16 October 2020
Has your rental property been abandoned? Securing possession without the need for a court order
With the backlog of court possession proceedings delaying landlords from securing vacant possession of residential properties, landlords are looking for alternative options to help them secure possession, to speed up the process and to allow them to get their investment rental property back on the market to secure income from paying tenants. Part 3 of the Housing and Planning Act 2016 (“the HPA 2016”) sets out a procedure that a landlord may follow to recover possession of a property let under an AST which has been abandoned, without the need for a court order.
The property needs to have been abandoned for this process to become an option and therefore this may not apply in the majority of cases – it is often the case that the tenant remains situated in the property beyond the expiry of the notice served, not paying rent and the tenant may, in applicable situations, have been advised by the Local Authority to wait to be ‘forcibly’ removed before they will be eligible for social housing (see our rent article on this subject). However, where a landlord assesses that the tenant may have left the property abandoned, this method under the HPA 2016 provides an eight week process to efficiently secure possession without the need for a court order; a process that at this moment in time could take in excess of six months.
Of course, the argument will be that if the tenant has abandoned the property why not simply change the locks? The Protection From Eviction Act 1977 provides that it is a crime for a landlord, or a landlord’s agent, to evict a tenant without serving a valid notice first and following a proper legal process, and therefore by taking the step of changing the locks, if the property has not been abandoned, a landlord may face a criminal action as a result – something most landlords are keen to avoid. To ensure that there is no exposure in this regard, the landlord should either seek a court order to secure possession or alternatively, where applicable, follow the process under the HPA 2016.
Having made an assessment that the property has been abandoned, section 57 of the HPA 2016 provides that a private landlord may give a tenant notice bringing the tenancy to an end, if all of the following apply:
- the tenancy relates to premises in England;
- rent has not been paid (in accordance with section 58); and
- the landlord has given a series of warning notices as required by section 59 and no tenant, named occupier or deposit payer has responded in writing to any of those warning notices before the date specified in the warning notices (a named occupier is a person permitted under the tenancy to live at the premises and a deposit payer is a person who paid a tenancy deposit on behalf of the tenant).
Three notices have to be served on the tenant and if no response is received to those notices, the landlord can then secure possession of the property. The first two warning notices need to be sent to the tenant directly, but the third needs to be affixed to the property in a conspicuous position – i.e. attached to the front door. Each notice must explain that the landlord believes the property to have been abandoned, that the tenant must respond in writing before a specified date if the premises have not been abandoned and that the landlord proposes to bring the tenancy to an end if the tenant does not respond in writing before the date provided. In respect of this date, the date provided must be after the end of the period of 8 weeks beginning on the day on which the first notice is given.
The first notice can be given at any time. The second notice must be given at least 2 weeks, and no more than 4 weeks, after the first warning notice. The third warning notice must be given before the period of 5 days ending with the date specified in the warning notices – the total 8 week deadline. The process will still take 8 weeks, but if the property has been abandoned, then this method provides landlords with a quicker course of action than pursuing possession through the court.
Of course, there is no guarantee that the property has been abandoned and if the tenant makes contact, and therefore the property is considered not to be abandoned, that will bring about the end to this procedure. However, on the basis that there was sufficient evidence to warrant starting the procedure in the first place, if the tenant does make contact to confirm that the property has not been abandoned, then at that time, it may provide a perfect opportunity to engage with the tenant and see if a settlement can be agreed whereby vacant possession is provided.
Landlords need to note that the tenant can apply for their tenancy to be reinstated if they had a good reason for failing to respond to the warning notices. The tenant may apply to the County Court within six months of the day on which the notice under section 57 is given. If the County Court finds that the tenant had a good reason for not responding to the warning notices, the court may make any order it thinks fit for the purpose of reinstating the tenancy. There is therefore a risk, but if a landlord is confident the property has been abandoned, the landlord may assess this as an acceptable risk.
The property disputes team at B P Collins can advise on whether this alternative process to securing possession is applicable and the criteria has been satisfied. The team can navigate and guide you through the process, or alternatively if you are a tenant who has been served with an abandonment notice provide assistance on how to recover possession.