Here is a question to the blog clinic from Gerry (not his real name) who is a landlord:
My tenants have messaged me that they can’t afford to pay rent for the property. We still have 3 months left on the fixed 12 months fixed tenancy agreement.
They have left the property without any notice to me. The deposit security is with TDS and not enough to cover any rent or utility bill in full, cleaning etc.
As a landlord, I can’t readvertise as they still have the key and are the legal occupant in my opinion.
They are not going to pay the rent for the upcoming month of May 2020.
I don’t have their address (forwarding address)
I have contacted them with Whatsapp but no agreement has been reached in terms of rent payments and when shall they return the key? What should I do? I am a first-time accidental landlord.
Answer
Strictly speaking, tenants are liable for their rent on a month by month basis for the whole of the fixed term they have signed up for. Moving out of the property early will not change this and the tenants will remain liable.
However, practically, if they cannot afford to pay the rent it will not get paid. There is not a lot you can do about this as if someone has no money clearly they will not be able to pay you.
It is often best in these circumstances to accept that the tenancy is ended and move on.
Implied Surrender
The legal basis for ending a tenancy early when tenants move out is the doctrine of implied surrender.
If the conduct of the tenants is inconsistent with an intention to continue with the tenancy, the landlord can treat this as an ‘implied offer to surrender’ which can be ‘accepted’ by going in and changing the locks.
You have to be careful when doing this to be sure that the tenants really have moved out and have no intention of returning. This will normally be the case (as discussed in this post) if:
- They have not paid rent
- They have moved out all their possessions
- They have left the keys behind, and
- They have told you that they are leaving
If one or more of these are missing (as in your case the tenants have not returned the keys) you can still assume that this is an implied surrender situation if it is obvious that the tenants do not have any intention of returning.
I would suggest that you contact them and ask them if they have any intention of coming back to the property or if they have moved out permanently. If they reply that they have moved out, you will be able to change the locks.
I think you will probably be reasonably safe to do this even if they do not reply, so long as you allow a couple of weeks.
However, make sure you keep a record of everything you do and your reasons for doing it – just in case the tenants come back a couple of years later and claim that you evicted them unlawfully!
Re-letting the property
You then need to consider re-letting the property. This is a tricky situation just now and you may want to read the other articles you will find linked from the sidebar of this post on house moves and viewings during the COVID-19 lockdown.
If you do not have a current gas safety certificate, for example, you should not re-let to tenants as you would not in those circumstances be able to use the section 21 eviction process.
If you wanted to use the property to let to NHS staff free of charge (which would not create a tenancy as rent is an essential element of a tenancy) you may want to contact one of the services on this page.
A different approach might be to try and encourage them to come back. If they have had a significant reduction in income, they may well qualify for benefit to help them pay the rent. Alongside or separate to that, you could potentially discuss a temporary reduction in rent, payment break or some other sort of plan to keep the tenancy sustainable. It may be that you take the view that, given everything going on, it would be better to have someone in the property paying something than trying to find new tenants.