This is in some ways unfair on landlords.
Here is a tenant living in the landlord’s property and paying no rent.
The landlord, in the meantime, still has to pay the mortgage and other expenses on the property, is responsible for keeping it in repair, and cannot repossess without getting a court order. Which can take anything between six months to a year (sometimes more).
Landlords are fairly unique in that they are forced to continue providing a service when the customer (in this case the tenant) is failing to pay for it.
- Restaurants are not expected to carry on providing meals to people who don’t pay
- Shops are not forced to provide food to customers free of charge (however hungry they are)
- You cannot use the gym if you do not pay your gym membership
- You cannot get on the plane if you don’t have a ticket
Landlords, on the other hand, sometimes have to carry on housing tenants for free, sometimes for months on end, AND are still responsible for doing repair work. If they try to evict the tenant without getting a court possession order first they are committing a criminal offence.
A landlord’s lien?
So landlords may feel entitled to go in and take or hang on to their tenant’s possessions when they leave, saying that they can’t have them back until they pay up.
However, this is NOT allowed. Not to sell, nor to hold as security. The car, the television set, the computer – they belong to the tenant, and the landlord has no rights over them. If he takes them and sells them, this is both a civil wrong and a criminal offence.
About liens
There are certain situations in law where someone is entitled to a ‘lien‘ over someone else’s property. This means that they are entitled to hang on to it until they get paid.
- Hotel owners have a lien over guests luggage.
- Agents (including letting agents) have a lien over their principal’s property if they don’t get paid their commission, and
- Solicitors have a lien over clients’ paperwork.
- There are also liens, I believe, in aviation and maritime law.
However, for residential tenancies, there is no ‘landlord’s lien’, no matter how much rent the tenant may owe. Unfair maybe but true.
The only people who are legally entitled to seize and subsequently sell, a tenant’s possessions, is a County Court Bailiff or High Court Sheriff, acting under a court order.
And finally
It is arguable that if a tenant has serious rent arrears and the landlord takes a tenant’s possessions, the tenant might find it difficult to recover them through the courts, as the landlord could counterclaim for his rent arrears and seek to offset any damages awarded to the tenant against the rent arrears owed to him.
This might work, but it would depend on what the retained items were. I suspect that the Judge would be hostile.
Does anyone have any examples of this happening?
For what it’s worth, the complete abolition of the common-law right of the landlord to levy distress for rent was only accomplished on 6 April 2014, when section 71 of Tribunals, Courts and Enforcement Act 2007 was brought into effect. Before that date local authority landlords were, I think, technically still able to do so – not that they ever really did. The belongings of council tenants tend not to be worth very much on the open market.
And, of course, local authorities have duties in respect of belongings left behind or found in their properties under s41of the Local Government (Miscellaneous Provisions) Act 1982. Under that provision left behind belongings can vest in the local authority after six months but even if the goods were worth something there’s no obligation on the local authority to use the proceeds of sale against the rent arrears debt that the tenant/ex-tenant might owe.