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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 71057
Experience:  Over 5 years in practice.
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I have a rented property. The tenant has messed me about since

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I have a rented property. The tenant has messed me about since last September and allegedly moved in in December. She is now two months in arrears and hasn't actually ever moved in. She said she was moving in yesterday but hasn't. Can I repossess my house without going through the section 8 process as I am not exactly making anyone homeless?
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Is this an assured short hold tenancy agreement?
Customer: replied 4 years ago.
Yes it is.
How do you know she hasn't moved in please?
Customer: replied 4 years ago.
The Estate Agent visited after 48 hrs notice last month and a neighbour today.
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 a possession order. You will need to wait for the arrears to rack up and then serve the proper notices. You will need to serve a S21 and S8 notices and let them expire.

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 4 years ago.
Thank you Your response has given me more faith in my estate agent who do after all know what they are doing. Now i have non whatsoever in the law the tenant seems to have all the rights. I could understand it more if she lived there! I had to retire on the grounds of ill health after 33 years of hard work and I put my lump sum towards a buy to let mortgage with the hope of enhancing my pension. I will now let my estate agent deal with it & follow the letter of the law as I've always been a law abiding citizen. However I feel it's totally unjust and it's making my condition worse. Sorry to rant I know it's not your fault.
Oh, yes it is outrageously unfair.

The law is heavily biased in favour of the tenant.

You can still make money but it is unfair.
Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 4 years ago.
Morning sorry to be a nuisance but I've just read through my questions and your advice,again. Not sure if I made it totally clear that there's actually no furniture in the property. Dies that make any difference? She hasn't actually ever moved in. It's a total mystery. She has also made my insurance void as I didn't know it was unoccupied. I've had another sleepless night I just want this sorted.
Well, only in that it supports your argument of abandonment but the problem is that you don't want her turning up in a week and saying that you didn't give her long enough to move in so you need to use the notices.