THERE are times when you cannot get hold of a tenant; they do not answer your calls or they are not in the property when you are scheduled to meet them. Perhaps they owe you rent, or you need access to resolve an issue at the property, what to do next?
If you believe your tenant is missing and has vacated the property, before you change the locks, march into your property or advertise it to re-let you need to follow a process to confirm that if your tenant is missing they are not planning to return.
Use all means you have to try and contact your tenant, including next of kin details you should hold.
Are there signs at the property that the tenant is missing, can you see a build up of mail at the door. Ask the neighbours if they have seen anything, leave your number with a friendly neighbour and ask them to contact you should they see your missing tenant.
Check the level of arrears, if any, you cannot assume that the tenant has gone, they may be in hospital or prison and unable to contact you.
Can you go into the property?
A tenant has two huge rights under the term of their AST, the right to quiet enjoyment and the right to exclude all other people from the property including the landlord. There is no easy answer to this, if your tenant is missing and has been for a while and you can see a lot of post at the front door you may feel it is safe to enter.
Or if a neighbour advised you they saw the tenant move out their belongings then you the landlord does have reasonable grounds to enter the property and check all is ok.
New rules to recover abandoned properties
The Housing and Planning Act 2016 will make it easier for landlords to recover abandoned properties. A new Section 57 notice can be served, provided there are rent arrears and certain other requirements are met which include the serving of previous notices in accordance with the correct timelines.
If there is no response because your tenant is missing and the S.57 is served the landlord can immediately, and lawfully, recover the property and change the locks. Although the Act received Royal Assent in May 16 this section has not been brought into force so for the time being this remedy is unavailable.
I will update you when I hear that the Section 57 is enforceable because this will save a lot of landlords a lot of time when you have a tenant that is missing and in accordance with the Section 57 you can recover your property much quicker than was previously possible.
If your tenant is missing and you believe the property has been abandoned then you can read further information about the Section 57 notice by clicking here.
What if your tenant has died?
This is an extremely difficult and challenging situation for a landlord. There will be legal, financial and logistical problems to address, as well as the personal, emotional and delicate matter of liaising with a bereaved family.
A common misunderstanding is that death means the end of a tenancy, but this is not the case;
If there are two people on the tenancy then the remaining tenant will acquire the share of the deceased interest under the “rights of survivorship” rules and the tenancy can continue. If the tenancy is fixed then the estate if the tenant will be liable for the rent until the end of the term.
Contacting next of kin
This needs to be done to ascertain the intentions of all concerned. The executors will be able to act legally for the estate. They may serve a Notice to Quit on the landlord to end the tenancy or receive a Section 21 Notice if served by the landlord. As a landlord, you should ask for evidence that those who are acting for the estate of the tenant do actually have the legal authority to do so.
Ending the Tenancy
In most case the landlord and the representative of the tenant will arrange a consensual end to the tenant, usually by drafting a deed of surrender which will cover what is agreed by both parties to bring the tenancy to an end. Reasonable time should be given to allow the property of the tenant to move out.
This should also be discussed between the landlord and the representative of the tenant. A landlord should deal with such person as if they were the tenant and make sure what is agreed regarding the deposit is evidenced in writing. If there is a deposit dispute it would be dealt with in exactly the same way requiring evidence of check in and check out inventories from both sides.
I have had one tenant pass away in a property and it was incredibly sad. Her family and I, through Collette at Abode, liaised and we gave them time to clear the property and the tenancy ended at the end of the month after her passing. It was a very straight forward situation with very clear communications, however it was still very hard for all involved.
If you need help with a difficult situation like this or you have experienced something similar then I would love to hear from you.