What rights do landlords have when a tenant appears to have left a buy to let home before the tenancy agreement has ended?

Moving out early creates a tricky situation for landlords who must decide if the tenant has abandoned the property or surrendered the tenancy before changing the locks.

The risk is taking the property back too quickly can soon become an illegal eviction with all the problems that entails for a landlord.

This guide looks at the three likely scenarios and how to deal with them.

Express surrender

This is probably the easiest of the three scenarios to identify and deal with for a landlord.

An express surrender needs consent from the landlord and the tenant, which should be obtained in writing to allay any future misunderstandings.

The agreement releases both parties from the tenancy and any other obligations they have to each other.

If the tenant signs to move but stays on, the landlord can still take back the home through the courts.

A surrender should be made as a deed and a suitable document is available here. It should be noted, if the tenancy is periodic, it’s easiest for the tenant to just give a notice to quit. This unilaterally ends the tenancy and doesn’t have to be made as a deed.

Implied surrender

No written agreement is involved in an implied surrender, which means a landlord should be sure the tenant has given up the tenancy.

There will be an implied surrender where a landlord or a tenant has been a party to some act, the validity of which he is afterwards estopped from disputing, and which would not be valid if the tenancy had continued to exist (Sable v QFS Scaffolding Ltd  [2010] EWCA Civ 682)

If the implied surrender is disputed, a court will look at what happened leading up to the point when the landlord decided the tenant had moved out.

This could cover several factors, such as, moving belongings out of the home or handing the keys back. Non-payment of rent is a consideration but not a decisive factor and carries little weight.

As a landlord, the aim is to list a series of actions that are consistent with those of someone leaving the tenancy. The key is that the tenant’s actions should show their intention relating to the property to a reasonable person.

A useful case is Sable v QFS Scaffolding Ltd. Although the case relates to a builder’s yard, the rules apply to residential property as well.

More detailed information about surrender is available here.

Abandonment

Deciding if a tenant has moved out or has just gone on holiday or is in hospital is a concern for landlords.

Abandonment is when a tenant moves out without telling the landlord.

This is one case with a thin line between lawful possession of a property and illegal eviction.

The question is not whether the tenant is living at the property but whether they intend to return within a reasonable period. If the landlord is unsure whether the tenant intends to return within a reasonable period, a court order must be obtained.

More detailed information about abandonment can be found here.

Upcoming Legislation (England)

Part 3 of the Housing and Planning Act 2016 hasn’t been commenced yet and no date has been provided but it contains a procedure for recovering abandoned property when it is brought into force.

This law will allow a landlord to recover a property without a court order, providing some conditions are met:

• The property is in England
• Three statutory warning notices are served on the tenant, any named occupiers or deposit payers
• No one has replied in writing before the deadline detailed in the notices nor paid any rent

And

• A rent condition is met that confirms:
  • Rent is due weekly or fortnightly and remains unpaid for eight weeks
  • Rent is due monthly and is unpaid for two months in a row
  • Rent is due quarterly and rent for one quarter is more than three months in arrears
  • Rent is due yearly and rent for three months is more than three months in arrears