Background

Where a property has been abandoned by a tenant under an assured tenancy or an assured shorthold tenancy, the landlord, or a receiver acting as agent for the landlord, must currently terminate the tenancy by serving either a s.8 or s.21 notice on the tenant and waiting for the notice to expire. If after expiry of the notice the landlord is confident that there is no one living at the property they can take the property into possession. Where there is any doubt as to whether the property has indeed been abandoned, a court order would usually be obtained granting possession, a process which can take several months.

Section 57 of the Housing and Planning Act 2016 (the Act) has created an alternative abandonment procedure where a court order is not required. When this legislation comes into effect the alternative process will give the landlord all the protection of a court order. Whilst it will be substantially quicker than having to obtain a court order, there are strict provisions regarding the notices that will need to be served and a period of 2 months will still need to elapse before posserssion can be taken with the security of the Act. Accordingly, we suspect that existing practices may well prevail with an acceptance of the risks involved..

Conditions to using the s.57 procedure

There will be three conditions for use of the new s.57 procedure:

  • The property must be in England. There are no comparable provisions which operates in Wales;
  • The tenant must not have paid the rent for two consecutive months where the rent is payable monthly;
  • The landlord must have given three warning notices on the tenant regarding the abandonment

The warning notices

The warning notices must state that the landlord believes the property has been abandoned and require the tenant or occupier to respond in writing. The notices must also state that in the event that no response is received from the tenant, the landlord will be able to terminate the tenancy eight weeks after the service of the first notice. The Act provides that regulations may be introduced setting out a prescribed form of the notice. To date, no regulations have been made.

The first notice can be served even if the tenant is less than two months in rent arrears. There are a number of different methods of service, however, the best option is likely to be by posting the notice to the property address.

The second notice needs to be served between 2 and 4 weeks after the first notice. Again, this can be served by post to the property address.

The final notice must be fixed to a conspicuous part of the property not less than 51 days after service of the first notice and must remain in place for 5 days.

Once the 8 week period has elapsed from service of the first warning notice and providing the tenant has not responded, the landlord is entitled to take possession. Note that the tenant has a remedy available to apply to the County Court for re-instatement [of the tenancy?]for up to six months if they can demonstrate that they have a good reason for not responding to the warning notices.

When is the new procedure going to be available?

The Housing and Planning Act 2016 has been in place since May 2016, however, secondary legislation needs to be made by the Secretary of State to bring the new abandonment process into effect. At this time there is no indication when the process might become law, however, if and when the provisions become active we will provide further updates.

Current practice

Currently, where a landlord or receiver are confident that the property has been abandoned, they will fix an abandonment notice to the property for 7 days, and where no response is received, will take possession. A decision to take a property into possession in this manner should be undertaken cautiously as there is some risk that the tenant may still be in occupation. The provisions of the Act formalise the abandonment process and provide some protection, however, the service of the warning notices are onerous. Often where a property is abandoned, taking possession is time critical in order to ensure the security is protected. In reality, the risks presented by the current abandonment process are significantly reduced where sufficient property checks and notices have been displayed and it is likely landlords and receivers will continue to favour the current process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.