When I started acting for landlords I had never heard of abandonment notices. I suspect that most lawyers reading this won’t have heard of them either. So far as I am aware, they are not mentioned in any of the law books.
However they are a well known tactic among landlords and letting agents. What are they?
What is an abandonment notice?
An abandonment notice is a notice fixed to the outside of premises which a landlord believes to have been abandoned by his tenant. It gives notice that the locks have been changed and informs the tenant that should he return within a specific period of time (e.g. 14 days) he can obtain the keys from the landlord, but that if he fails to return during that time, the property will be repossessed.
It is understandable why landlords and agents want to use these notices. Court proceedings for possession can be expensive and time consuming. While they are ongoing, landlords are losing rent. Posting a 14 day abandonment notice gives the illusion of doing something legal and means that they don’t have to pay legal costs to those pesky solicitors.
But is an abandonment notice legal?
Personally I think they are not only a complete waste of time, but also a risky course of action. Why?
Well, most importantly, the Protection from Eviction Act 1977 makes it clear that it is both a civil wrong and a criminal offence to repossess a property other than via a court order for possession. So any landlord who repossesses without one is always taking a risk.
Implied surrender
There is a legal rule which states that if the conduct of the tenant is inconsistent with an intention to continue with the tenancy, this will be considered to be an implied surrender of the property, which the landlord can accept by going in and changing the locks. However it is the action of the tenant which creates the implied surrender, not the action of the landlord in posting a notice on the door.
If a tenant has genuinely abandoned the property, if it really is an implied surrender situation, then an abandonment notice is unnecessary. The landlord can repossess immediately. The usual signs of a genuine abandonment are removal by the tenant of all his possessions and, most importantly, leaving the keys behind. Giving up the keys is normally considered to be a symbol of giving up possession of the property.
Long absences
However if the tenant is just not there for a long time, this does not necessarily mean he has abandoned the property. He could be on holiday, he could be in jail or he could be in hospital. None of these situations entitle the landlord to recover possession without a court order.
If a tenant comes back from being hospitalized for six weeks after a nasty car accident, to find that his property has been repossessed by his landlord, the fact that an abandonment notice was posted on the door for 14 days will not, so far as I can see, afford any defence whatsoever to a claim against the landlord for unlawful eviction, compensation, and (if the property has not been re-let) an injunction ordering the landlord to let him in again.
How can the tenant be expected to see an abandonment notice if he is laid up in hospital?
There is another problem with these notices. If they are fixed to the outside door you are telling people that the property is empty. Which might be something you would prefer burglars and potential squatters not to know about.
Is there ever any point in using an abandonment notice?
In my view it will not afford any defence to a civil claim against the landlord for unlawful eviction. However unlawful eviction is also a criminal offence. It is just possible that leaving a warning notice on the door could afford some sort of defence to a prosecution for unlawful eviction.
However I have not been involved in any prosecutions myself – if any Local Authority prosecutors are reading this, please can you leave a comment?
If abandonment notices are ever used, they should only be used on internal doors, perhaps for a room in a shared house. Don’t invite problems by putting them on the external street door. And bear in mind that they are probably a complete waste of time.
Have you used an abandonment notice? Have you any views on their legality? Are you aware of any cases where they have been used successfully as a defence to either a civil or a criminal claim for unlawful eviction?
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Glad to hear you saying it. I have been telling agent sand landlord for year that they carry no legal validity.
The point most misunderstood is that the tenant does not have to live in the property if they don’t want to, it does not stop them being the tenant. I once rented a property for my own reasons for 6 months and did not live there during that time. It id not mean I was not the tenant.
Keep up the good work dispelling these myths!
That is very true. Likewise a tenant remains liable for the rent even if he has moved out, up until the end of the fixed term.
So far as occupation is concerned, it is really none of the landlords business whether the tenant is staying at the property or not.
Although I suppose there may be an issue with the insurance if the property is left vacant for a long time. But this is a risk the landlord takes by letting the property in the first place.
Are you suggesting therefore that if you genuinely beleive a tenant has left, then you don’t need one anyway and can just repossess immediately? Say a tenant who owed large rent arrears, who had been served a section 8 notice to leave by a certain date and is also at the end if their fixed term. Is seen by neighbours to be moving out and has left only a few worthless possessions old magazines etc behind. But no keys. Now not contactable. Not in prison etc. Technically needs a court order? But really is that necessary?
Its always a bit of a risk if they have not left the keys behind. But in your scenario it might be worth the risk. Particularly as they would be unlikely to claim for compensation – it would not benefit them as it would be offset against the rent arrears.
There is more guidance here: http://www.landlordlawblog.co.uk/2010/08/11/landlord-and-tenant-law-implied-surrender-explained/
Thanks for your useful guidance. I was told by the council to put one of these notices on the door of a property I own, when really they have undoubtedly implied surrender They have removed all their things, rented a property around the corner, stopped paying rent, told me they were going by text, told me face to face, offered to send me the keys, but still nothing in writing? Martin.
It sounds like it. But whether they have or whether they haven’t, my view is that an abandonment notice won’t make any difference. Although no doubt the Council will be estopped from prosecuting you for unlawful evction.
See also here about implied surrender http://www.landlordlawblog.co.uk/2010/08/11/landlord-and-tenant-law-implied-surrender-explained/
Always a grey area. David’s comment about not having to live there is a mistake I think, one of the conditions of a tenancy is that a person must occupy as their sole or principal home. If you dont live there it creates a problem. This is why when a social housing tenant sub lets and moves elswhere they lose all tenancy rights to assign, succeed, buy etc and dont regain them when they re-occupy unless a new tenancy is agreed.
Similarly when a tenant signs a tenancy agreement but is then not alowed to move in, the tenancy is not yet in force until occupation has been taken up, because it is not, at the time, used as a sole or principal home.
As to the abandonment idea. Personal belongings left in the premises can suggest an intention to return. Tessa is right when she talks about people being in hopsital or prison etc and not being aware of it.
For true surrender to take place there must be an unequivocal act of surrender and an unequivocal act of acceptance, this is why surrender is harder to deal with than a deed of termination, where it is all formally done in a notice.
I wouldnt necesarily back off of prosecuting for illegal eviction where the landlord claims abandonment. I would want to know a lot about it first as rogue landlords often claim a tenant has left when they havent.
I have every sympathy for landlords in this difficult position and if I am approached in these kinds of cases I just advise the landlord to get a possession order anyway, to avoid the possibility of someone being released from prison or hospital etc and making accusations. Councils tend to do this as a matter of course to avoid possible future complications.
I’m not sure I would not prosecute a landlord for illegal eviction if they claimed surrender, it would depend on the big picture really
Just to clarify, not living in the property won’t stop it being a tenancy. However it could mean that the tenancy is no longer an assured shorthold tenancy, but reverts to being a common law tenancy.
As Ben says, the legislation (specifically s1(b) of the Housing Act 1988) provides that it is a condition of an assured tenancy (and also an assured shorthold as that is a type of assured tenancy) that
the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home
Hmmm. This is typical of the vagaries and complexity of housing law. I have always worked on the asssumption that occupation as a sole or principal home is a given of all tenancies, regardless of type, including excluded licences (Lodgers) where there has to be a resident landlord and the sole or principal rule is at the forefront..
I know that Council tenancies, known as ‘Secure’ tenancies apply the same ruling. Even if their tenants sub let with permission of the council (for instance if the tenant has a fixed term work contract abroad).
Getting off the point though. Although it is worth mentioning, for anyone interested, that there are around 16 different tenancies and licences, all with their own rules and regulations…..it aint all just ASTs out there folks