Here is a question to the fast track blog clinic from Richard (not his real name) who is a landlord.
I have a tenant who was sent to jail for 12 months on the 22nd of March 2018.
His assured shorthold tenancy runs out on the 29 of June 2018. I’m a Rent Smart Wales licenced landlord.
He has a room in a registered HMO. His sister has cleared his room of his personal belongings.
Is my best course of action to serve a section 21 to get the room back, or would you recommend a different course of action?
As you are aware, the fact that someone has been sent to jail does not of itself end the tenancy.
One way is to bring proceedings for possession, but this may not be necessary.
- You may be able to agree an express surrender with the tenant or
- You may be able to treat his actions via his sister as an ‘implied offer to surrender’
An actual surrender agreement would be best. Can you contact the sister and ask her what the tenant wants? Point out that he is currently still a tenant and therefore liable for the rent but if her brother agrees in writing to give up the tenancy then you will re-let the property and end his liability.
If she can get a letter from him confirming this, or sign a letter you provide, then this will resolve the matter.
Implied surrender is where the actions of the tenant are inconsistent with an intention to continue with the tenancy – this is deemed as an implied offer to surrender which you can ‘accept’ by going in and changing the locks.
There are four main indicators of this:
- Not living at the property
- Not paying rent
- Removal of all personal possessions and
- Returning the keys
You tell us your tenant is no longer living there and his representative, his sister, has removed his possessions. But is he in arrears of rent, and critically – did she return the keys? She must have had them to get in and clear his stuff.
If the rent is paid up, then you should not do anything.
Otherwise, it may be worth taking a chance (although contact the sister, if you can, and ask her for the keys). It is arguable that a relative just clearing the room may be sufficient to imply surrender where the tenant is going to be in jail until long after the end of the fixed term.
After all – what is the likelihood of the tenant coming out of jail in 12 months time and bringing a claim against you for unlawful eviction? Bearing in mind that you would have the right to offset any rent arrears against any award for compensation that might be made.
These are the things you need to consider and weigh up in your mind before making a decision about what to do.