.
So there you go.
This is just a tiny part of the legal stuff that surrounds the relationship between you and your tenants. When your friendly local housing advice office seem to be getting in the way it is because these kinds of things are important.
I often feel in raising these issues that I’m really not helping the situation between 2 human beings in dispute very much but I wouldn’t be doing my job if I ignored them and pretending they don’t exist can land the blissfully ignorant landlord in hot water.
The Housing Law Casebook by housing Judge Nic Madge and Claire Sephton is only a grouping of some of the more important case laws. There are on average 2 – 4 case laws on each page and around 1,200 pages and the minute a landlord hands over keys to a property they are in the weird and wacky world of housing case law.
And all you wanted to do was make a few quid from a letting.