Abandonment versus section 8 & court procedures?

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    Abandonment versus section 8 & court procedures?

    Hi

    I hope someone can help me.

    I'm looking for advice on whether I can consider my property abandoned, and what the effect on taking action e.g. changing locks, removal of contents may have on the Section 8 Notice or rent recovery process.

    I have only been a landlord for a year and so haven't faced these issues before, so I'm sorry for the lengthy post.

    • I have a tenant on an AST which began on 07/03/2008. The rent is £850 pm. Payments are due on the 7th of each month. A break clause was added to the contract allowing 2 months notice to be given after 6 months.
    • The tenant failed to pay on Oct 08, Nov 08, Dec 08, and Jan 09. The total overdue is now £3400.
    • The tenant did not reply to contact during Oct 08. In Nov 08, my agent managed to contact the tenant and was told that he has lost his previous job, and had now started a new job. A copy of his new employment contract was obtained, and verified. He stated he would not be paid until the end of the month (Nov 08), and offered to pay 6 weeks rent from then on until the outstanding debt was repaid. I agreed.
    • The tenant failed to make payment at end on Nov as agreed and did not get in contact. My agent eventually managed to speak to him in Dec 08.
    • The tenant stated that he could not afford the rent and would leave the property and drop the keys off at the agency on Sunday 21st Dec 08.
    • On Monday 22nd Dec 08, my agent reported that he had a failed to drop off the keys as agreed. He then spoke to the tenant who stated that there had been a problem with the van, and that he would leave by Wednesday 24th Dec 08.
    • No keys were returned, and my agent has been unable to contact the tenant since that time.
    • The tenant has failed to reply to any telephone calls to his mobile or to letters. When my agent has called him at work, he is repeatedly told that the tenant is "in a meeting"
    • On Monday 5th Jan 09, my agent served a Section 8 Notice by placing it under the door of the apartment.
    • Suspecting that the apartment had been abandoned, my agent put another letter under the door giving notice that we would be entering the property to inspect.
    • Yesterday, Tue 13th Jan, on entering the property we found that much of the contents had been removed including sofa, lounge tv, beds etc. The fridge and freezer had been emptied. It did not appear that anyone is currently living / sleeping there.
    • There were other contents remaining including a duvet, some pillows, a pile of clothes on the floor, a few pairs of shoes, some toiletries, and old TV, a pile of paperwork, a couple of tools, some saucepans.
    • The Section 8 Notice had been opened and was on the kitchen unit surface.
    • My agent states his opinion is that the property has been abandoned.
    • Another agent to who I had given keys in Dec 08 in preparation of marketing the property has in fact also entered the property, ahead of my agreement to do so, and it is in his opinion that the property has been abandoned and that I would not hear from the tenant again.
    • It has been suggested that it will take approximately 8 weeks to get a court date which would therefore be approximately 16th March.


    I am naturally eager to get a new tenant in as soon as possible, and so if there's any way that I can move forward with my apartment being treated as abandoned I'd like to explore the possibility.

    So, my questions are as follows:
    • Can the tenant's verbal declaration that he would vacate the property be deemed to mean that he has in fact done so?
    • Does it seem like I can treat my apartment as abandoned?
    • What processes must I do to deal with it that way?
    • What do I have to do before I can change the locks? I sought the advice of various other local agents, and they have all given different advice. Some have said to change the locks immediately, then place a Notice of Abandonment on the door, stating that the locks have been changed and giving my agents details. Others state that you have to give 7 days notice before changing the locks, others said you have to give 14 days notice before changing the locks.
    • What do I have to do before I can remove the remaining contents? What do I have to do before I can destroy the remaining contents? A couple of agents said they'd remove them immediately and destroy them, others have said I must give 14 days notice before removing them, others have said 28 days notice before removing and destroying them.
    • If I want to proceed with the abandonment route, should I still proceed with the court procedures for a Possession Order? If I have done this and moved a new tenant in, will I still be able to get a Possession Order? Can I still get a Possession Order if I don't know the tenants new address?
    • As I know the tenant is employed how likely is it that I can seeking to have rent repaid to me via his wages, even if I don't know his new address?
    • I have not yet attempted to contact the tenant personally. I am considering trying to call the tenant myself to try and get him to finish moving his contents and return the keys, and being unaware of my name, he may fail to block my call if I try to contact him at work. However, at the moment there has been nearly a whole month of no contact with him, which may add to my case for abandonment, so I'm concerned that if I do actually get to speak to him that may work against me. Has anyone any thoughts on this?
    • Was the method of serving the Section 8 Notice sufficient. I have since been told it has to be done by a solicitor. Is this correct?
    • The Section 8 Notice had an error, in that it ommitted October's missed payement. Also, in section 4 of the Notice no mention was made of a "daily rate". Would either of these be cause for a judge to reject the Notice and refuse my application for a Possession Order?
    • If I choose to avoid the abandonment route, and the tenant still hasn't moved the remaining contents or returned the keys by the end of the AST's year, 07/03/2009, can I then change the locks and remove his items, as he no longer has a contract to be in the property, or does an AST roll-on afterwards? If I give a 2 months notice as per the break clause in the contract does this make a difference?


    Well, if you got this far thank you very much for taking the time.

    I'd appreciate any advice anyone can offer.

    Thanks

    Dave

    #2
    You will see, oft repeated, on this forum, that the only safe way to take possession of a property you rent out is to get a court order - anything else is a risk.

    The S8 Notice has been served correctly - you dont need a solicitor to serve it - pass on my compliments to the person who told you this and tell him/her to find another subject to specialise in since he/she knows little about landlord and tenant law or the law of property act 1925 under which service of notices is covered. Whether the notice is factually correct is another matter - however, it has been served properly.

    Reading what you have put, I would say that I would have been tempted to tread the path you have taken but would hav e done so with documentation/photographs/witnesses as applicable to every step to prevent the tenant running a scam of appearing to leave but then popping back up and claiming compo for illegal eviction.

    As to the stuff left behind, treat is as abandoned goods and deal with it correctly to avoid any future legal issues - Interference with goods act - do a google for it.

    Now you are in, change locks, put a notice on the door and leave it there for a couple of weeks and then you are relatively in the clear to permanently repossess the flat.

    You dont now need a court order for possession because the flat, by abandonment, has been given up but you do need a court summons for the rent arrears.

    I too think you won't hear from the tenant again except in reply to any rent arrears summons you issue BUT you took a calculated risk and it appears, so far, to have paid off - the correct way is to do a PO through the court as thats the only 100% legal way.

    Comment


      #3
      Dear David

      Thanks for reading my essay!

      Following your advice re looking up "Interference with goods act", I believe I must keep them stored for up to 3 months.

      May I ask...You mentioned putting a notice up and giving it two weeks. Does refer to not moving his goods to storage until after that period too (rather than moving them to storage immediately after changing the locks), or just meaning 2 weeks before proceeding with new tenants?

      Also, do you have an opinion on whether I should try to contact him personally, or whether this may endanger my abandonment claims as it may give him the opportunity to say "no, I've not moved"? He has always "sounded" reasonable, and I wonder if he's just burying his head in the sand, and whether a good natured call from me might prompt him to at least return the keys.

      If I go the abandonment route, and you say I still "need a court summons for the rent arrears", is that something that can be done via the section 8, or is this a completely separate process, eg through a small claims court or something?

      Thanks again

      Dave

      Comment


        #4
        I have noticed that there's a clause in the contract stating:

        "That where the Property is left unoccupied, without prior notice in writing to the Landlord or Agent, for a prolonged period, the Tenant has failed to pay rent for that period, and has shown no intention to return, the Tenant is deemed to have surrendered the Tenancy. This means that the Landlord may take over the Property and re-let it."

        - The tenant stated to the agent that he would vacate on 23rd December.
        - He has failed to pay rent for the period.
        - We've heard nothing to declare his intention to return.
        - The "prolonged period" sounds vague, I've seen other contracts state 28 days.

        But does the last sentance "take over the Property and re-let it." mean that if the conditions of the clause are met, I could reclaim possession without a Possession Order?

        Thanks

        Dave

        Comment


          #5
          Originally posted by WavyD View Post
          But does the last sentence "take over the Property and re-let it." mean that if the conditions of the clause are met, I could reclaim possession without a Possession Order?
          That's what the penultimate paragraph in post #2 already says!
          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
          4. *- Contact info: click on my name (blue-highlight link).

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