Abandoned Tenancies and Unlawful Eviction

Sometimes a tenant will simply disappear during, or at the end of, a tenancy, often leaving rent arrears.  This article aims to assist practitioners understand some of the rules concerning surrender and abandonment and how landlords can secure and retake possession of abandoned property in such situations.  The Law Commission are responding to calls from landlords for a legal code relating to abandonment but the law in this area remains unsatisfactory and vague.

Case example
A landlord calls at his property to collect rent which had been unpaid over two months.  The house appeared to be deserted, and the back door to the property was open and the lock damaged.  Inside, there was no sign of the tenant but he had left a few old clothes in the wardrobe and some tins of food in the kitchen.  The tenant had left no forwarding address and the landlord suspects that the tenant has gone.

Many landlords, facing the situation described in the case example above, would treat the rent arrears as irrecoverable, change the locks and try and get the property cleaned and re-let as soon as possible.  Yet, despite being already seriously out-of-pocket, the landlord who wrongly interprets a tenant's actions as surrender may find himself accused of committing the offence of unlawful eviction.

A Birmingham landlord facing a similar situation did just this in 1992.  His tenant, however, returned after being excluded from the property for three days, obtained a mandatory injunction and was able to return to the dwelling. The landlord was also fined £1,600 for evicting his tenant illegally¹.

Surrender and abandonment

Most tenants enjoy statutory protection; they are entitled to remain in possession of a dwelling unless the tenancy is ended by order of the court, or by surrender or other action on the part of the tenant².  Surrender may operate when the tenant has abandoned the premises.

The landlord may accept the surrender by changing the locks and re-letting the premises, yet great care must be taken; the act of surrender must be unequivocal. Belief must be both genuine and reasonable before the landlord takes back the property.  Clearly, if there is any significant doubt, the safest course is for the landlord to apply to the court for a possession order.In law, a tenancy is brought to an end by surrender when the tenant agrees to yield up possession of the premises, and the landlord accepts back the premises.

Express surrender
Surrender may be expressly agreed - this can be done for short leases (less than three years) simply by a written document or a "declaration of surrender".  This is a written document between the parties confirming that the tenant is yielding up the property.  Where the landlord is able to trace and contact the departed tenant, it is a good precaution to ask the tenant to sign a declaration of surrender if there is any doubt.

Liability to pay rent
The tenant's liability to pay rent will continue until the landlord accepts the surrender (subject to the natural expiry of the tenancy agreement) and this principle may assist the landlord in obtaining express surrender from a departed tenant who may be motivated to return keys and formally surrender the tenancy rather than incur further debt.

Joint tenancies and joint occupancy
If the tenancy is a joint tenancy, all the joint tenants must agree to the surrender for it to be effective³.  Where the tenants owe a substantial amount of rent and one of the joint tenants has been absent for a long period it may be possible to infer that he has given an authority to the others to surrender on behalf of them all⁴. But the general rule is that one of two or more tenants cannot surrender a tenancy without the agreement of the other party or parties.

Remaining occupiers
Occasionally, the tenant abandons leaving a partner remaining in occupation who has no formal rights of occupation (i.e. they were not expressly authorised to occupy by the landlord and do not appear on the tenancy agreement).  Whether this occupier is allowed to remain in occupation, and gains protection against eviction will depend on whether s/he holds a tenancy, a licence or remains simply as trespasser.  If the landlord (or his agent) has accepted rent directly from the occupier, then a tenancy may be implied by these actions, thereby granting them protection against eviction.

By contrast, an occupier who has been staying, for example, with the tenant, and with the landlord's permission is a 'bare licencee'.  A person will still be a bare licencee even if a financial contribution is made provided that there is no intention to create binding legal relations between the parties⁵.  The same person, living in the property without the landlord's permission, is technically a trespasser.

A fundamental feature of the bare licence is that the licensor can revoke the licence at any time and so a person occupying a house or room under a bare licence has only a minimum of protection against eviction.  Once permission is withdrawn, the licensee has 'reasonable time' to leave the premises.  Once that period has expired, he or she becomes a trespasser.  Determining what is 'reasonable' will depend on individual circumstances and factors - including whether the occupier is prepared to pay mesne profits in continuation of the occupation, In typical cases of short term occupation, then one or two weeks should be considered as reasonable, although in one case where a licencee stayed for over 26 years, 12 months was held to be a reasonable period.⁶

Surprisingly, even trespassers have some rights - it is unlawful to evict anyone from land using violence or physical force.  Other than this, the trespasser has no security and is liable to immediate eviction.  The landlord may enter and evict trespassers or their belongings peaceably, and change locks.  However, if a trespasser opposes entry, it is not lawful to use or threaten physical force to secure entry (s.6(1),Criminal Law Act 1977) and it would be necessary to apply to the court for  possession order.

Evidence of surrender

When faced with a tenant who appears to have abandoned a property, and has disappeared without trace, the landlord will need to make sufficient enquiries so that he can prove that he believed and had reasonable cause to believe that the tenant had ceased to reside in the property.  It would not be safe for the landlord to always assume that the tenant has abandoned the tenancy, it is possible that the tenant could be in hospital, in prison for a short period, or on an extended holiday.

The outcome hinges around the issue of 'unequivocal conduct'. For surrender to take place or be implied by the actions of the parties, the conduct must be unequivocal in showing that the tenant has given up occupation.  'Unequivocal conduct' means conduct on the part of both the landlord and the tenant which was inconsistent with the continuance of a tenancy⁷.  
There are no finite rules; evidence in the form of tenant's belongings remaining (or absence of), the tenant's conversations with neighbours, or other regular callers to the property, can all contribute to give the landlord reasonable cause to believe that the tenant has ceased to reside there.

There are many factors that may point to the fact that a tenancy has been surrendered or abandoned.  Any evidence collected should be carefully documented in case the action has to be defended.  Some of the factors are quite conclusive (e.g. return of keys) whilst others will hold less weight.

Personal effects
The presence of the tenant's belongings or personal effects is probably one of the most important indicators of continuing occupation.  An occupier would normally store personal effects (clothes, furniture etc.) at the property.  Where a tenant had removed all personal effects at the end of a tenancy, this would generally constitute good evidence that an occupier has ceased to reside.

Keys
Where the keys are returned by the tenant,  and the landlord accepts these back with a view to ending the tenancy, then the tenancy will normally come to an end by surrender.   Such an action does not, however, absolve the tenant from liability for rent due until the property is relet⁸.

Services
The presence or absence of the various services supplying the property can be very useful pointers as to whether the property is occupied:
Mail - is there unopened mail at the property.  Is it being collected?
Telephone - has the telephone service been terminated?
Electricity - has the local supply company been asked to terminate the supply?
The landlord could also rely upon evidence given by milkman and other delivery services who might have been informed by the previous occupiers that they were leaving the property and that no further deliveries were required.

One useful source of evidence of occupation (or lack of occupation) is that modern households typically generate significant amounts of refuse.  Checking that the refuse bins have not been used between several successive visits to a property are a good indicator of whether a property is being occupied.

Neighbours and other tenants
Neighbours and other tenants (in a property in multiple occupation) are often well aware of the movements of adjacent occupiers and landlords can rely on evidence gathered from such sources.  A neighbour may have been on good terms with the departed tenants and have knowledge of their whereabouts (in which case, it may be possible to verify with the tenant directly that he or she has ceased to reside at the property).

Rent
The non-payment of rent is not evidence of abandonment if this is the main  indicator being relied upon.  The courts have generally only deemed abandonment to be conclusive on this factor alone when a tenant had disappeared and was in rent arrears for over six months.

Housing benefit
Where rent is paid by Housing Benefit, they will often write to inform the landlord or agent that the tenant is now living at another address.  On the face of it, this also seems sufficient evidence for the landlord to take possession (unless, of course, there are contrary indications).

Main residence
A tenant only enjoys full statutory protection whilst he occupies the property as his main or principal home⁹.  Clear evidence that a tenant has moved to another property which he now occupies as his principal residence is a compelling indication that the tenant has surrendered the previous tenancy.

Abandonment clauses

One useful safeguard is for the landlord to have included a suitable clause in the tenancy agreement related to abandonment to the effect that if the tenant shall have left the property unoccupied for say, 28 days, without having given any explanation of his whereabouts, the landlord can re-enter on the assumption that the property has been abandoned.
It should, however, be stressed that great care should still be exercised when relying on such clauses - such clauses are certainly not watertight in their own right (especially if it subsequently transpires that the tenant is still in occupation).  A landlord should still have reasonable cause to believe that the tenant has moved away permanently.

Right to enter and secure

Where an abandoned property has been left unsecured (i.e. doors left unlocked) or there is evidence of physical damage to the property which renders it vulnerable to trespass or criminal activity, it would be reasonable for the landlord to take steps to secure the property, if necessary by changing the locks¹⁰.  However, whilst the landlord is unsure as to whether or not the tenant is still in occupation, the landlord should ensure that the tenant is informed in writing about the action taken and the reasons for it and is provided with directions on how to gain access to the property if the tenant does not have alternative means of access.  In this case, the landlord becomes an agent of necessity.  A suitable notice should be affixed to the door with information as to how the tenant could obtain new keys.

Unlawful eviction

Landlords should be familiar with the legal position regarding unlawful eviction and harassment whenever undertaking any possession action.  Under the Protection from Eviction Act 1977 there are steep fines and even jail sentences for landlords who ignore tenants' rights to peaceful occupation.  That said, there are only about 20 or so serious unlawful eviction cases which are followed up in the courts each year, and the number is dropping.  Those cases that do appear are amongst the worst offences, so landlords who act reasonably have little to fear.

The offence of unlawful eviction is committed by a person who unlawfully deprives a residential occupier of all or part of the premises or attempts to do so¹¹. The court has extensive powers to award damages in tort under the Protection from Eviction Act 1977.  More substantial punitive damages can also be awarded under further powers granted by sections 27 & 28 of the Housing Act 1988.  Damages for illegal eviction in excess of £30,000 have been awarded in recent cases under these provisions.  These serve as a warning to landlords to never try and obtain possession, other than by a court order, unless there has been beyond doubt, unequivocal surrender by the tenant of the premises.

Defences
There is a defence if the defendant can prove that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises¹².   A mere temporary absence (e.g. on holiday) would not constitute ceasing to reside. 
The second defence open to the landlord is that he may offer to re-instate the tenant in the premises from which he has been evicted.  Provided that the former tenant is re-instated before the hearing is finally concluded, the landlord is relieved from liability.  If the offer is made before the proceedings are commenced and the tenant refuses unreasonably, then damages may be reduced¹³.  Not surprisingly, the effect of this legislation has been for the evicted tenant not to accept re-instatement in many cases.

Harassment

Sections 1(3) and section 1(3)a of the Protection from Eviction Act 1977 create the criminal offences of harassment.  The law makes it an offence to:

• do acts likely to interfere with the peace or comfort of a tenant or anyone living with him; or
• persistently withdraw or withold services for which the tenant has a reasonable need to live in the premises as a home.

Common examples of harassment are where landlords make abusive remarks or threats to a tenant - especially where they encourage the tenant to leave.  Equally, withdrawal of services would include disconnection of the electricity supply from the property, which would constitute an offence under these parts of the Act.  Landlords are not the only culprits; agents and even neighbours can also be prosecuted for harassment¹⁴.
There is a defence to the offence if the defendant can prove he had reasonable grounds for doing the acts or withdrawing the services in question.

Personal effects

Tenants, when they abandon a tenancy, occasionally leave some personal effects at the property. 
This is problematic for two reasons; firstly it could falsely suggest that the tenant is still residing, or may return, making it more difficult to prove abandonment.
Secondly, the landlord or his agent becomes the custodian, or in legal terms, the bailor of this property and must exercise reasonable care in their storage and disposal.  

Reasonable notice should be given before they are disposed of, or perhaps sold to meet storage costs and any rent arrears left behind.

Taking possession

If the landlord is satisfied that the property has been abandoned then he may take back possession of the property without the need for a possession order from the court. 
The National Landlord's Association (previously the SLA) recommend a useful procedure which involves putting a written notice on the front door or main entrance to the property, giving notice of the landlord's intentions to take back the property (see example notice in inset box on page 17).  This procedure helps ensure that a property has been genuinely abandoned before it is taken back by the landlord and is likely to satisfy the 'reasonable cause' defence in the Protection from Eviction legislation in the majority of cases.

Summary

The law provides little support to the landlord whose tenant abandons the property and the landlord or agent needs to act with great care.   Whatever action is taken it will be important to keep documentary notes supporting these measures.
Where there is reasonable doubt as to whether a tenant has permanently vacated the premises and it is impossible to obtain express surrender or reasonable evidence of abandonment, the safest solution is to terminate the tenancy (by issuing formal notice) and to commence possession proceedings.

 

References
1.  O'Reilly v Webb, 1992, Legal Action 12, Birmingham CC.
2.  Housing Act 1988, s.5(3).
3.  Leek and Moorlands Building Society v Clark [1952] 2 QB 788
4.  Preston Borough Council v Fairclough (1982) 8 HLR 70 CA
5.  Hannaford v Selby, 1976
6.  E & L Berg Homes Ltd v Gray (1980) 253 EG 473
7.  Chamberlain v Scalley (1994) 26 HLR 26, CA.
8.  Laine and Mitchell v Cadwallader & Cadwallader (2001) 33 HLR 397
9.  Housing Act 1988, s.1.
10.  Dept. of Environment advice, 1996
11.  Protection from Eviction Act 1977, s1(2).
12.  Protection from Eviction Act 1977, s1(2).
13.   Housing Act 1988, s. 27(6).
NB.  This provision only provides a defence to the damages specified in ss27 & 28 of the Act.  Damages under PEA 1977 can still be brought.

14.  Protection from Harassment Act 1997, s.2