A harsh economic climate often naturally coincides with tenants struggling to meet their rental obligations under leases. What can sometimes follow is an upsurge in residential tenants deserting their properties, leaving many landlords in an awkward and unenviable position. With a possible recession looming and many tenants struggling to make ends meet, it is worth considering (i) what constitutes an abandonment of tenancy, and (ii) the options open to landlords to deal with this.

Abandonment in this context occurs when a tenant simply leaves a property before the end of a tenancy and without providing notice to the landlord. It represents a significant risk to landlords, not least because (i) an absent tenant may not meet his or her rental obligations, (ii) abandonment is difficult to detect or establish, and (iii) dealing with the issue requires specialist legal advice.

For these reasons it is therefore vital that a landlord achieves a quick, decisive and cost-effective solution. But what exactly constitutes abandonment?

Has the tenant abandoned the lease?

The ambiguity stems from a lack of statutory provisions in respect of abandoned tenancies. Part 3 of the Housing and Planning Act 2016 looks set to offer a prescribed mechanism for establishing and resolving the abandonment of tenancies, but the relevant provisions are yet to come into force and it is unclear as to whether they ever will.

The concept of abandonment therefore assumes its wider meaning in law, namely the relinquishment of a legal right. In this sense, abandonment has been treated in case law as a potential surrender of the tenancy, which can take place either via (i) deed, or (ii) by “operation of law”.

Clearly, the former option – which requires both parties to cooperate in agreeing a legally valid deed – is unlikely to occur where the tenant has disappeared without notice. Instead, the question is often whether abandonment can be established by operation of law. The test here is whether the tenant and landlord have behaved in a way that is at odds with the continuation of the tenancy. The court will therefore focus on the conduct and actions of the parties.

The actions of the parties will inevitably vary on a case-by-case basis, and as such it is difficult to establish hard and fast rules for detecting abandonment, but case law does offer some useful guidance. In both Artworld Financial Corporation v Safaryan [2009] and QFS Scaffolding Ltd v Sable [2010], it was said that the conduct must be unequivocal, meaning there is a high evidential threshold.

In the former case, where it was in fact the landlord’s conduct under scrutiny, it was confirmed that the test is whether the conduct is “so” inconsistent with the continuation of the tenancy. To demonstrate, in this case a surrender was established only where the landlord had accepted the return of keys by the tenant, and had proceeded to occupy the property and carry out various works.

But where a tenant has simply absconded without any communication, nor the return of his or her keys, a landlord is left in a precarious position. Case law suggests that a tenant’s absence alone is not sufficient to establish abandonment, and thus the landlord should note any additional conduct, from both himself and the tenant, that is inconsistent with the lease continuing. Ultimately, strong and substantive evidence is required to surmount the evidential threshold, but where the tenant has fled without trail, such evidence might prove elusive.

So, what can a landlord do?

Practical Tips for Landlords

A landlord might consider re-entering the property to carry out an inspection. Alternatively, the landlord might conclude that the tenant had indeed abandoned the tenancy, and proceed to change the locks. This could, however, prove to be an extremely costly mistake, as the Protection from Eviction Act 1977 (“PEA 1977”) potentially makes it a criminal offence to unlawfully deprive a residential occupier of his premises without proof that the occupier has ceased to reside in the premises.

Where a tenant might be in hospital, prison or enjoying a long holiday, it would be all too easy for a landlord to fall into this trap. Instead, a landlord should consider taking various cost-effective steps to ascertain the tenant’s whereabouts, actions and intentions.

Should the landlord’s enquiries assist in locating the tenant, the parties may establish a surrender. However, where a landlord’s enquiries lead to a dead end, the safest option is often to proceed with court action to recover possession of the property by obtaining an Order for possession and costs.

Legal Options

Generally speaking, a landlord can rely on either (or both) of the two procedures set out in section 8 and section 21 of the Housing Act 1988 respectively. The former is a mechanism whereby the landlord can end the tenancy before its contractual expiry date based on the tenant’s faults (such as rent arrears and other breaches of the tenancy agreement), whereas the latter applies where the fixed term has expired and there is no fault attributed to the tenant.

Our Property and Trusts Litigation team has considerable experience in handling cases of abandonment and indeed all forms of tenancy disputes. Should you require any assistance with regards to a tenancy dispute, please do not hesitate to contact partner Shams Rahman or any member of the Property and Trusts Litigation team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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