Tenant not giving keys back and gone AWOL at inspection?

by Readers Question

10:20 AM, 7th January 2019
About A week ago

Tenant not giving keys back and gone AWOL at inspection?

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Tenant not giving keys back and gone AWOL at inspection?

I provided my tenant with a Form 6A / Section 21(1) form in October with the agreed date of 3rd Jan 2019 to vacate the property. At the time, she seemed agreeable to the arrangement and was understanding of my change in circumstance which meant I needed her to vacate the property.

I liaised with my tenant about when to arrange the check out inventory inspection and we agreed on 3rd Jan morning so that she could hand the keys over to the inventory clerk and allow them to proceed with the check out inspection.

However, she was not at the property on 3rd Jan nor did she turn up to meet the inventory clerk. Both myself and the inventory clerk have tried to contact her by phone/text/email several times to no avail, in order to rearrange the check out as well as arrange handing over the property keys.

Given that she still has the keys, and hence access to the property, I cannot arrange for the checkout inspection to be done.

I was due to move into the property myself on 7th Jan but now am unable to do so.

Is anyone able to offer some advice as to how best to proceed with regards to getting the keys back and getting the check out sorted so that I can organise the deposit to be returned to the tenant and organise moving in myself?

I have read a mixture of articles online, some saying the tenant is liable to pay rent until keys are returned, others saying that she may try to claim that I have unfairly evicted her and that this can land me in jail!

I will also need to get the locks changed before I can arrange the check out – in a normal situation I would do this between tenants anyway but as I cannot even complete the check out now and need to get the locks changed as a matter of urgency, is this something to charge to the tenant?

Thanks in advance!

Kay



Comments

Neil Patterson

10:33 AM, 7th January 2019
About A week ago

Hi Kay,

You have not given any indication that you have proof the tenant has surrendered possession so unless you have this you can't just change the locks without risking a wrongfull eviction claim.

Please see Tessa Shepperson's article "I think my tenant has left, can I change the locks?" >> https://www.property118.com/i-think-my-tenant-has-left-can-i-change-the-locks/

You need to be very, VERY careful about this. Once a property has been let to a tenant it is effectively his. He is entitled to live in it without interference from the landlord.

This is set out in a clause (rather quaintly called the ‘covenant of quiet enjoyment’) which is implied into all tenancy agreements, whether it is set out in the written terms and conditions or not. Mostly it is.

So the landlord has no right at all to go barging in, whether he thinks the tenant is there or not. After all a tenant does not HAVE to live in the property if he does not want to. Also, he could be on holiday, in hospital or in jail. None of which entitle the landlord to go in and repossess.

So the fact that the neighbours have not seen your tenant there for a while does not mean that you are legally entitled to just go in and change the locks. For example, if the tenant was merely on a long holiday and he came back to find that you had changed the locks he would be entitled to an injunction to get let back in again and financial compensation from you, particularly if you had re-let the property to someone else. Plus you would almost certainly be ordered to pay his legal costs as well. It could turn out to be a very expensive mistake.

If I also tell you that there are believed to be some tenants who deliberately pretend to have vacated, so that they can entice their landlords into repossessing to potentially sue them for damages, you will appreciate that there is a great need for caution in this situation.

However there are times when you can go in and change the locks. How can you tell when this is?

The doctrine of implied surrender

The legal justification for repossessing a property in the absence of the tenant is that you are accepting what we lawyers call an ‘implied surrender’. This is when the conduct of the tenant is inconsistent with an intention to continue with the tenancy. You can then accept this implied surrender offer by re-entering the property and changing the locks, and this then ends the tenancy.

The best and clearest example if this is if the tenant stops paying rent, moves out all his possessions, and leaves the keys behind. Giving up the keys is considered to be a symbol of giving up possession. So if you have a situation where they have been left behind you are generally safe to repossess – so long as the tenant has actually moved out, and has not just left them behind by mistake while popping out to the shops!

However, if the keys have not been left behind, particularly if some of the tenant’s possessions are still there, you should back out of the property (assuming you have entered with your keys and an independent witness, to check the situation) and obtain a court order for possession.

Obtaining a court order for possession is the ONLY 100% safe way to repossess a property with no risk of any claim for compensation for unlawful eviction. Anything else is a risk. You may consider that it is a risk worth taking, particularly if the tenant is in serious arrears of rent. However it IS a risk and any solicitor you consult will advise you to go to court.

What if you have no keys or way of checking? For example if the flat is on the sixth floor and you cannot peer through the windows? Then your only option is the court order for possession.

The abandonment notice myth

“But” you are probably saying, “Why don’t you just put an abandonment notice up on the door?” “Because” my answer would be “they are nonsense”.

When I first started working in property law, I had never heard of an abandonment notice. They are in none of the legal text books. They are a myth perpetrated by landlords and agents who don’t want to go to court. But they do not, and cannot have any legal efficacy.

Here’s why:

If the tenant has given up and gone, if there is a genuine situation of implied surrender, you do not need to put any notice on the door. You can just go in and change the locks, now, entirely legally.
If, on the other hand, it is not an implied surrender situation, if the tenant is say, merely staying longer than expected with her Great Aunt Mary (perhaps GA Mary has fallen sick, and she is staying to nurse her), then you have no right to go in and change the locks. Any attempt by you to do so will certainly be unlawful eviction which is both a criminal offence and (as we have seen above) a civil wrong entitling the tenant to bring a claim for compensation.

The problem is working out which of these situations apply. Things are not always clear cut.

matk

11:16 AM, 7th January 2019
About A week ago

Dear Neil,

Thank you so so much for all the information. It is incredibly useful!

I have since found out that the tenant has not paid the last 2 months of rent (since Section 21 was served).

Neighbours at the property confirm the tenants moved out on 31st Jan and on reviewing the outside areas it appears that they have emptied the property of their possessions.
The issue, however, is with the location of the keys.

Would it be appropriate to enter the property now to see whether they have left the keys there?
If they have and the property is empty of their possessions, like you said, we should be safe to repossess the property.
If not, we will have to go down the court order route.

Also, if they still have legal rights to the property, as they have the keys, are they also liable to pay rent, bills, council tax etc until the point of either keys being returned or property being safely repossessed?

Thank you so much again!
Kay

Jan Martin

11:41 AM, 7th January 2019
About A week ago

Tenant becomes liable for all bills if you find no keys at the property
Take a reliable witness with you into the property and when you find your keys take pics for your proofs .
Hope it works out for you .

Kate Mellor

18:07 PM, 7th January 2019
About A week ago

Hi Kay, do you actually have keys for the property? If so then yes, send 24 hours written notice that you are inspecting at x time & date and go in and check. It is VERY common for tenants who owe rent to hide from the landlord and ignore all communications. Some do put the keys through the letter box on the way out.

If you find the keys haven’t been left then you could explain by text if it’s the only means you have that without the keys and a note from them confirming they’ve permanently left the property you’ll have no choice but to apply to the court for possession & instruct a bailiff, all of which costs will be added to their outstanding account and result in a CCJ along with rent due until that time which could be several months worth. You could also offer to waive the outstanding rent due (aside from keeping the deposit if you have one) in exchange for them putting the keys through the letter box along with a note. It’s worked for me before now and works out far cheaper than the alternative.

Let’s face it, they don’t give two hoots about you & will need a carrot & stick to help them do the right thing. Good luck 👍🏽

matk

10:08 AM, 13th January 2019
About 3 days ago

Dear Jan,
Thank you so much for your advice and wishes!

Dear Kate,
Yes we have our own set of keys but have been reluctant to enter the property without a witness. Fortunately, we have finally heard from the tenant! She has emailed confirming she vacated the property on 31st dec and that she has left one set of keys in the flat and the other through the letter box.
We are arranging to meet an inventory clerk at the property on tuesday and together we will go into the property and see the condition it is in as well as collect the keys so as to legally repossess the property. Hurrah!

With regards to the deposit, we will have to speak to the deposit scheme because the 2 months rent exceeds the deposit amount; depending on the amount of damage/mess in the property (in her email she was extremely angry at having been asked to leave the property and even told us she had been told she could sue us for serving her with section 21 notice so i'm going to assume she has not taken the necessary action to leave the flat in a suitable state!) I'm guessing we will have to go to court to claim the outstanding rent and any further costs revealed by the inventory.

Upon liaising with the estate agents who initially found her as a tenant, they have information of a guarantor for the tenant. Before going through court proceedings etc is it better to contact them for the rent arrears?

Thanks again in advance!!
Kay

Jan Martin

14:23 PM, 13th January 2019
About 3 days ago

Reply to the comment left by matk at 13/01/2019 - 10:08Dear Kay ,
Yes speak to the guarantors and test their reaction and you will know if you have a fight or not. Hopefully they would of signed paperwork to the effect you can make a claim from them .First thing is to speak and see how the land lies.


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