Are these former tenants liable to prosecution for trespass?

Here is a question to the blog clinic from Teresa who is a landlord

A tenant vacates their property, (and leaves keys in property) weeks before the end of their tenancy and emails to say that they’ve left, insist on their deposit being returned and doesn’t pay the last two months rent owing – do they have the right to let themselves into the property when a new tenant has moved in?

The property was advertised, (to minimise the landlord’s loss), a nice tenant was found. The new tenant was completely shocked to find that when she came home from work the previous tenants has let themselves in and taken a Virgin router and then left the keys through the letterbox.

The police tell us that this is a not a criminal case and should only be treated as a civil trespass. Do you agree?

Answer

The Police are notorious for not wanting to get involved in ‘civil matters’ – even if the matter is a criminal offence under landlord and tenant law.

Although I think these tenants’ behaviour is outrageous, I think the Police stance is probably right here.

Tenants certainly do not have a right to let themselves into a property once it is let to subsequent tenants – but were these tenants aware that this had been done?

For a crime to take place there needs to be what lawyers call ‘mens rea’, a guilty mind. Here it is arguable that they are simply collecting their own property. Its not as if they stole anything.

However I think you should have dealt with this situation differently.

When tenants move out early

When a tenant signs up for a tenancy they are entering into a legally binding agreement to pay rent for the period of the tenancy. They are not entitled to just up and leave whenever they want.  For example see this case here.

So you would have been perfectly entitled to refuse to accept a surrender of the property when they left, and to have required them to continue paying rent for the final months of the tenancy.

This is something you could quite legally have deducted from their deposit (assuming your tenancy agreement clause permitted it – which most professionally drafted tenancy agreements would). Had the tenants objected and asked for adjudication, the adjudicators would almost certainly have agreed with you.

Dealing with the return of the keys

To be able to do this you should have written or emailed the tenants at the time they returned the keys saying that you did not accept a surrender of the property and that rent was still due from them. That in order to be helpful you would try to re-let the property but that they would remain liable for the rent until you had done so.

You should have then explained to them that you would not be returning the deposit until either after the end of the fixed term or  the property had been re-let (whichever came first) and that if the rent was not paid by them, you would be deducting it from their deposit.

During the period of time you were re-advertising the property I don’t think you could have really objected if the tenants had let themselves in to collect items left behind.

When the property was re-let

Once the property had been re-let, you should have notified the tenants and arranged for the balance of their deposit (if any) to be returned to them.

From that time on, the tenants would not have been entitled to enter the property as they would be aware that it had been re-let to another tenant.

However practically, I think a legal action for trespass, whether under the civil or the criminal law, would not have been worth the effort.

It is more important to ensure that the trespass does not happen in the first place. So making sure that ALL the keys are returned, and maybe changing the locks if it looks as if some have been retained. Had the locks been changed in this case, they would not have been able to get in.

For example your current tenant may have a claim against you for failing to do this if it was clear that not all the keys had been returned.

And finally

Although I do not think a prosecution against the former tenants in this case would have been justified, you would certainly be within your rights to pass the facts on, should they give your name as a referee when applying for a new property.