Here is a question to the blog clinic from Peter who is a landlord:
I had a tenant who left her flat, went back to Nigeria, never paid rent for three months and through a friend promised to send rent money although it never came..EVER.
The agent served an abandonment notice / section 8 and told me I can now legally get the flat cleared of all items..the agent changed the locks.
I had the flat cleared and cleaned and thought that was that.
The tenant has now returned from Nigeria, paid the rent and wants the flat plus her stuff..shush is now in the local tip…what repercussions can I expect..or is the problem belonging to the agent?
I am afraid you are in trouble! Your tenant will probably be entitled to bring a claim against you for unlawful eviction and for the value of her goods that you destroyed. (The fact that an abandonment notice was put on the door will not help – although possibly a defence of implied surrender may.)
Plus you are vulnerable to prosecution from the Council as unlawful eviction is a criminal offence.
The fact that a tenant has failed to pay rent and has gone abroad does NOT entitle you as of right to go in and change the locks! The ONLY safe way to do this is after obtaining a court order for possession and using the court bailiffs or sherifs.
Even then, that does not entitle you to throw away the tenant’s possessions. Read >> this post from Ben on the subject. You will find more guidance on dealing with absent tenants >> here.
Your only excuse (apart from the implied surrender one – which will be difficult as she left her stuff in the property) is that your agent told you it was the thing to do. Legally you are still liable, as landlords are liable for the things done by agents on their behalf. So you will not be able to use this as a defence to any claim made by your tenant.
However you MAY then be able to claim back from the agent any compensation you are ordered to pay to the tenant.
Oh if only I had a pound for every one of these I’ve dealt with.
My suspicion is that the tenant set this up.
Tessa is right, abandonment cases are tricky and you can end up being accused of illegal eviction and destroying the goods. Having said that if the tenant came to me screaming blue murder I would be very reluctant to take action.
There are procedures for landlords dealing with abandoned goods under Schedule 1 of the Torts (Interference with Goods) Act 1977. First off I would want to see if the landlord had followed them before deciding which way to play it.
Not sure I agree about the implied surrender though Tessa, as surrender is a 2 way street, there has to be an act of surrender and an act of acceptance. Therein lies the problem.
Was there evidence in the property of an intention to return at some point? If belongings were left I would suggest that there was.
I do sympathise Peter, abandonment cases are really tricky to clarify but Tessa is right you have left yourself wide open, albeit my guess is you may have been set up
I don’t actually think implied surrender would work Ben (because she left all her stuff behind), but I mentioned it for completeness.
You hear of tenants setting landlords up so they can make a killing in compensation claims for unlawful eviction but I have to say I have never come across one in real life – if this is indeed the case, then you are in problems Peter.
What landlords need to remember is – the fact that a tenant has gone off to Nigeria doesn’t mean she won’t come back again! And want her flat back …
Another thought occurred to me. Tessa what would the law of agency say about the agent’s role in this? As a TRO I would want to know how the decision came about. Did the agent advise the landlord about how to deal with it or did the landlord specifically instruct the agent? Or is it irrelevant whose idea it was? Would the agent be under a fiduciary duty to advise the landlord they were going down the wrong road?
So far as any claim by the tenant is concerned, whether the landlord or the tenant did it is irrelevant – the tenant claims against the landlord who is bound by what his agent did.
So far as the landlord and the agent are concerned, if the agent gave bad advice then he is liable to the landlord and the landlord can seek to pass on any loss he suffers as a result of the bad advice.
Those refer to civil claims.
So far as a criminal case is concerned, I don’t know. I don’t do Magistrates prosecutions – what do readers think? Would the fact that the landlord was just doing what his agent advised let him off the hook?
I do criminal prosecutions and for me it would get him off the hook, plus I would do a pretty pressing interview of the tenant to find out what she was playing at because if it goes to trial I know that what the landlord’s defence barristers would do and I wouldnt want to waste public money and time on a dubious cause
But if the tenant is setting him up, she will be looking to bring a civil claim – and the fact that it was the agent won’t help him there.
However if the Judge suspects it is a set up he may be niggardly with the damages.
Oh for sure. If the tenant is scamming it you can bet your life it’s a civil claim she is after, not a criminal one. as you say, you can only hope in such an event that the judge sees through it.
It makes a case for something I always stress. When signing up a tenant get an agreed contact written into the agreement, so that in the event of questions over abandonment and what to do with goods left you can contact them before disposal and have at least some form of protection if things blow up, showing you did your best to make contact with the tenant before taking action. I know it’s not cast iron protection but it could help mitigate things
Tessa wrote “The ONLY safe way to do this is after obtaining a court order for possession”
How would this stand if T had gone to Nigeria in month 11 of a 12 month fixed term? No statutory periodic tenancy would have arisen at the end of the fixed term, so there would be no tenancy in place.
Aside from that, this is a risk that affects hundreds of landlords a year, and with 71% of them being one-property landlords, they can ill afford to have a property empty for the 5 months the court process could take. It is no wonder so many take the risk – re-enter the property and let it to someone who will pay the rent.
Yes, it is a question of risk assessment. I discuss the things you need to take into account on my post here http://www.landlordlawblog.co.uk/2012/07/19/four-essential-things-for-landlords-to-check-if-a-tenant-vacates-without-warning/
Often it will be OK for a landlord to change the locks. But it is still always a risk. The landlord has to decide whether it is a risk he is prepared to take.
This is a real problem, as often people do return to their home country without first paying their depts, and decide that it is too costly to take there belonging with them.
No legal systems will every recover the costs of formal eviction from them where the home county is somewhere like Nigeria, even when the home county is in the EU, the costs of enforcing a judgment as unlikely to be worth it.
However refusing to rent to anyone that is not established in the UK including having relatives that own their own home in the UK is not politically correct.
“So far as a criminal case is concerned, I don’t know. I don’t do Magistrates prosecutions – what do readers think? Would the fact that the landlord was just doing what his agent advised let him off the hook?”
I don’t think the agent’s role is relevant in terms of a defence for the landlord (although the agent may himself also be guilty of an offence under PEA1977 if he was the one to change the locks). Letting agents are not qualified legal professionals (nor need they possess any qualifications whatsoever) and the landlord is ultimately responsible for his actions.
What is relevant is whether the landlord has a defence under s.1 PEA1977, that he had reasonable cause to believe that the occupier had ceased to reside. If the tenant has left numerous belongings at the property, this may seriously undermine such a defence.
The simple solution for a landlord in this situation is to obtain a possession order. A genuinely absent tenant will not defend the application.