If it is clear that a tenant has surrendered or given up the tenancy, the landlord is entitled to possession (section 5(3), Housing Act 1988). Equally, if a tenant holding under a periodic tenancy has served a valid notice to quit on the landlord, this will act to bring the tenancy to an end at the expiry of the notice.
Where the act of surrender is less obvious or equivocal then care needs to be taken before the landlord takes back or re-lets the property. Where a landlord takes possession and it turns out that the tenant is still occupying the property, the landlord runs the risk of proceedings for unlawful eviction.
Surrender can take place expressly (i.e. by way of a written document or ‘declaration of surrender’ signed by the tenant), or by operation of the law (i.e. implied by the conduct of the parties to a tenancy).
Surrender by operation of the law
The essence of a surrender by operation of law is the consensual giving up of possession of the premises to the landlord by the tenant. It is normally important that the landlord does some act in accepting the surrender. Thus where the tenant returns the keys to the landlord with the intention of giving up possession of the premises and the landlord accepts them with the intention of accepting possession, there is surrender by operation of law. Equally, surrender can take place (of the old tenancy) when the landlord and tenant enter into a new agreement during the currency of an existing agreement.
For a surrender by operation of law to be implied from the conduct of the parties to a tenancy, their conduct has to be unequivocal, such as returning the keys to the landlord, or removing from the premises signs of occupation, including furniture, belongings and any family or friends – or animals – who were living with him. It is important that the actions of both parties show that they consider the tenancy to be at an end.
Finally, surrender may also 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. 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 tenancy (Chamberlain v Scalley, 1992). Much will clearly depend on the individual facts in a particular situation. Faced with a tenant who appears to have abandoned a property, 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.
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 must all contribute to give the landlord reasonable cause to believe that the tenant has ceased to reside there. These are discussed in more detail below.
Belief must be both genuine and reasonable before the landlord takes back the property. Unless the evidence of abandonment is unequivocal, any landlord doing so takes a risk. Proceedings for unlawful eviction could be brought by the displaced tenant unless the landlord can be certain that the tenant has ceased to reside in the premises. Where there is reasonable doubt as to whether a tenant has permanently vacated the premises and it is impossible to obtain express surrender, the safest solution is to terminate the tenancy by some other method, such as notice requiring possession (if applicable) and commence possession proceedings.
Notice of Abandoned Property
Where enquiries lead the landlord to believe that the property has been abandoned and the tenant has ceased to reside in the premises, it is important to make any necessary enquiries and take appropriate precautions to verify this beyond reasonable doubt.
Once completed, it is a sensible precaution to leave a notice at the property alerting any occupants of the landlord’s intention to take back possession of the property. This is not an officially prescribed notice but the action is useful nonetheless since it provides further evidence that the landlord has taken all possible steps to ascertain the whereabouts of the tenant and inform any occupier of his intention to re-enter the property.
A written notice can be put on the tenant’s door headed ‘Notice of Intention to take Over a Flat/House‘.
It should be prominently displayed and contain the following information:
- a declaration by the landlord stating his belief that the property has been abandoned – include dates
- the landlord’s name and address
- the name of the tenant(s) and the address of the property
- if affixed in the presence of a witness, their name should be added i.e. This notice affixed in the presence of ……..on (date)
- a paragraph asking anyone who knows the whereabouts of the tenant(s) to contact the landlord
- a paragraph stating that if the tenant(s) does not contact the landlords within specific period of time, it will be assumed that the tenant has surrendered the tenancy
- advising the tenant to seek legal advice i.e. “You are advised to seek legal advice immediately as you are in danger of losing your home. “
If the fixing of the notice was witnessed, that person can swear a short affidavit to that effect as evidence where such information needs to be presented in court. Alternatively, take photographs of the notice (ideally with a date recording facility) displayed at the premises.
It has also been suggested that the notice should refer to the locks on the property being changed, pointing out that it may be unlawful for anyone to try to break back in, but to contact the landlord or agent if the tenants wish to reclaim occupancy. The fact that the tenants have not contacted the landlord is then further evidence of abandonment.