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Landlord's guide to notice of abandonment

14.03.22

By Alan Boswell Group

Notice of abandonment

What is tenant abandonment?

Tenant abandonment is where a tenant leaves a property before the end of a tenancy agreement without letting the landlord know. In some cases, the tenant may also leave their possessions at the property, leaving the landlord uncertain about whether they intend to return. If you are the landlord and you suspect the property has been abandoned, it can lead to a number of issues, including:

  • Uncertainty over the whereabouts and future plans of the tenant;

  • A loss of rental income until the tenant is found or you can re-let the property;

  • Security issues at the empty property;

  • Implications for your landlord insurance, which might introduce restrictions on the cover;

  • Abandoned possessions to secure and sort out.

Tenants should let you know if they expect to be away from the property for more than a fortnight. But even if they don’t inform you they legally maintain occupancy rights under the Protection From Eviction Act 1977.This means that if the tenant returns to the property but you’ve subsequently let it to someone else, you might be criminally liable.

Why does tenant abandonment happen?

Sometimes it is simply that a tenant has decided to move on and decided not to inform the landlord in the hope of getting away without honouring the remainder of the tenancy agreement. If they have taken all of their possessions as well, you might conclude that they don’t intend to return. If there is a history of them being troublesome, this might be another clue about what’s happened. On other occasions, though, the reason for their absence can be less sinister, and the tenant hasn’t actually abandoned the property. Perhaps they’ve gone travelling and failed to notify you in advance.

There might have been an accident, and they could be incapacitated in hospital. Or there may have been a family crisis and letting you know what has happened has been low on the list of priorities. You may decide to make enquiries with family, friends or even the authorities to try and establish what has happened. This could be especially relevant if the tenant was vulnerable, as they could be in trouble and need help. It’s important to remember that even if they’ve been to court and have ended up behind bars, they remain tenants.

This remains the case regardless of whether or not they’ve been paying the rent. What can sometimes appear to be abandonment might not be. That’s why you need to make sure you carry out a thorough process if you intend to issue a notice of abandonment.

What is a notice of abandonment?

The process of issuing notices of abandonment is laid out in the Housing and Planning Act 2016.If you believe that your tenant has abandoned the property, you can issue a notice of abandonment. But make sure you follow the process carefully because if it turns out that it isn’t a case of abandonment, the tenant will retain their rights to return to the property, and you face being accused of unlawful eviction if you act too quickly or fail to offer the tenant the opportunity to resolve the situation.

Warning notices

The first warning notice

The initial notice should be displayed prominently inside the property, and it should state that you believe the property has been abandoned, and that you intend to change the locks and take possession of the property. You should also send it to all other addresses that you have been given previously by the tenant. More details of your responsibilities when it comes to this are mentioned in the act. Include the date when you believe it was abandoned and the date when you intend to change the locks, as well as the date of the notice.

Make sure you include details of how the tenant can contact you, too. It’s a good idea to take photos of the notice and perhaps a video of you posting the notice through the door, in case an evidence trail is required further down the line. There is no law on how long you should give the tenant to remake contact with you, so you will need to decide what is reasonable. However, remember that if the tenant does reappear, they have the right to remain at the property, so it’s sensible to err on the side of caution. Acting too hastily and re-letting the property only for the original tenant to return can leave you with a logistical nightmare, as well as leaving yourself open to a charge of unlawful eviction.

The second warning notice

If you have no response to the first notice, you can proceed to issuing a second notice. This notice can be issued, provided the unpaid rent condition has been met, at least two weeks after the first one, but no longer than 4 weeks. In the second notice you should repeat the key information and state that you have had no contact from the tenant.

The third warning notice

If there is still no response you should leave a third notice, visible from outside the property which again repeats the same information as previous. There are a couple of requirements for this notice:

  • It can only be issued once 8 weeks have elapsed since the issue of the first notice.

  • It must be issued within 5 days of the date you have given the tenant to respond to you by on the notice itself.

(Be careful, though – you don’t want passers-by to see that the property is unoccupied as it might attract unwanted attention.)

This notice should explain that the locks have been changed, and again should include all relevant dates – when the property was first apparently left abandoned, when the first notice was issued, when the locks were changed. It should also give details of how the tenant can contact you, and a request for any third parties to let you know if they are aware of the tenant’s whereabouts.

The unpaid rent condition

For a landlord to be able to issue the second warning notice, they must satisfy the unpaid rent condition. This condition is met providing:

“(a) rent is payable weekly or fortnightly and at least eight consecutive weeks’ rent is unpaid,(b) rent is payable monthly and at least two consecutive months’ rent is unpaid,(c) rent is payable quarterly and at least one quarter’s rent is more than three months in arrears, or(d) rent is payable yearly and at least three months’ rent is more than three months in arrears." However, if the unpaid rent condition has been met, but the tenant makes a payment before the second notice is issued, the unpaid rent condition is no longer met.

What are a landlord’s responsibilities?

You need to do all you can to satisfy yourself that the tenant has abandoned the property before taking action. Ideally, you would have written confirmation from the tenant, but when people abandon properties they often – by their very nature – prove hard to track down. Under the Protection from Eviction Act 1977, a landlord is “guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises”. Keeping detailed notes of attempts to contact the tenant, as well as copies of correspondence and photographic evidence where possible, is so important.

How can landlord insurance help?

Landlord insurance is an important part of owning and renting out a property. Not only does it protect you whilst tenants are living in your property, it can also help to minimise your losses if you find yourself suspecting your property has been abandoned. One of the ways that your policy would protect you in a case of tenant abandonment is through an option to pursue the tenants for lost rent.

Tenant abandonment would constitute a breach of tenancy and you would be covered for the legal cost of pursuing the tenants for lost rent, although it would be dependent on having at least a 51% chance of having a successful claim at court. For a claim to be successful you would need to provide detail like the tenant’s forwarding address and the ability to recover costs. If your policy includes malicious damage by tenants, then you would also be covered for your repair costs if your property is deliberately damaged and left in a poor state by the tenant. An optional add-on to landlord insurance, rent insurance would cover rental payments due once two missed payments have elapsed.

Once you have issued a notice of abandonment, with a deadline date for the tenant to contact you, rent guarantee insurance will cover the rental payments up until the deadline date given to the tenant. It’s very important that you comply with the legislation for tenant abandonment. If it is found that you haven’t complied, you may find that a claim will be declined on your insurance as you haven’t met the terms of your policy.

What does a landlord do with abandoned belongings?

The Torts (Interference with Goods) Act 1977 outlines what a landlord should do with left-behind belongings. If you know where the tenant is, you should make efforts to ensure the tenant collects their belongings once you have taken back control of the premises. Failing that, try to get written confirmation from the tenant that you can sell or dispose of the left-behind belongings.

Once you have possession of the belongings, you should either give them to the tenant, leave them at the tenant’s current address or send them to the tenant’s last known address. If it’s not possible to track down the tenant, once you have made reasonable efforts to reunite the tenant with their items your responsibility for them finishes. There’s no specified time limit for which you are considered responsible, so err on the side of caution and keep a detailed note of everything you do and when you do it. It can be sensible to ask a third party to draw up an inventory ahead of their disposal.

While you are storing the belongings, you don’t have to keep them at the property. But if you do move them, you should inform the tenant where they are.

What about a tenant’s protection against unlawful eviction?

If the tenant turns up several months after you completed the abandonment process and demands to be let back in, you could face problems. As well as changing the locks and removing their left-behind belongings, you might have redecorated the property, found new tenants and drawn up a new agreement with them. Landlords who unlawfully evict their tenants can be prosecuted under the Protection from Eviction Act 1977, and in very serious cases they can be sent to prison.

If it does come to court, your defence will be strengthened if you have followed the abandonment process carefully and sensibly, and you can show how you gave the tenant every chance to resolve the issue and your efforts to contact them. There’s also the possibility that the tenant will claim damages against you. This might be for costs they’ve incurred trying to find somewhere else to stay, or for the distress of having found themselves locked out of the property. The Housing Act 1988 gives details about the damages that can be awarded for unlawful eviction.

Legislation and guidance included in this article is correct as of March 2022. Please note that legislation does change, it is always best to check the most up to date guidance on gov.uk. Landlord insurance policyholders of Alan Boswell Group also have access to a legal advice helpline where they can seek further advice.