This is most likely what is known as abandonment.

Ending a tenancy

There are two ways to gain possession of the property:

  • Court order
  • Express surrender

There is another way that is not so clear-cut – implied surrender. The tenant not paying rent for several months and disappearing may be a case of implied surrender but great care must be taken if relying on this to end the tenancy and re-possess the property. The tenant going into care or prison or dieing does not bring the tenancy to an end.

Criteria for implied surrender

Implied surrender is succinctly defined in Sable v. QFS Scaffolding Ltd (2010):

The circumstances (of the surrender) must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended”.

This was reiterated in Chamberlain v. Scalley (1991):

There must be unequivocal conduct on the part of both the landlord and the tenant which is inconsistent with the continuance of the tenant“.

For a tenancy to have been ended by ‘implied surrender’ the tenant’s conduct must indicate there is no intention to continue with the tenancy – this is deemed to be an offer to surrender which the landlord can accept (e.g. by going in and changing the locks).

For a landlord to gain possession by implied surrender, the implied offer to surrender would be recognised by the following actions:

  • Tenant stops paying rent
  • Tenant hands back the keys, either in person or by posting them through the landlord’s letterbox or simply leaving them in the property – leaving the keys behind is symbolic of giving up possession and you are always at risk if you change the locks when the keys have not been returned
  • Tenant moves out all his/her possessions

These are not the actions of someone who wants to continue their tenancy.

If you repossess in any other circumstances you risk the tenant coming back and bringing a claim for compensation for illegal eviction.

The only safe solution

The only safe way to deal with this is to get an order for possession at the local County Court. And even if you get an order for possession, you won’t be totally safe unless you repossess using the court bailiffs (or High Court sheriffs).

Assessing the risk

Sometimes it will be safe for landlords to repossess and sometimes it will not.

If the keys have not been returned and/or there are things still at the property, it will always be a bit of a risk. It is up to the landlord to assess this risk and consider whether it is worth taking. Sometimes it clearly will be. Other times it will not.

But it will always be a risk.

Further Reading

Sable v. QFS Scaffolding

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