My tenants seem to have left – can I take possession without a possession order?

As a residential landlord you will know that it is a criminal offence to unlawfully evict a tenant and that the standard method is to apply to the Court for a Possession Order.

But what if the tenant has disappeared and you believe they have surrendered the property? Can you proceed to possession without a Possession Order? Lydia Anderson explains..

The Protection from Eviction Act 1977 makes it a criminal offence to evict a tenant from a property unlawfully, punishable with a fine and potential prison sentence.

The standard method to formally evict a tenant is to apply to the Court for a Possession Order. Should the tenants remain in the property at the expiry of that Possession Order, bailiffs can then enter the property and evict the tenant.

Landlords can be tempted to try to avoid the Possession Order process to save both time and money – particularly if they believe that the tenants have either surrendered or abandoned the property.

Surrender of a property

A landlord may believe that a tenant has ‘surrendered’ the property and thus there is no requirement to follow the above process. Indeed it is a defence to the criminal offence of unlawful eviction if a landlord has ‘reasonable cause to believe that the residential occupier had ceased to reside in the premises’.

How can you be sure though that the property has been surrendered?

If the tenant has vacated the property and taken their belongings, you may well be encouraged to believe that they have surrendered it, but what if they are in jail, in hospital or – more cheerily – on a long holiday?

Whatever the reason for their absence, if the tenant was to return to the property and find that the locks have been changed and they can’t get in, they will have a very strong case to claim unlawful eviction.

The strongest, and possibly only, indicator that the property has been surrendered is if the tenant gives you back the keys to the property (caution being taken where there is more than one set of keys).

Abandonment of a property

If you are unsure about claiming that a tenant has surrendered the property you can place an Abandonment Notice on the door of the property. This Notice needs to advise that the property has been deemed as abandoned and give a time – say five days – after which the locks will be changed if no contact is received.

The Notice will require the tenant to contact the Landlord within a set period of time, for example 14 days, for a new set of keys for the new locks. Once that period has lapsed, it is then possible to claim vacant possession.

Again extreme caution must be taken as claiming abandonment is still a grey area. Abandonment can only be assumed from the tenant leaving the property, taking their possessions and handing in the keys. However as surrender of the property is implied from the same actions, an Abandonment Notice may be unnecessary.

Lydia’s advice

If the tenant has any possible reason to argue a claim for unlawful eviction – such as possessions remaining in the property, rent being paid, mail being received at the address – the Landlord will remain at risk.

Without the return of the keys, amongst other indicators, the safest method to take possession of a property remains that of serving the relevant Notices, followed by obtaining a Possession Order from the Court.

Brady Solicitors – specialist legal advice for residential landlords

For help or advice with any legal query relating to landlord and tenant matters please contact the Brady Solicitors office and we’ll be pleased to talk you through your options.

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