Problem with tenant - legal advice needede re Notice to Quit

(71 Posts)
iago Thu 10-Jan-13 20:36:35

More of a WWYD but would appreciate some imput. Sorry, this will be long.
We have a 2 bed flat which we have let out to a young single mother (X) for over 3 years. Initially the rent was paid in full by Housing Benefit. A year ago, she got an evening job and Housing Benefit was reduced. X was thrilled to have a job and paid the rest of the rent into our account without fail until Oct. I sent her a text reminding her of her commitment, and eventually she sent a text apologising, explaining she had lost her job and was trying to sort things out. As we have never had any problems with her in the past, we decided not to hassle her. (Also past experience has shown us that HB's wheels run slowly!)
In November, however, no payment from her again and she did not reply to my texts - which were not hostile. Same again in December, so we sent a recorded delivery letter which was returned to us this week. Yesterday evening we went to the flat and there was no-one in.
Today we let ourselves into the flat and found a mountain of mail in the hall. The electricity was off - cut off? - and every room had been trashed: clothes, toys etc everywhere and doors off hinges. It was clear she had been co-habiting as there were men's clothes and a note from a spurned lover. We suspect that there was a third adult living there as the 3 rooms had been rearranged as 3 bedrooms.
We are changing the locks tomorrow as we don't know who has keys to the place - and we don't want any more damage done.
So WWYD? We have to get the place straight and clean, possibly redecorated, for a new tenant. As soon as the Council know X has gone, we will lose all the rent and will be liable for Council Tax. We can't serve her with a Notice to Quit as we don't know where she is. WweBU to pack up all the stuff strewn all over the place and take it to the tip so we can get the place cleaned -you cannot see the floors in the main rooms. Or would this be illegal? (Dumping the stuff that is, not cleaning up!) Has she forfeited her rights to the flat by her actions?
Does anyone have any experience in this area? I have to add that we are really upset over this as we were fond of X. She was so proud of the way she had turned her life around and now it seems as if she has messed up big time. I'm particularly sad about all the daughter's stuff we will have to throw away.
Thank you for reading.

iago Thu 10-Jan-13 20:41:46

Just checking my long post posted.

As far as I know, unless you have served a section 21 notice and gone through correct legal process - you have broken the law by letting yourself into the flat. This might make it very difficult now for you to legally evict, as you have breached the Housing Act. (2004 I think)

I'm sure someone will be along with a bit more knowledge about such things.

I am sorry that this has happened to you, and I hope that you can get it sorted with the minimum of fuss.

CloudsAndTrees Thu 10-Jan-13 20:46:40

I wish I had advice for you, but I don't. You have my sympathy though. Maybe re post in legal, or on one of the landlords forums?

I hope you get good advice and can get things sorted ASAP without too much loss.

HoHoHoNoYouDont Thu 10-Jan-13 20:46:55

The same thing happened with my tenant a while ago. I eventually found out she had vacated the property because the housing benefit dept had received an application from her at another address.

Your recorded delivery letter proves you have tried to contact her, this should be enough to cover your back against any illegal entry claim. If you took photos of the damage then better still. It sounds like she's gone for good so at least you can get a new tenant in.

Council tax is only 50% on empty property until you find another tenant. Also, housing benefit paid me for up to the time I realised she'd left the property.

Hope you get sorted soon, it's a nightmare situation to be in.

Fecklessdizzy Thu 10-Jan-13 20:48:15

It soundes like a bit of a rum do, alright ... Does anything in your tenancy agreement with X cover non-payment of rent and how many missed months constitute a breach of contract?

Is there a room in the flat you could stash all the stuff in just in case she wants it back whilst you do up the others?

happynewmind Thu 10-Jan-13 20:49:11

From memory.

A section 21 can be used to evict a tenant with two months notice but only at the end of their fixed tenancy period.

So if the tenancy is 12 months you can give it on the 10th month that you wont renew.

Or if they are on a rolling monthly contract you give two months notice.

If it is because of arrears or behaviour you need to give a section 8 and must serve and then go to court to gain a possession order.

TBH it sounds like she has gone already although they may be just on holiday and really bad tenants.

If the tenancy is a rolling one I would be tempted to issue a section 21 and forget the rent/damage as the section 8 could drag on and cost more in court costs.

Here looks quite good:

https://www.propertyhawk.co.uk/index.php?page=bible&id=141

"Abandonment is the voluntary surrender of a legal right, for example, an interest in land or property - a tenancy.

By virtue of S5(2) Housing Act 1988 a tenancy can only be bought to an end by the landlord obtaining a court possession order or by a surrender or similar act by the tenant.

If the tenant appears to have abandoned the landlord’s residential investment property, this can put the landlord in a difficult position. This is because if the tenancy has not been surrendered or bought to an end, the tenant may return and accuse the landlord of unlawful eviction.

The issue of tenant abandonment is further complicated by the fact that tenants sometimes leave their accommodation unoccupied for long periods. In this situation it may either breach the terms of the landlords insurance or increase the premium due to the added risk to the insurer of covering an empty buy-to-let residential investment property"

queenofthepirates Thu 10-Jan-13 20:50:21

Righty ho, quite a complex one but in short, stop what you're doing before you end up in hot water.

1. You need to have a good hard look at the tenancy agreement. Normally you need to give the tenant 24 hours' notice that you intend to visit. If you didn't, you are in breach of her privacy and breaking the law. Sorry. An emergency overrides this but this isn't an emergency.

2. She may have gone on holiday so your next step is to back out of the flat, leave it as you found it and serve notice on her properly for failure to pay her rent. You serve it to the address of the property. Check the tenancy agreement as to how much you need to give and when it can commence (normally 2 months' notice). When that period expires and only if she hasn't vacated the property, you can go to court to gain legal possession.

3. Under no circumstances can you chuck her stuff in the tip, change the locks or set foot in the property without her permission or possession of the flat legally. You are on the wrong side of the law regardless of how she has treated the property. She may return to the property, redecorate and return it to you in the state she found it but if not, you can make reasonable deductions from her deposit.

I know you won't want to hear any of the above but to be frank, you need some proper legal advice before you continue.

HoHoHoNoYouDont Thu 10-Jan-13 20:51:30

Call the Housing Benefit dept to see if she has made an application for benefit at another address. If she has then that's proof she's abandoned the property.

happynewmind Thu 10-Jan-13 20:53:34

Just to add when I moved into a property on housing benefit after running from exh they took four months to process it so it is possible she is still waiting.

No excuse for the damage but you have broken the law by letting yourself in I am afraid unless the recorded delivery letter gave 24 hours notice of a property inspection.

You would also be illegal if you change the locks tommorow and she can call the police over that.

fairlytiredallthetime Thu 10-Jan-13 20:55:06

If she has abandoned the flat and you can get access, then apply to the council for a Class C Exemption while the flat is being redecorated - it will need to be empty and substantially unfurnished for you to get this exemption. It will give you six months exemption from council tax so plenty of time to get it refurbished and a new tenant in place.

CloudsAndTrees Thu 10-Jan-13 20:56:09

This woman hasn't paid her rent since October! It's unbelievable that OP could be in a position where she is doing something wrong for taking back her own property.

FredFredGeorge Thu 10-Jan-13 21:06:13

CloudsAndTrees But the law is on the side of the otherwise weaker individual against the business of the landlord. Protecting the right to a home is seen as more important the risk of a landlord losing a bit of cash. As you can see from the original post and subsequent comments landlords have all sorts of strange ideas about invading tennants homes, so that protection is almost certainly warranted.

iago Thu 10-Jan-13 21:21:37

Gosh! Thanks for all the replies so far. I am reading and heeding all the advice.I forgot to say that we left a note when we went round yesterday to say we would be back today. Though as she wouldn't have seen it. I also sent a text message. We will contact the Council tomorrow. We HAVE to change the locks - I will text her to warn her - because we have no idea who has access to the place. What if spurned lover came back and started a fire next time? We think he trashed the flat after she went wherever because he left her a note so he at least must have a key. Also X kept the place in excellent order.
However, I have persuaded OH that we must not throw any of her things away.
We may have broken the law by entering the flat, but we were genuinely worried that something nasty could have happened to X and her daughter and there were 2 cats last time we visited. We were relieved to find no bodies.
I'm sure X has not gone on holiday as she has a school aged daughter and never kept her off school.

happynewmind Thu 10-Jan-13 21:35:15

I think she probably has gone although why would she leave all the child's stuff? but you still have to do things right.

Its really is illegal to change the locks no matter who you think may have access.

"If you are a residential occupier of the premises, i.e you live there, then it is a criminal offence for any person to unlawfully deprive you, as a residential occupier, of your occupation of the premises. Changing the locks would be an unlawful eviction unless you have been officially evicted from the property by court order.

An unlawfully evicted tenant may use reasonable force to regain entry to their own home (e.g. breaking a window).

happynewmind Thu 10-Jan-13 21:36:29

Thats from Ask the Police UK website.

happynewmind Thu 10-Jan-13 21:39:03

Which is the run by the following

"The Police National Legal Database (PNLD) is managed by the Association of Chief Police Officers but is under the day to day control of West Yorkshire Police."

I think you should take either a section 21 two months notice or a section 8 notice (if your willing to follow the court path) over there tommorow and post it through the door.

Do things properly.

If she has not gone and she gets back late at night to find locks changed and she cannot get hold of you you will be in very hot water.

Jengnr Thu 10-Jan-13 21:45:18

Have you phoned the police? Out of concern for her welfare I mean rather than for your flat.

happynewmind Thu 10-Jan-13 21:45:22

From Government website

What is illegal eviction?
Illegal eviction is where a landlord (or someone acting on his/her behalf) excludes a tenant form part or all of their home or does something designed to cause the tenant to leave the property.

If your landlord wants you to leave and you do not have anywhere to go or you do not wish to leave then you usually have the right to remain until a court order is issued. If the landlord does not take the necessary legal action and does one of the following then he/she will be unlawfully evicting you:

■Changing the locks so that you cannot enter the property
■Removing you and/or your belongings from the property
■Excludes you from any part of your home

If your landlord (or anyone acting on his/her behalf) attempts to unlawfully evict you should call the Police and contact the Housing Options Centre. If this incident happens outside office hours you should contact our emergency out of hours number 020 8552 9587.

When the Police arrive they should:

■Take details
■Advise the landlord of the correct way of gaining possession of the property
■Warn the perpetrator that they might be committing a criminal offence, which will be reported
■Ask everyone to put things back as they were
In certain cases the police can arrest the person trying to gain entry to the property against your wishes. You should obtain a crime reference number and the numbers of the officers that attended the incident.

You may also claim compensation towards any costs of inconvenience.

Aspiemum2 Thu 10-Jan-13 21:46:39

What a horrible situation to be in. I can absolutely understand you wanting to sort this straight away. I think though that you should heed the advice given, the last thing you want is to get yourself in murky waters over this.
It is not something that I am clued up on and I'm pretty disgusted that your property can be left in such a state and yet your hands seem to be tied. You must be furious, but I again urge you to be cautious. A person who can do this damage to a property would probably think nothing of using the law against you just to put the boot in.

Aspiemum2 Thu 10-Jan-13 21:47:52

As an added thought - are you sure she's not in hiding from the person who left the note?

happynewmind Thu 10-Jan-13 21:48:31

I agree with Jengnr.

Did you do a property check during that three years and all was ok?

If she has paid none stop fine for three years and property has been fine I would be worried something had happened.

PartyFops Thu 10-Jan-13 21:48:48

If a tenancy agreement has not been legally ended or surrendered, but the tenant appears to have left the property during the tenancy, then this is known as abandonment.

Tenants sometimes choose to leave a property for long periods of time, but if they are planning to be away from the property for more than two weeks they are required to inform the landlord. This is often stated in the tenancy agreement, so the tenant would be breaking the terms of the tenancy, if they failed to inform the landlord they were going to be away from the property.

A landlord must be sure that the tenant has surrendered the tenancy by abandonment, before re-letting the property or changing the locks. The best way to be sure of this is by contacting the tenant and ensuring they confirm they are abandoning the tenancy by a written notice to quit. Retuning the keys is a clear indication from the tenant that they are agreeing to surrender the tenancy. If a tenant has not ended the agreement, the landlord is responsible to ensure their belongings are looked after if they have been left in the property.

If the landlord is unsure as to whether the tenant is living in the property or not, it is best to end the tenancy by applying for a possession order, rather than run the risk of having unlawful eviction proceedings put forward. A tenant may return and press charges of illegal eviction under the Protection from Eviction Act 1977. If the landlord has re-let or repossessed the property they also run the risk of being charged with breaching the terms of the tenancy agreement. The safest option, for landlords when abandonment seems to have occurred is to get a possession order from the courts, especially if a tenant has left their belongings or furniture in the property.

A landlord must make the necessary checks to confirm that the tenant has abandoned the tenancy. It could be that a tenant is on a long holiday, is in hospital or undergoing a short prison sentence.

In order to gain evidence as to whether or not abandonment has occurred the landlord can make enquires by:

Speaking to the neighbours.
Checking to see if the keys have been returned.
Finding out if the rent is still being paid.
Contacting a relative for information on the tenant’s whereabouts.
Finding out if belongings or furniture have been removed from the property.
If after trying to gather information on the tenants whereabouts and whether or not abandonment has occurred, it appears the property has been abandoned then the landlord is only able to enter the property under certain circumstances. If the landlord feels that the property is in an insecure condition, or that electrical or gas appliances could cause damage or danger to the property then they may have a case for entering the property. If this is the case, it is advisable to have an independent witness who is happy to confirm the condition of the property and the situation in writing. The landlord is also required to place a notice on the door of the property if the locks have been changed (for security reasons) advising the tenant where they can contact the landlord to gain a new key to the property.

Illegally evicting a tenant is a criminal offence, so landlords need to be careful before repossessing or re-letting a property and take the necessary precautions.

PartyFops Thu 10-Jan-13 21:49:50

Have you asked the neighbours? If you do decide to change the locks, you must leave a note on the door for her to contact you to let her back in again.

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