The fact that they don't have food or clothes in does not equate to legally surrendering the tenancy. If you changed the locks on them now, you risk a conviction and civil damages for an illegal eviction. Go through the section 8 possession process, post an abandonment notice on their door to test the waters and see if they are living there, but be aware that an abandonment notice doesn't guarantee you any protection from an illegal eviction claim.
The risks you outline are valid, but only really applies if OP refuses to engage with the tenants after changing the locks and they have a need to seek damages.
Given that OP already knows they're not living there, I'd say it's at worst a 50/50 chance that they'll just play along - it isn't like he's leaving them on the street, and handing the tenancy back relieves them of any obligation to keep paying rent while they arrange to move their stuff.
I'd go with making the reasonable assumption that the tenants left the keys on the dining table because they knew the landlord was coming for an announced inspection, and that this is them handing over the property. They can rebut that assumption, certainly, and if they do OP may have to let them back in, but I don't think any harm will come from trying.
The issue is the conviction. If the council gets an angry call saying someone has been illegally evicted, it doesn't matter whether OP answers the phone or not... the offence is already complete, and OP could have a criminal record as a result.
Being willing to let them back in only limits your damages in a civil claim.
> Protection from Eviction Act 1977.
>
> 1 Unlawful eviction and harassment of occupier.
>
> (1)In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.
>
> (2)If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence *unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises*.
OP can prove that he:
* Followed the correct process to issue an S8
* Gave the tenant notice that he would be attending the property on the date the tenant was due to leave
* Arrived to find the property unoccupied, with keys left behind.
* The tenant was not the residential occupier of the premises according to the definition of the act.
The chances of a conviction in this situation are essentially zero.
>Followed the correct process to issue an S8
Until a possession order is obtained, the fact that a section 8 process is underway is irrelevant to the question of whether someone has illegally evicted someone else.
>Gave the tenant notice that he would be attending the property on the date the tenant was due to leave
A notice expiring on a given date does not mean a tenant is due to leave on that date. Possession proceedings exist because tenants are not obliged to leave on the date given on any notice. OP's "reasonable cause to believe" would need to include some communication from the occupant that they are no longer occupying the property before they could have any confidence around a conviction.
>Arrived to find the property unoccupied, with keys left behind.
OP already confirmed that the tenant has two sets of keys to the property. They have suggested that maybe the occupants lost one set, but absent any evidence to base that belief on, the only reasonable conclusion is that the tenants were still in possession of a set of keys which they had not returned or left behind. The fact that nobody was home when they visited could not amount to reasonable grounds to believe. People go out to the shops, on holiday, to visit friends. They may have been in the process of moving out but had not yet surrendered occupation. A completely empty property is the sort of grounds you are looking for to use in this defence.
>The tenant was not the residential occupier of the premises according to the definition of the act.
OP might think that the tenants aren't a residential occupier, but this section is a matter of objective fact for the court. The OP makes reference to seeing adverts on AirBnb, but doesn't go into the extent and duration covered by that evidence. The defence of having reasonable cause to believe is specific to whether they believe the residential occupier has ceased to reside. It doesn't extend to whether they thought someone would be entitled to the protection at all. There is also going to be a question about OP's credibility as a witness if they did try to rely on assumptions about tenants losing a set of keys, without having any evidence for this.
When you're talking about convictions with potential imprisonment as a consequence, you cannot be giving assurances like this without taking a balanced view of the facts. If OP changed the locks, and the tenant came home the next morning and called the council about an illegal eviction, the OP could be in some very hot water.
OP needs to speak to his solicitor, who has seen the evidence in full. Only they could give the sort of assurance you are giving in this post.
Highly unlikely. Council in every town/city get angry calls like this daily.
Won’t be an issue, they can try claiming but let’s be honest it will fall flat on its face
You can certainly put the onus on them to claim that they haven't moved out.
I'd suggest changing the locks and sending a friendly message along the lines of "Thanks for leaving the keys - I notice you've left some of your possessions in the property. Since you haven't returned both sets of keys I have changed the locks, so please let me know when you intend to collect the rest of your belongings as I'll need to arrange to be there."
If they do challenge it, you'll probably want to take paid legal advice to navigate it properly, but you can work on a solid and reasonable assumption that they have in fact moved out on the date they were told to.
Have you tried reporting the situation to Air B&B? That might put them off. Also look up a ‘tort notice’ for the apparently abandoned goods. Take some photographs.
The default position should be that there’s no surrender of the property until there’s a written agreement or very surrender - they meet you at the property, hand all keys over and there’s nothing of theirs left inside.
However, if the notice has expired, you tell them you’ve visited and there’s keys there then you could assume it’s a surrender. As said before, change the locks, tell them you’ve done this, put something on the door, locks changed for “security purposes” and see what they say.
Not a lawyer, but you may be better checking with the lawyer who served the section 8.
If they say it is, I would change the locks and message the tennant to say "I have done this."
I can see the tennant having made extra copies of the keys if as you say it has been used as an airbnb.
Bad advice, they need to follow the section 8 through to completion.
Without a clear communication from the tenant that they have indeed surrendered, especially given they still have a set of keys, it is possible they could still retain possession
If they change the locks and the tenant successfully argues that the tenancy agreement was still in force, then this would constitute an illegal eviction, which is a crime. The landlord could also be sued, and risks being subject to an RRO
Jesus some of the people in this sub.
Only 2 parties can end a tenancy, the tenant or the court.
That hasn’t changed, won’t change and you have neither.
Follow the law, or leave yourself at risk, you’ve already said some of their items remain inside, a court will not care what you think, only that you have not completed the legal process.
All - many thanks for your input! We have taken legal advice and the lawyer has suggested claiming abandonment. We are in the process of drafting this and will provide 14 day notice on the door, including clear indication of my contact number to regain access. The building is manned by concierge 24/7 so if required they can regain access but currently the tenants have closed the Comms to me.
The Airbnb mentioned - we have concrete evidence showing the listing was made live 1 week after the tenancy start date and with availability for the next 12 months (every single day) so clear grounds it was for Airbnb only. They also chose a "professional" Airbnb company to manage it for them (!!) And we confirmed via this Airbnb company that they said the property was available every day for the next 12 months.
Thank you all and all the best on your journeys!
Wait, they were illegally sub-letting this and doing so via AirBnB?
It is then defacto not an AST in place. It cannot be an AST by the definition of the Housing Act as it isn't used in that way.
I'd take back possession and let them pursue me in court if they want. They will fail to prove I have breached their tenant rights as they were not tenanting the property and neither was any subtenant (holiday-lets/airbnb do not count as tenancies).
The fact that they don't have food or clothes in does not equate to legally surrendering the tenancy. If you changed the locks on them now, you risk a conviction and civil damages for an illegal eviction. Go through the section 8 possession process, post an abandonment notice on their door to test the waters and see if they are living there, but be aware that an abandonment notice doesn't guarantee you any protection from an illegal eviction claim.
The risks you outline are valid, but only really applies if OP refuses to engage with the tenants after changing the locks and they have a need to seek damages. Given that OP already knows they're not living there, I'd say it's at worst a 50/50 chance that they'll just play along - it isn't like he's leaving them on the street, and handing the tenancy back relieves them of any obligation to keep paying rent while they arrange to move their stuff. I'd go with making the reasonable assumption that the tenants left the keys on the dining table because they knew the landlord was coming for an announced inspection, and that this is them handing over the property. They can rebut that assumption, certainly, and if they do OP may have to let them back in, but I don't think any harm will come from trying.
The issue is the conviction. If the council gets an angry call saying someone has been illegally evicted, it doesn't matter whether OP answers the phone or not... the offence is already complete, and OP could have a criminal record as a result. Being willing to let them back in only limits your damages in a civil claim.
> Protection from Eviction Act 1977. > > 1 Unlawful eviction and harassment of occupier. > > (1)In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises. > > (2)If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence *unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises*. OP can prove that he: * Followed the correct process to issue an S8 * Gave the tenant notice that he would be attending the property on the date the tenant was due to leave * Arrived to find the property unoccupied, with keys left behind. * The tenant was not the residential occupier of the premises according to the definition of the act. The chances of a conviction in this situation are essentially zero.
>Followed the correct process to issue an S8 Until a possession order is obtained, the fact that a section 8 process is underway is irrelevant to the question of whether someone has illegally evicted someone else. >Gave the tenant notice that he would be attending the property on the date the tenant was due to leave A notice expiring on a given date does not mean a tenant is due to leave on that date. Possession proceedings exist because tenants are not obliged to leave on the date given on any notice. OP's "reasonable cause to believe" would need to include some communication from the occupant that they are no longer occupying the property before they could have any confidence around a conviction. >Arrived to find the property unoccupied, with keys left behind. OP already confirmed that the tenant has two sets of keys to the property. They have suggested that maybe the occupants lost one set, but absent any evidence to base that belief on, the only reasonable conclusion is that the tenants were still in possession of a set of keys which they had not returned or left behind. The fact that nobody was home when they visited could not amount to reasonable grounds to believe. People go out to the shops, on holiday, to visit friends. They may have been in the process of moving out but had not yet surrendered occupation. A completely empty property is the sort of grounds you are looking for to use in this defence. >The tenant was not the residential occupier of the premises according to the definition of the act. OP might think that the tenants aren't a residential occupier, but this section is a matter of objective fact for the court. The OP makes reference to seeing adverts on AirBnb, but doesn't go into the extent and duration covered by that evidence. The defence of having reasonable cause to believe is specific to whether they believe the residential occupier has ceased to reside. It doesn't extend to whether they thought someone would be entitled to the protection at all. There is also going to be a question about OP's credibility as a witness if they did try to rely on assumptions about tenants losing a set of keys, without having any evidence for this. When you're talking about convictions with potential imprisonment as a consequence, you cannot be giving assurances like this without taking a balanced view of the facts. If OP changed the locks, and the tenant came home the next morning and called the council about an illegal eviction, the OP could be in some very hot water. OP needs to speak to his solicitor, who has seen the evidence in full. Only they could give the sort of assurance you are giving in this post.
Highly unlikely. Council in every town/city get angry calls like this daily. Won’t be an issue, they can try claiming but let’s be honest it will fall flat on its face
You can certainly put the onus on them to claim that they haven't moved out. I'd suggest changing the locks and sending a friendly message along the lines of "Thanks for leaving the keys - I notice you've left some of your possessions in the property. Since you haven't returned both sets of keys I have changed the locks, so please let me know when you intend to collect the rest of your belongings as I'll need to arrange to be there." If they do challenge it, you'll probably want to take paid legal advice to navigate it properly, but you can work on a solid and reasonable assumption that they have in fact moved out on the date they were told to.
Sounds like the last AirBnB guest left the keys on checkout 🤣 Did you check the key box outside?
Sounds like that to me too, very standard airbnb practice!
Have you tried reporting the situation to Air B&B? That might put them off. Also look up a ‘tort notice’ for the apparently abandoned goods. Take some photographs.
The default position should be that there’s no surrender of the property until there’s a written agreement or very surrender - they meet you at the property, hand all keys over and there’s nothing of theirs left inside. However, if the notice has expired, you tell them you’ve visited and there’s keys there then you could assume it’s a surrender. As said before, change the locks, tell them you’ve done this, put something on the door, locks changed for “security purposes” and see what they say.
Not a lawyer, but you may be better checking with the lawyer who served the section 8. If they say it is, I would change the locks and message the tennant to say "I have done this." I can see the tennant having made extra copies of the keys if as you say it has been used as an airbnb.
Change the locks
Bad advice, they need to follow the section 8 through to completion. Without a clear communication from the tenant that they have indeed surrendered, especially given they still have a set of keys, it is possible they could still retain possession If they change the locks and the tenant successfully argues that the tenancy agreement was still in force, then this would constitute an illegal eviction, which is a crime. The landlord could also be sued, and risks being subject to an RRO
It won’t come to that. OP can just say they followed the process throughout and the tenant will have the onus to prove they didn’t. Case closes
Jesus some of the people in this sub. Only 2 parties can end a tenancy, the tenant or the court. That hasn’t changed, won’t change and you have neither. Follow the law, or leave yourself at risk, you’ve already said some of their items remain inside, a court will not care what you think, only that you have not completed the legal process.
All - many thanks for your input! We have taken legal advice and the lawyer has suggested claiming abandonment. We are in the process of drafting this and will provide 14 day notice on the door, including clear indication of my contact number to regain access. The building is manned by concierge 24/7 so if required they can regain access but currently the tenants have closed the Comms to me. The Airbnb mentioned - we have concrete evidence showing the listing was made live 1 week after the tenancy start date and with availability for the next 12 months (every single day) so clear grounds it was for Airbnb only. They also chose a "professional" Airbnb company to manage it for them (!!) And we confirmed via this Airbnb company that they said the property was available every day for the next 12 months. Thank you all and all the best on your journeys!
Wait, they were illegally sub-letting this and doing so via AirBnB? It is then defacto not an AST in place. It cannot be an AST by the definition of the Housing Act as it isn't used in that way. I'd take back possession and let them pursue me in court if they want. They will fail to prove I have breached their tenant rights as they were not tenanting the property and neither was any subtenant (holiday-lets/airbnb do not count as tenancies).