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Abondonment Notice

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« on: November 13, 2019, 01:15:15 PM »

Hi Everyone,

I am a first time Landlord, of one property only.  Unfortunately, my tenant disappeared from December of last year but fortunately I had  insurance to cover this happening.  Almost a year now and still not got possession of my property, partly due to the Solicitors serving the wrong papers.  We are now nearing the final stages, and on expiry of the Section 8 an application will be sent to Court to take back possession of the property.  The Solicitors, however, advise "If the Tenant vacated without returning the keys you will need to follow the abandonment procedure. This includes a notice being placed on the front of the property."  From googling, I think this is wrong.  My understanding is that, if you make a formal application to Court for repossession, you do not need to post an Abandonment Notice outside the property, even if the tenant didn't return the keys; am I right?  My tenant didn't return the keys and has left, as far as I can tell, low-value possessions in the property, which brings me to my next question: the tenant's possessions!  Do I need to post a notice on the outside of the front door, advising I will dispose of his possessions in one calendar month after I take back property if he does not collect?  I don't see that this is necessary if I give one calendar month's notice, by post to his contact addresses, to collect possessions via my Letting Agency.  I say Letting Agency as, on taking back possession of my property, I will immediately change the locks.  Even if I didn't change the locks at that time, surely it would be illegal for the tenant to enter the property as it would be in my possession.  I do not want to place any kind of notice outside the property that would put it at risk of burglars/squatters.  I would appreciate your advices.  PS, I apologise if I cannot reply immediately to any response.  Many thanks.
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« Reply #1 on: November 13, 2019, 01:31:15 PM »

Believe your solicitors, not google.  If your solicitors give you the wrong advice, then they are accountable to the Law Society.  If I gave you the wrong advice and you followed it, then you wouldn't be able to hold me responsible at all.

On the basis that you're insured for this and therefore won't be out of pocket, you should follow your solicitor's advice exactly.

In law, strictly speaking you are not entitled to dispose of your tenant's possessions, but if he's abandoned them for more than twelve months, then you can take it to the bank that he's not coming back for them.  I'd just take them to the tip.  But you have solicitors, so get their advice and do as they say.
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« Reply #2 on: November 13, 2019, 02:11:41 PM »

Almost a year?

Are you kidding? The Tenant has not been seen for a year and you've received no rent (from the Tenant) for a year? The tenancy has ended! Research implied surrender - it's all about behaviours you can assess to imply someone has the intention of carrying on the tenancy, or not. Here - clearly not. You may not have keys and some tat may be in the property - but you've not seen the ex-Tenant for a year, you've not been able to contact them for a year and they've not paid rent for a year - an easily implied surrender!

I cannot be held responsible for any actions you may take based on my uneducated advice. ;-) Move on, 'cos it's time to groove on...
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« Reply #3 on: November 13, 2019, 02:47:38 PM »

Thank you, Mortimer and Hippogriff, for your replies. 

Mortimer, I am awaiting confirmation from the Insurers as to whether they will cover any risk from posting a notice outside the property.  I appreciate what you say about following the advice of the Solicitors but I am sorry to say that I don't have confidence in their handling of my case, plus they have been very lax in keeping me up to date with proceedings. 

Hippogriff, I agree with your thinking.  I am though in the hands of the Solcitiors and they appear to want to safeguard against the worst-case scenario, no matter how unlikely that is. 
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« Reply #4 on: November 13, 2019, 02:53:47 PM »

Follow your solicitor's advice, especially if said solicitor is the one your insurance is paying for / requiring you to use, as in that case not following the solicitor's advice will stop your insurance paying out & may incur you cost payable to the insurer. The solicitor also have PII, if they are negligent in their advice, you can sue them for losses.

Having wrote that... I'll echo HIPPOGRIFF's comment. Are you kidding me? Unless you have reason to suspect the tenant's in jail or hospital or something, i.e. not living there not by choice, I would have either risked an implied surrender or served a notice to quit if periodic ending the tenancy on the basis that the tenancy is no longer assured.

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« Reply #5 on: November 13, 2019, 03:02:45 PM »

Presumably the solicitors are being paid by the insurers? I suspect they want to safeguard against a lawyer's worst case scenario-not extracting every last penny they can squeeze out of a routine procedure.I had this happen once,posted the notice on the door, then after the advised time (weeks) I changed the lock and got new tenants in.I would never keep anyone's property for 12 months,and I don't think you are obliged to.Off to the tip.Can't believe you have wasted a year on this.
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« Reply #6 on: November 13, 2019, 04:07:02 PM »

Thank you, KTC and heavykarma, for your replies.

Yes, the Insurers are paying the solicitors they chose.  I agree that not following the advice of the Solicitors could make me liable for expenses.  The insurance was included in the package I received from the Letting Agency and the Letting Agent deals direct with the Solicitors and Insurers on my behalf.

I too feel that it should have been a routine procedure and should have been dealt with much quicker.  Perhaps progress was slow due to my Letting Agent having no experience of abandonment and repossession.  Also the Solicitors have been very slow in taking action, even when they were in the wrong.
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« Reply #7 on: November 14, 2019, 10:16:27 AM »

The insurance was included in the package I received from the Letting Agency and the Letting Agent deals direct with the Solicitors and Insurers on my behalf.

I read this sentence and then played the word-association game... I came up with "cabal"... I think my brain is wired wrong, though... what better words could be used?
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« Reply #8 on: November 14, 2019, 01:08:27 PM »

Whether the insurance premium is competitive aside, it doesn't really matter as long as the insurance is paying out as appears to be the case here.
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« Reply #9 on: November 14, 2019, 01:26:19 PM »

Thank you, Hippogriff and KTC,

Hippogriff, you might want to include the Vetting Agency in that mix as well.

KTC, yes, the Insurance Copany is paying out, thank goodness.   While it was tempting to sit back and collect payments, I preferred to chase the Solicitors (not that it made any difference) as I hated the thought of my property left in an abandoned mess for a prolonged period.
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« Reply #10 on: November 14, 2019, 02:23:22 PM »

Does your Insurance cover the bills? Surely you are being charged Council Tax now? Surely there's at least a standing charge for electricity and gas? My Council allows a property to be empty for a while (I think it's 6 months) where they charge 1x Council Tax... after that they want to charge a 50% premium too. What's your Council doing? Does the Insurance cover all of your potential outgoings while this drags on and on? If so... sit back, I guess... no more chasing, let them run around in circles like the Keystone Cops.

Oh, yeah... this could be the (to be fair - a) reason all our Insurance premiums are going up. A little bit of cream never hurt anyone, right?
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« Reply #11 on: November 14, 2019, 02:54:04 PM »

Hi Hippogriff,

As advised by my Letting Agent, "The tenant is responsible for all utilities until the eviction is complete as he is still liable as you have not yet gained vacant possession."  I was also advised the same by my Council with regard to Council Tax.

The Insurers will also pay 75% of the rent for the first 2 months after I take possession unless the property is tenanted in that period,.
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« Reply #12 on: November 14, 2019, 07:01:42 PM »

So they're going to end up paying for 13.5 months' rent and a truckload of legal advice?  That's a really good insurance product those lettings agents sold you.  Who's it with?
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« Reply #13 on: November 14, 2019, 08:51:49 PM »

I was also advised the same by my Council with regard to Council Tax.

I'm guessing this happened during a (long) fixed term then, and not during a statutory periodic (or a contractual periodic with less than six months initial term), as otherwise that position would be different. If the council is happy with the tenant being the liable party, I wouldn't complain of course.
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« Reply #14 on: November 14, 2019, 09:09:14 PM »

Mortimer,

Coplus Insurance.  https://www.coplus.co.uk/

Yes, it's proving to be a good product.
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« Reply #15 on: November 14, 2019, 10:04:14 PM »

KTC,

12-month original term and 8 months into term.

I confirmed by telephone with the Council and I am hoping that I was told correctly.
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« Reply #16 on: November 14, 2019, 10:58:39 PM »

Erm.... err.... seriously?  ???

Let me see if I got this right. You let out on a 12 months fixed term assured shorthold tenancy. By fixed term, I mean the tenancy does not by contract continues periodically on a contractual basis after that 12 months. The tenant, to the best of your knowledge, isn't in prison or in a hospital somewhere etc, and thus would if it wasn't for that still be living in the property like normal. Basically, they did a runner rather than being prevented from living at the property against their will.

If so........... there's no longer a tenancy! That tenancy ended at the end of that 12 months. At which point, since the tenant was not occupying "the dwelling-house as his only or principal home", a statutory periodic tenancy did not arise. No tenancy, no residential occupier, you're not evicting anyone, the property was yours, you were free to take possession. Also mean, no rent due from tenant, or insurance in place of, since no tenancy. You were also liable to pay council tax from that point onwards since no one holds a lesser interest lease of at least six months or residential occupier.

I'm basically more confused by the post.  ???
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« Reply #17 on: November 15, 2019, 11:12:29 AM »

KTC,

Yes, an Assured Shorthold Tenancy. 

It was my expectation that I would automatically regain possession at the end of the contract in April and be from then on responsible for Council Tax and utilities.  In preparation for this happening, I contacted my letting agent requesting she take meter readings on expiry.   My letting agent raised this matter with the Solitiors and in turn she advised me that this was not the case, I would have to wait for the eviction process to complete and be given a confirmed availability date.

Almost one year on, I am still waiting for the eviction process to complete.

I know that the Solicitors made a serious mistake (it was never explained to me what that mistake was), and, if I remember correctly, there was a change in handlers at the Solicitors, perhaps this explains in part the delay in completion.  Also it did not help that the Section 8 papers were served with the wrong spelling of my husband's name (an oversight on my part; they had taken the spelling from the contract, in which it was wrongly spelt).  The Solicitors then advised that to mitigate any risk due to the misspelling they would have to issue Section 3 and revised Section 8 papers on the tenant.

Three working weeks later now and I am still waiting for these papers to be served on the tenant.

I suppose, if the tenant had returned the keys, removed his possessions and confirmed in writing he was relinquishing the property, it would have been a clear-cut case and complete by now. 

Perhaps the original mistake, due to my lack and possibly the Letting Agent's lack of experience, was in not recognising the tenant was backing out of his commitment to honouring the contract and in not approaching him to surrender the property. 

« Last Edit: November 15, 2019, 01:57:41 PM by Elee »
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« Reply #18 on: November 15, 2019, 01:59:58 PM »

I can only repeat earlier responses of go with your solicitor's advice.

Quote
My letting agent raised this matter with the Solitiors and in turn she advised me that this was not the case
However, if possible, I would check with the solicitor why they think that either 1) the fixed term tenancy continued on a contractual periodic basis, or 2) a statutory periodic tenancy arose in accordance with s5 of the Housing Act 1988 as by all accounts with the tenant not at the time occupying the dwelling-house as his only or principal home, the fixed term tenancy when it ended was no longer assured.

The solicitor just seems overly risk adverse to me. But then they're getting paid by insurance who's not going to question it, which may well explain it......
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« Reply #19 on: November 15, 2019, 03:08:46 PM »

If these are the dates we are looking at (the OP said "12-month original term and 8 months into term." and "Unfortunately, my tenant disappeared from December of last year..."):

Tenancy with 12 month fixed term commenced May 2018.
Tenant disappeared December 2018.
Fixed term ended May 2019.

There is no tenancy... the Tenant has not been heard from, seen or paid rent... the tenancy ended in May 2019 because the Tenant did not remain on (was not even there) for a SPT to automatically arise. No notice needs to be served by an outgoing Tenant to Landlord (or Landlord to Tenant) at the end of a fixed term - if the property is unoccupied why a reasonable person would assume the tenancy is ongoing is beyond me. What action taken by the ex-Tenant (for I am going to refer to this party that way) to make anyone think a SPT has arisen?

Have they stayed on in the property?
Have they continued to pay rent?
Have they contacted anyone to say they want to carry on after the fixed term?

Are we, basically, saying that because some tat was left in the property and keys were never returned the tenancy is considered ongoing? I find that ludicrous - I just empted a flat of almost 20 bin bags of student tat at the end of their tenancy... Tenants leave stuff behind all the time... oh, and they lost a key. I find this all quite bemusing... rather than amusing.
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« Reply #20 on: November 15, 2019, 06:54:47 PM »

Thank you, KTC and Hippogriff, for your thoughts,

The best I can do is sit back, relax and let the Solicitors resolve this matter.

FYI:

1) Under Definitions of the Tenancy Agreement, "The Term" is defined as "The length of the letting agreed in this Agreement including any extension or continuation or any statutory periodic tenancy arising after expiry of the original Term."

2) Under Special Tenancy Conditions of the Tenancy Agreement, "Ending Tenancy": "Should either party wish to terminate the Tenancy, it is agreed that a minimum of 2 months advance written notice must be served on the other party and the tenancy must not expire within the first 12 months of the Tenancy commencement date.

The Solitiors, I suppose, have a heightened risk conscience and, because there was no positive proof that the tenant had abandoned the property, they determined the correct way to proceed was to make a formal application to the Court to evict the tenant under Section 8 Rent Arrears.  They obviously did not have enough time before the expiry of the 12 months Fixed Term to serve the papers and apply to the Court for repossession and, as a result, the Fixed Term went into a periodic tenancy (I surmise).

Anway, thank you again.  You have helped me to understand better what is going on.  Will post the final outcome.
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« Reply #21 on: November 15, 2019, 08:27:29 PM »

Our point is that if it was a 12 months fixed term with no contractual periodic element continuing, and it seems like it from what information you've posted, then a statutory periodic almost certainly didn't arise. Could I imagine any scenario where the tenancy was still assured when the fixed term ended? Sure, but the chance of it is so low it's not worth worrying about. If it wasn't for the insurance paying you the rent, then what damages you may be liable for while acting with a defence of reasonable beliefs if anything is negligible compared to any rent arrears.

What does your building insurer says about the property being unoccupied for so long?
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« Reply #22 on: November 15, 2019, 09:40:37 PM »

KTC,

I try to get my head around the terminology but I remain confused.  I do know when letting the property to the tenant it was with a view to continuing renting to him at the end of the 12 months, providing all was going well with the tenancy.  The tenant knew this but I don't know if there was a contractual agreement to that effect,

After shopping around, I changed my Landords Insurance to the Salvation Army as they offered better unoccupancy coverage.  As the usual internal inspections cannot be carried out by the Letting Agent due to the circumstances, the SA granted coverage for only carrying out external inspections every 30 days until I take back possession with the proviso that the property is secure and the heating is kept on or water drained off during winter months.

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« Reply #23 on: November 15, 2019, 10:41:40 PM »

KTC and Hippogriff,

I would appreciate your explanation to the following in relation to my absentee tenant:

"Once the period of an assured shorthold tenancy has come to an end does the tenant have to leave ?

When the period of an assured shorthold tenancy comes to an end and the tenancy is not renewed, but the tenant stays in the property the tenancy will continue as a Periodic Tenancy until the landlord decides to end it.
 
The landlord must end it by serving at least 2 months notice. In this case the 2 months must end on the last day of a period of the tenancy, (therefore if rent is paid quarterly, 3 months notice would be required).
 
At the end of the 2 months the tenant can leave if he or she wishes or wait until the landlord has obtained a possession order from the court."

I copied the above from a UK Law Co. website.

I know you are going to say that the tenant was no longer living at the property but the Solicitors are/were working on the assumption he could reappear and claim residency.
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« Reply #24 on: November 16, 2019, 12:02:11 AM »

Ignoring special circumstances not relevant to this discussion....

A fixed term tenancy if not ended earlier by mutual agreement or in exercise of a notice in accordance with a break clause will end through the effluxion of time, i.e. it will end when you originally agreed that it will end. It is possible for a tenancy to be periodic by contract from the start, or even for a contractual periodic tenancy that has an initial "fixed term", i.e. an agreed specified minimal length, in which case the tenancy will continue indefinitely until one or the other party take necessary action to end it.

Where a tenancy is assured (assured shorthold is a subset of assured), if it is a fixed term tenancy and its ending was not by an order of the court, or through surrender or action of the tenant (i.e. tenant serving a break notice), and there's no new tenancy explicitly agreed between the landlord and the tenant, then immediately on the fixed term ending a new periodic tenancy is deemed granted by the landlord to the tenant basically on the same terms as the fixed term tenancy that that just ended. This periodic tenancy is what's commonly referred in this context as a statutory periodic tenancy (SPT) for the obvious reason that it's periodic and arise in accordance with legal statue.

For a tenancy to remain assured, the relevant test here is that "the tenant [or their spouse or civil partner] or, as the case may be, at least one of the joint tenants [or their spouse or civil partner] occupies the dwelling-house as his only or principal home". If the tenant have moved out before the fixed term ending, then on its ending, they did not occupy the dwelling-house as their only or principal home. Ergo, the tenancy was not assured on its ending and no SPT arises. No tenancy and no residential occupier also mean you don't have to worry about getting a order for possession from the court and executing said order.

The test for whether a dwelling-house remains someone only or principal home can probably fill a law degree essay. We can simply say that the possibility that the former occupier of your property still occupies it as their only or principal home is highly remote (I would argue zero for practical purposes), and the burden here would be for them to show that's the case in court. If they managed that, there's still the little issue that a normal landlord would have re-let out the property by the time that happened, which would leave the only remedy civil financial damages for illegal eviction and criminal prosecution likewise. A criminal prosecution by the council (the prosecution authority in such cases) would never happen here as the landlord would have the obvious defence they acted with reasonable beliefs that the tenant no longer live there. And given the circumstances, I don't see the court awarding anything more than token civil damages to the tenant even if they win, and we're not even considering any counterclaim by a landlord for rent arrears that would swallow even non-token damages award.

Quote
In this case the 2 months must end on the last day of a period of the tenancy, (therefore if rent is paid quarterly, 3 months notice would be required).
:o Err, I have questions about the legal accuracy of that article/website.......

Disclaimer: I'm not a lawyer. This is not and should not be taken as legal advice etc. etc. You have an actual lawyer that you're (through your insurance) paying to give you actual legal advice. Listen to your lawyer, not some random stranger on an internet forum.
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« Reply #25 on: November 16, 2019, 06:53:50 AM »

Thank you, KTC, for taking the time to explain.  I understood your explanation.  It is appreciated.

It would seem that this bus journey I am on with the Solicitors is going around all the houses to reach its destination.  Now that they have taken this route it would seem they have to complete, even though their justification for doing so is flimsy.  My worry is that the Insurers, who are also on board, may jump off and refuse further payment.  Myself and the Letting Agency could apply the brakes and alter course to bring it to a swift end but would that be sensible if the Insurers are willing to continue with payments?  Anyway, it is unlikely the the Insurers and Letting Agency would change direction as they would not want to undermine the solicitors being that they are in business with one another.

I wish I could say that taking the long way home is the scenic route.  The only compensation is that there is not a tenant in situ causing damage and the rent is being paid by the Insurance.  Having said that, I may become responsible for Council Tax payments from the end of the 12 months Tenancy.

Going through this process, I have wondered if the police were alerted (perhaps by the Vetting Agency) to a missing tenant.  If so, would they investigate and, if so, could any such investigation delay eviction.  Or is there a UK wide register of missing tenants?
« Last Edit: November 16, 2019, 07:10:03 AM by Elee »
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« Reply #26 on: November 16, 2019, 01:03:03 PM »

The police deal with criminal offences, and the matter between you and your tenants is a civil one.  He's in breach of a contract but what he's done doesn't amount to a crime, and that's why the police won't be interested.

There isn't a UK-wide register of missing tenants specifically.  There are various registers of delinquent debtors, maintained by credit referencing agencies.  You wouldn't have any recourse to those for several reasons, prominent among which is the fact that you've been paid the rent by your insurance company.  Your insurers will definitely want to find him because they can pursue him for the rent under subrogation.  They often don't succeed, though.

While the insurers are paying the rent you should certainly not change course!
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« Reply #27 on: November 16, 2019, 01:37:52 PM »

Thank you for your reply, Mortimer.  I now see the difference between a criminal offence and a civil one, as long as he is not dead in a ditch somewhere, waiting to be found.

I will heed your wise advice and not change course.
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