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Recovering Abandoned Premises: A new procedure for Assured Shorthold Tenancies

Terrace houses Print publication

19/06/2017

Part 3 of The Housing and Planning Act 2016 (HPA 2016) is expected to come into force in October 2017 and will provide a new procedure whereby private landlords can lawfully recover certain abandoned residential premises.  Housing Litigation and Management specialist and Walker Morris partner Karl Anders explains.

Unlawful eviction v recycling abandoned premises

Currently, landlords who wish to recover “abandoned” premises have to tread a difficult line. The Protection from Eviction Act 1977 provides that a landlord who recovers possession of premises which are occupied as a dwelling without a court order will commit a statutory tort and criminal offence, unless the landlord can satisfy the statutory defence i.e. that the landlord reasonably believed that the occupier had ceased to occupy.   Establishing such a defence is fact dependant and also subject to judicial interpretation of the factual matrix. Consequently, most responsible landlords currently take the safer approach and incur the time and cost of issuing proceedings and obtaining a court order before recovering possession.

With a view to providing an alternative option for landlords, sections 57 – 61 HPA 2016 will introduce the new process outlined below.

New procedure

A private landlord (including private registered providers of social housing [1]) who believes that premises in England have been abandoned, will be able to give a tenant notice which brings an assured shorthold tenancy to an end, if the following conditions are met:

  • there are 8 weeks’, 2 consecutive months’, 3 months’ or 1 quarter’s rent arrears outstanding (depending on the frequency of rent payment under the tenancy)
  • the landlord has given the tenant, occupier and any deposit-payer two prior warning notices and also a third warning notice has been fixed to a conspicuous part of the premises [2] and
  • no tenant, occupier or deposit-payer has responded in writing to any of the notices before the date specified therein.

In case the premises have not, in fact, been abandoned, section 60 HPA 2016 allows a tenant to have their tenancy reinstated by court order if they can satisfy a County Court Judge that they had “a good reason” for failing to respond to notices and if they apply to the court within 6 months of the date on which the tenancy was brought to an end by operation of the notices.

WM Comment

When it comes into force this new process will no doubt be welcomed by landlords and also by their managing agents. However, care will still need to be taken to ensure that the statutory process is correctly followed so as to provide the landlord with protection against an unlawful eviction action. This will not only include correctly serving notices containing the required statutory content but also keeping appropriate records to enable proof of service to be provided, if required, at a later date.

The six month reinstatement right will also be of concern to landlords. There is obvious potential for difficulties to arise in cases where the property has been re-let and the former tenant makes an application for reinstatement to the Court. Thankfully, the legislation does provide for some judicial latitude and common sense as the wording states that the Court “may make” (i.e. rather than it shall make) a reinstatement order in circumstances where it finds that tenant can satisfy the “good reason” test.

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[1] section 62
[2] Section 59 contains detailed provisions as to the content of the “warning notices” and the Secretary of State has the power to introduce Statutory Regulations which set out the form in which the third warning notice must be given.

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