Abandoned properties: clarity for landlords

The reason for abandonment is, more often than not, rent arrears. Many tenants will attempt to avoid paying rent lawfully due under their assured shorthold tenancy by vacating the property without notifying their landlord.

This leaves a landlord in an uncertain and potentially costly situation because the tenant still has a right to occupy the property until the tenancy is terminated, either by court order or agreement between the parties. 

Historically, where a landlord had all reasonable belief that a tenant had abandoned their property, they were faced with having to apply to the court for a possession order or to place an abandonment notice at the property and then re-secure it.

The latter option posed a risk for the landlord, as the tenant could return at any stage and assert their right to occupy. Furthermore, the tenant could sue the landlord for damages for unlawful eviction and face potential criminal prosecution. 

Section 57 of The Housing and Planning Act 2016 (“the Act”), enacted on the 12th May 2016, has brought clarity for private landlords faced with an abandoned property and rent arrears. 

It provides as follows:

A private landlord may give a tenant a notice bringing an assured shorthold tenancy to an end on the day on which the notice is given if— (a) the tenancy relates to premises in England, (b) the unpaid rent condition is met, (c) the landlord has given the warning notices required by section 59, and (d) no tenant, named occupier or deposit payer has responded in writing to any of those notices before the date specified in the warning notices.

The process, timings and form of warning notices which must be given in order to successfully rely upon s.57 are set out within s.59 of the Act. 

In summary, s.59 states that a landlord must serve three warning notices. The first two warning notices must be served on the tenant, any named occupiers, and the deposit payer. The third notice must be displayed in a prominent position at the property suspected to have been abandoned. 

Section 60 of the Act further provides that a tenant may apply to the court for reinstatement of their tenancy if they have a good reason for failing to respond to the warning notices.

However, such an application may not be made after six months following termination of the tenancy by notice under s.57. Whilst this clarification is useful, in many, if not most, cases, it will still be the most appropriate course of action for a landlord to obtain a possession order. 

However, the clarity brought by the Act will be of use in certain circumstances. 

Landlords must still consider their position very carefully when considering taking possession without a court order, as they may still face prosecution and/or a damages claim if a tenant is evicted unlawfully.

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