A member recently called the Landlord Advice Team with a query about a tenant who had left their property without giving written notice or returning the keys.
Despite the tenant giving verbal notice to the landlord, the landlord knew that notice must be given in writing. They had tried to call the tenant numerous times to ask for the keys to be returned, but the tenant was not returning any of his calls.
Understandably, the landlord wanted to gain possession of the property, so that he could re-let it as quickly as possible. He wanted to understand what legal process he should follow to gain access to the flat.
Our advisor started off by reminding this landlord that in order to gain access to the property, they are legally required to give the tenant 24 hours written notice beforehand.
This still applies even if the tenant has seemingly left the property, because they still have the keys. If the tenant does not come back to the landlord to give permission within that time, then the landlord can let themselves in, but they must proceed with caution. For example, its always good to take a witness.
The member raised the point that they did not know the tenants’ new address in which to send the written notice to.
Our advisor clarified that this written notice should be posted to the property address that the tenant is still in, in the tenancy, since this is the only address that the landlord has for them.
The conversation then moved on to how the landlord would be able to legally gain back possession of their property.
Our adviser informed this landlord that they had two options. Either to try and contact the tenant again asking for the keys back, reminding the tenant that untill the keys are returned they will still be charged rent, council tax and any other bills associated with the property.
The second option would be to serve notice.
The advisor then stated that the landlord could potentially face a prison sentence if they unlawfully evicted the tenant, as either the tenant or the council would be able to pursue the landlord for this, which is why it is important that the landlord contacts the tenant urgently or serves the correct notice.
The landlord explained that the tenant in question had stopped paying their rent and so was in arrears.
Our adviser then advised the landlord that they should serve a Section 8 notice if they are in rent arrears, and if not then a Section 21 notice can be served. A section 8 notice can be served once the tenant is in 8 weeks or 2 months of rent arrears during the fixed term or outside a fixed term.
Tenancy deposit was not protected in time
The member then shared that the tenancy deposit in this case had been protected, but this was a week after the 30-day period that landlord’s must protect their deposits within legally.
The member wanted to understand whether this would affect their ability to serve a Section 8 notice against the tenant and gain a successful possession in court.
Our advisor was able to inform the landlord that they should make every effort to return the deposit, even if this means posting it to an empty property.
This is because the tenant was not in significant rent arrears, and the risk is that a judge would not grant possession because the tenant could ask for up to three times the penalty for late protection of the deposit, to be taken into consideration during a Section 8 court hearing.
The landlord should also evidence that they have returned the deposit to the tenant, for example they could film or take photographic evidence of the deposit being posted through the door of the property.
Landlords have 30 days to protect the deposit from receipt, in a deposit scheme once the tenancy has begun, and serve the relevant paper work within this timescale.
Our member was satisfied that they had received all the information they needed regarding their problem, and thanked the advisor for their time.
Advice Team Manager Rupinder Aujla said: “We are always happy to assist members who are unsure how to get their properties back legally.
“Had this member not called the advice team and changed the locks without the proper advice, then this member could have faced a larger penalty for illegal eviction and not just the up to 3 times penalty for not protecting the deposit within 30 day”
Find out more
The RLA run a range of courses on Gaining Possession nationwide, including in London, Manchester, Sheffield and Leeds. For more please see our website.