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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69252
Experience:  Over 5 years in practice
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My tenant has not paid his rent which is now overdue by 8 days.

Customer Question

My tenant has not paid his rent which is now overdue by 8 days. He has an Assured Shorthold Tenancy Agreement for 12months ending in Sept.
I've written 3 letters advising rent needs to be paid and have sent a letter to his guarantor.
The tenant's phone is going straight to voicemail and the last message I had from him was at 7am on Tuesday advising that the rent will be paid. I've not heard from him since.
I visited the property and it looks like he has not been there for a few days.

Where do I stand legally as the landlord and at what point can I take possession of the flat if he has left the property. I'm not sure if he has received the letters if he's not been there so when would any notice period to commence?

Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.

Thank you for your question. My name is ***** ***** I will try to help with this.

What is it that makes it look as though he is not there?

Customer: replied 2 years ago.

Hi, I went to property on Wednesday am and found quite a lot of post on floor from quite a few days.Appreciate that he may have been away - holiday etc - but my concern is that he would not have received any of my letters. I contacted him on Saturday 7th June re late payment he replied saying he'll pay Monday,again no payment. I contacted him again Monday evening he replied Tuesday 7am to say he'll pay on that day and not heard from him since. I posted a letter which he would have rec'd Wednesday, and another letter hand delivered and one to his guarantor. Mobile phones are all going to voicemail.


Expert:  Jo C. replied 2 years ago.
Don't worry about whether he's receive the notice. That is his problem. He should have kept tabs upon his post.

How old are the letters roughly?
Customer: replied 2 years ago.

To be honest a lot of them were bank, water bills, tv licence etc so no post mark that I could see. There was one dated 9th June.

Expert:  Jo C. replied 2 years ago.
Thanks for that
You have two options really and neither of them are really very fair. Unfortunately the law is very heavily biased in favour of tenants basically because of the activities of a notorious landlord in the 1960s. 

The first option is obviously just to seek an accelerated possession order. You will need to serve a S21 notice and let it expire though.

 I realise he may not have got it but thats his problem. He should have kept tabs upon it and you cannot do any more than what is humanly possible.

The second though is this. It does have risks so consider carefully. Where a property has been abandoned there is a legal doctrine of implied surrender. Quite a lot of agents and some solicitors seem to think this is a simple way to bipass a possession order but I have to say that I disagree.

To serve a notice of abandonment you need to do this to the letter. Print up a notice that says something like 'We believe that you are no longer in permanent residence at this address. If that is not the case then please make contact with me on X number at your earliest convenience and, in any event within 7 days.' Make sure it is dated prominently. Laminate the notice. Put the laminated notice on the front door of the property. Take photographs of it there and of yourself putting it on there.

There are some agents who take the view that within 7 days and no contact you can just get back in. Quite a lot of agents think 24 hours is sufficient.

Personally I think you need to do more work than that to protect yourself. 

Implied surrender is all very well but its the actions of the tenant that creates implied surrender not the actions of the landlord. I have to say that I'm not sure that an absence from the property alone is sufficient to prove surrender. I have been away from my house for more than 7 days at a time over Christmas, Easter, holidays, cases where I had to stay elsewhere. It doesn't mean I'm not living here.

Thats not to say that you shouldn't do this but just that you need also to look for more evidence. Genuine abandonment is usually signed by the tenant by the removal of his possessions, leaving the keys behind etc. Potentially leaving the house insecure. If you have evidence of that then take photographs and you can repossess without an order.

There is an argument that if there are genuine signs of abandonment you can repossess without an abandonment notice but I wouldn't suggest the risk. As you know unlawful eviction is a criminal offence and I am primarily a criminal lawyer. There are many problems in criminal law but an abundance of evidence to prove that an offence has not been committed is not one we should cry about.

Hope this helps. Please let me know if you need more information
Jo C., Barrister
Category: Law
Satisfied Customers: 69252
Experience: Over 5 years in practice
Jo C. and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you for your help this is all new to me.

So in summary how long do I need to wait to back from either the tenant or guarantor?

Or can I serve a section 21 notice and does this override my previous letters?


Expert:  Jo C. replied 2 years ago.
I thought you already had served notice on him?
Customer: replied 2 years ago.

I wrote saying the rent is over due and to pay by 17th June.I advised his guarantor that the rent has not been paid.

I've not specifically served a section 21notice.

Expert:  Jo C. replied 2 years ago.
You should really do that and serve it at the property. That gives you options even if abandonment fails.

How long you should wait is always a risky question. My own personal view would be that a month would be the safest option.

Make sure you take the steps above.

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