Abandonment

If a landlord takes possession when it seems evident that the tenant has abandoned the property, there is a risk that the tenant may then claim unlawful eviction. The landlord could be prosecuted and face a civil damages claim from the tenant. Therefore, the safe option is to obtain an order from the court giving the landlord possession. As detailed earlier, evicting a tenant without a court order is a criminal offence (with few exceptions).

Section 2 of the Protection from Eviction Act 1977 states the requirement for a court order.

Restriction on re-entry without due process of law

Where premises are let as a dwelling on a lease subject to a right of re-entry or forfeiture, it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them.

The last part of the statement is essential, "while any person is lawfully residing".

However, in section 1(2) it says the following:

Suppose any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof or attempts to do so. In that case, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.

The test of "believing and having reasonable cause to believe" is hard to prove. Note that this protects not just the tenant but anyone lawfully residing at the property (often a friend of the tenant to whom the tenant has permitted to stay). Having someone else stay at the property may be a breach of contract, but this does not reduce their statutory rights.

Suppose a tenant ceases to occupy under an assured shorthold tenancy as their only or principal home (i.e., lives elsewhere). In that case, the tenancy does not end - it simply ceases to be an assured shorthold tenancy and becomes a contractual tenancy. They remain the tenant, with the right to exclude others, even if they are not living there.

A court order is required to secure possession without risk as a tenancy remains in force.

To argue that a tenant has abandoned the property, and this was the justification for taking possession without a court order, the landlord may need to be able to demonstrate their reasoning with additional supporting evidence.

Tenants who have abandoned a property usually stop paying the rent. Even with the tenant no longer occupying, this may not be sufficient evidence. There may be many reasons why a tenant stops paying the rent. A landlord may need to secure additional evidence to show that the tenant's actions are inconsistent with the tenancy continuing and that their actions are reasonable. This might include that the tenant had notified the local authority that they were no longer living there to stop their council tax liability or that they had provided closing meter readings to utility providers. Even though this may be supplemented by witness statements from neighbours and physical or electronic communication evidence between the parties, there is still a risk that the tenant may claim unlawful eviction, which may need to be defended in court. Some tenants will get assistance in pursuing their landlord from "no win, no fee" solicitors, so landlords should be careful. A landlord may engage with a local authority to explain the position and evidence of abandonment. Many prosecutions for unlawful eviction start with the local authority taking action. If the local authority is content with the landlord's actions, it would unlikely result in prosecution.

When debating the risks of taking possession without a court order by claiming abandonment, the question is not "Is somebody living here?" — the right question is, "Does the tenant intend to return within a reasonable period?"

For example, if a tenant is seriously ill in hospital, is in prison or gets stuck abroad, they may not have the means to keep the rent paid and may not be present on the property. However, when you see the three examples above, it is easy to see that no one would be present in the property, no rent would be paid, and the unwary landlord could easily assume abandonment.

There is no formal process for dealing with abandonment recognised yet in law. The Housing and Planning Act 2016 includes an abandonment protocol, but this part of the legislation has never been enacted. The proposed process involves four notices over eight weeks, but the tenant can come back and claim unlawful eviction, so the process is not much help. It is common for people to refer to "abandonment notices", where a notice is affixed to the property expressing the belief that the property has been abandoned and the intention of the landlord to take back possession if the tenant does not contact the landlord. However, if you look at the examples above, the tenant may never know the notice was put up and may be unable to contact the landlord. An abandonment notice may form one of several threads to evidence a "reasonable" belief that the tenant abandoned the property, but it is not nearly enough.

Whilst there may be cases where it is safe and lawful to repossess without a court order, always seek the order if in doubt.

The penalty of unlawful eviction is related to what the tenant has lost (for example, taking back a three-year fixed-term agreement would be more dangerous and expensive than a monthly periodic tenancy). For this reason, some landlords will take possession of the property but still pursue court action even while re-letting. They do this as the court order will terminate the tenant's rights, limiting damages payable to an aggrieved tenant. However, they have not lost rent by leaving the property empty all that time.