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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69527
Experience:  Over 5 years in practice.
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Hi My tenant is in jail and his brother is looking after the

Customer Question

Hi
My tenant is in jail and his brother is looking after the property but not living in it. At the weekend the brother had a party at the property and upset the neighbours who are having a go at me. Can I change the locks and secure the property until the tenant is released or until I get a possession order. I will make keys available to the tenant when he is released. Any advice please
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
What type of contract is this?
How do you know the tenant is in prison?
Customer: replied 2 years ago.

AST

His mother has confirmed it.

Expert:  Remus2004 replied 2 years ago.
Have you seen any other evidence of it?
Customer: replied 2 years ago.

His mother confirmed it in an email

Expert:  Remus2004 replied 2 years ago.
Ok
So have you yourself seen any other evidence of it?
Customer: replied 2 years ago.

No not yet.

How can i find out if he is in jail?

If he is in jail can I change the locks?

Expert:  Remus2004 replied 2 years ago.
No. You cannot just go round there and change the locks easily. That is a criminal offence.
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.

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
Customer: replied 2 years ago.

I do not wish to reposes the property or end the tenancy at this time. I only want to secure it and stop it been used for parties and upsetting the neighbours. I have issued a section 21 notice. The property is in an area that have a high risk of been broken into and I also wish to instal a security camara in the property.

Expert:  Remus2004 replied 2 years ago.
That would not change your rights to enter I'm afraid.
This is an AST and you need to use the proper channels or rely on abandonment above.
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69527
Experience: Over 5 years in practice.
Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

Assured tenancies.

(1)A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—

(a)the tenant or, as the case may be, each of the joint tenants is an individual; and

(b)the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and

(c)the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.

As it is no longer his principal home has he ended the AST and if this is so why can I not take possession.

Expert:  Remus2004 replied 2 years ago.
Because that is unlawful eviction which is a criminal offence.

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