Tenant going to prison – how do I gain possession of my property?

by Readers Question

10:22 AM, 18th May 2016
About 3 years ago

Tenant going to prison – how do I gain possession of my property?

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Tenant going to prison – how do I gain possession of my property?

My tenant is possibly going to prison soon for breaching his bail conditions. Will this allow for speedy re-possession of my property, or will I have to obtain a Court Order to gain re-possession?Go to jail

He has already been served a Section 21 Notice to Quit which expired a couple of days ago. I’ve instructed a solicitor to obtain a Court Order to enforce the Section 21, although will this still be necessary if he gets arrested and held in custody?

He has also stopped paying rent and is over 2 months in arrears now.

If he does go to prison, and should I obtain a Court Order for re-possession, what am I able to do with his belongings which currently remain in the property?

All advice is greatly appreciated.

Many thanks

Marinus



Comments

Neil Patterson

10:36 AM, 18th May 2016
About 3 years ago

Hi Marinus,

Good question and I don't know and would only be guessing that you would still need the court order.

How long might the tenant be going to prison for?

Does he have family that could take his personal possessions?

Man on Stilts

11:26 AM, 18th May 2016
About 3 years ago

Hi Neil,
Thanks for getting back to me.

I'm hoping he'll be held in custody at least until his trial date on end July 2016 (the trial being for criminal damage to my property).

We have no contact details for anyone but the tenant, and he refusues to answer any form of communication e.g. phone calls, texts, emails, letters.

I am hoping one of your many readers will have had experience in this same situation and share it.

Neil Patterson

11:44 AM, 18th May 2016
About 3 years ago

Oh dear he sounds like a charmer!

You may need the experts on this one. Please see our tenant eviction page under the legal advice tab >> http://www.property118.com/tenant-eviction-2/

Gary Nock

16:09 PM, 18th May 2016
About 3 years ago

Hi Marinus

I think your solicitor is the one to ask on this. But logically the fact that the tenant has arranged " other accomodation" via HMP Prisons ( A Not For Profit Landlord) would not allow you to repossess the property without a Court Order. It is unlikely to be classed as "abandonment". Get the court order and when and if he goes away send a 14 day letter to his place of confinement stating that any goods not removed after 14 days will be disposed of as per the terms and conditions of his tenancy ( assuming they are in there)

Man on Stilts

16:16 PM, 18th May 2016
About 3 years ago

Gary,
Thanks for your reply.
Action has been taken today by applying for a Court Order. Hopefully he'll get taken into custody and the Judge will deal with this swiftly.

I like the idea of writing to him at his new abode, advising him his belongings are being disposed of.

Thanks again.....

Paul Franklin

9:53 AM, 19th May 2016
About 3 years ago

Yes you would need a court order.
In these situations it's usually best to try to get hold of the tenant to get them to sign a tenant's NTQ to relinquish the tenancy but doesn't sound like that will be possible in your case? This is usually in the best interests of the tenant as well to avoid rent arrears/court costs building up.
As Gary has said, with regard to belongings, you need to give reasonable periods of notice for the tenant or his friends/relatives to come and collect the belongings. If you want to empty the property asap after you have regained possession this may include taking care to store them elsewhere. This is under the Torts Interference with Goods Act.

Londoner P

10:40 AM, 19th May 2016
About 3 years ago

Hi. I was in similar situation where my tenant caused damage to my property couple of years ago. I evicted her using section 21 and bailiffs. However I didn't pursue for the damaged she has caused as she was already on benefits and have bad credit history so there was no point running after the money you never going to get. My advise would be to enforce section 21, get the court order and evict him and also consult with your solicitor.

Please note I am not a legal advisor. I am saying this from my experience.

Good luck.

Ash

Mandy Thomson

10:52 AM, 19th May 2016
About 3 years ago

This is a somewhat academic point, but I raise it here because although Marinus' situation happens a lot, I haven't come across anyone ever posing the question as to how this might change the terms of the tenancy - I'm hoping someone on here might be able to give a definitive answer.

If someone were imprisoned long term (several months or years) wouldn't the prison then count as their main residence, and not their former home?

Assuming that is the case, for an assured shorthold tenancy to exist, the property must be the tenant's main residence. If it is not, the tenancy can't be an AST, only a contractual tenancy (such as that granted for short term lets etc).

Therefore, if a tenant moved out, but still retained possession of the property, while there would still be a tenancy, would this not be demoted from an AST to a contractual (common law tenancy)? For example, where council tenancies are concerned, if a tenant moves out temporarily, but retains possession of the property (I'm talking about a LEGAL sublet situation here, granted for genuine reasons), their tenancy IS demoted from a secure tenancy to a non-secure tenancy until they move back in.

Where Marinus is concerned, if the tenancy was demoted to a contractual tenancy, this would mean he need simply serve a notice to quit, giving one month's notice (assuming he regained possession by other means).

Paul Franklin

11:07 AM, 19th May 2016
About 3 years ago

Reply to the comment left by "Mandy Thomson" at "19/05/2016 - 10:52":

I don't think prison can be a main residence because the intention is not to stay in prison. The intention is for the tenant to return home. The prison, if anything, is the temporary residence, but not the principal home.
The question over main residence is fairly academic in any case. Many people may assume that if a property is not a main residence and therefore cannot be an AST, that a tenant's protection from eviction would somehow evaporate. This is not the case. S.21/S.8 notices wouldn't apply to the common law tenancy but there would still be a requirement for the landlord to serve a valid written NTQ giving at least 4 weeks notice ending at the end of a period of the tenancy. If the tenant does not give up possession the landlord is still required to obtain a possession order and bailiff warrant under s.3 of the Protection from Eviction Act. Therefore it's hardly any different and if anything potentially more complicated than using the tried and tested s.21 process and accelerated possession proceedings.

Lee Dunning

11:17 AM, 19th May 2016
About 3 years ago

We are just doubt a possession with a tenant in prison under section 21. We also have section 8 in place.

The NLA helpline advised that possession would still be required.

The possession court order was served to the prison.

Awaiting hearing .

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