Abandonment Notice | An alternative to a Possession Order?
There is only one legal route for a landlord to obtain vacant possession of their property when a tenant refuses to leave. This is through obtaining a court order, and then enforcing this order, through either County Court Bailiffs or High Court Enforcement Officers carrying out the eviction.
However, there are other practical ways in which landlords do obtain possession of their property. Some of these are:
- Express surrender by the tenant
- The tenant providing notice of vacating usually in the form of a notice to quit
- Implied surrender
- The tenant not answering to an abandonment notice
Each case is dealt with on the basis of it’s own facts, and we would always recommend that landlords seek legal advice before changing the locks and attempting obtaining possession.
However, to explore the fourth method in more detail, it makes sense to explain what an abandonment notice is.
Abandonment notice explained
Abandonment Notices are not a legal procedure but they can be a useful tool to ascertain whether the tenant is still in a property. Such notices are usually used when the landlord or agent has reason to believe that the tenant may have vacated, or abandoned the Property.
It is essentially a notice whereby the tenant is given a time period – usually 14 days – within which they should return to the property; being informed that if they fail to do so the property may be repossessed by the landlord.
However, landlords should be aware that just because a property appears to be abandoned, it does not necessarily mean it is. For example, the tenant could be on an extended holiday, in hospital or even in prison.
Therefore, landlords must always exercise caution when deciding whether to regain possession using this route. The Protection from Eviction Act 1977 states that it is a criminal and civil wrong to unlawfully evict a tenant.
Even if the tenant doesn’t confirm they have not vacated the property, the landlord shouldn’t assume the tenant has abandoned. If they make a mistake and look to recover possession, then they could end up with a claim against them for unlawful eviction. This means a landlord could end up paying the tenant substantial compensation or even allowing them back into the property.
If we then consider the use of an abandonment notice alongside implied surrender; a helpful quotation from case law to explain an implied surrender is: ‘the conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended’.
Therefore, in the event a tenant:
- Stops paying rent;
- Doesn’t answer calls or emails;
- Appears to have removed their possessions from the property; and
- returned the keys to their landlord.
Then, this conduct is clearly inconsistent with an intention to continue the tenancy.
Therefore, it is crucial to differentiate an implied surrender from the tenant being absent for a long period of time. The latter would not of itself amount to an implied surrender, and an abandonment notice, would not be enough for a landlord to take back possession. In these circumstances, the landlord would need to obtain a possession order.
Although the abandonment notice could be seen as a further attempt taken by the landlord to ascertain whether the tenant is in the property prior to changing the locks, its use is limited to those circumstances where a landlord genuinely considers the tenant to have abandoned the property.
Therefore, it is imperative that landlords should not place too much reliance on this process and should always seek legal advice when looking to repossess any property.