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Ending Tenancies
Ending a tenancy agreement
The conditions concerning the ending of a tenancy agreement depend on
the type of agreement in place and whether both parties agree.
If both parties agree
It is possible to end the agreement at any time if both parties agree.
This is called 'surrender'. There are two ways that surrender of a
tenancy can occur: by ‘operation of the law’ or by a ‘declaration of
surrender.
For an agreement to be legally ended both sides must agree, and it's
always best to put what's been agreed in writing so everyone knows where
they stand. If a joint tenancy is in place, all the joint tenants and
the landlord must agree to the surrender.
When a tenant has legally surrendered the tenancy, then the landlord has
the right of possession of the property under Section 5 of the Housing
Act 1988.
The landlord needs to be sure that the agreement has been ended
properly, before re-letting the property. If the landlord takes
possession of the property when the tenant has not ended the agreement
properly and both parties have not agreed, then the landlord could be
accused of unlawful eviction.
Surrender by Operation of the Law
This involves the tenant giving up their occupation of the property to
the landlord and the landlord accepting this. This may involve the
tenant handing over the property’s keys to the landlord and the landlord
accepting that the agreement is over and that they now have possession.
The tenant may remove furniture and their belongings from the property
to show the landlord that they are in agreement with ending the tenancy.
Declaration of Surrender
This type of surrender involves the tenant signing a ‘Declaration of
Surrender’. This written document then acts as proof that the tenant has
given up possession of the property to the landlord.
Fixed and periodic agreements
A fixed term agreement is for a fixed period agreed in the rental
agreement (usually six months or one year). A tenancy could be fixed
term even if rent is paid each week/month. If the fixed term ends and no
new tenancy agreement is drawn up then the tenancy agreement becomes
periodic.
A periodic agreement rolls from week to week, or month to month. These
include tenancies that were originally for a fixed term that have ended
and no new fixed term agreement has been drawn up.
Ending a fixed term tenancy agreement
Many fixed term agreements contain a 'break clause', which allows a
tenant to end the agreement before the fixed term runs out. It is
important for landlords to be aware of the implications of including
such a clause. If the agreement doesn't include such a clause then
a tenant cannot end the tenancy early without the landlord's agreement.
If the tenant leaves anyway they can still be liable for the rent to the
end of the period. If it does include a break clause, the tenant will be
able to leave early provided they follow the procedure laid out in the
clause, for example the amount of notice they must give.
If the agreement is for a fixed term, a tenant has the right to leave on
the last day of the fixed term without giving any notice. If they
stay even one day over the fixed term, they will automatically become a
periodic tenant and will have to give proper notice unless the landlord
agrees to them leaving.
A landlord can end a tenancy at the end of the fixed term (usually 6
months) provided that the tenant has been given two months written
notice in the form of a
section 21 notice to quit.
It may be possible for a landlord to end a fixed tenancy early if
certain grounds have been met. For further information see
Ending a tenancy agreement early.
Ending a periodic tenancy agreement
If the agreement is periodic (rolling from week to week or month to
month), a tenant will normally have to give at least four weeks' notice
to end it, or a calendar month if it is a monthly tenancy. The notice
must be in writing and must end on the first or last day of the tenancy,
unless the tenancy agreement allows it to be ended on a different day.
If rent is paid less frequently a tenant has to give at least one rental
period of notice. So if rent is paid every two months, two months notice
would be required.
A tenant may choose to end a periodic tenancy be issuing a valid notice
to quit to the landlord. Once the notice expires then the tenant’s
agreement will have ended.
Ending a tenancy agreement early
A landlord can only end a tenancy before the fixed term is up if the
tenant has breached the tenancy agreement. If this has happened then the
landlord must make an application to a court for possession.
Before applying for possession a landlord will need to serve a
section 8 notice to quit on
the tenant as this will form part of the evidence that the court will
insist on seeing before granting a possession order. A section 8 notice
states that the landlord intends to seek possession of the property and
also states the ground or grounds on which possession is sought. Without
a valid notice a landlord will not get possession.
The amount of notice required to be given to the tenant will depend on
the grounds under which possession is sought. For further information on
this topic see the page on
issuing a section 8 notice.
What if the tenants refuse to leave?
If the tenants refuse to leave at the end of a fixed term tenancy then a
landlord will need to make an application to a court for possession.
Before applying to the court for possession a landlord must first serve
a
section
21 notice to quit on the tenants giving them a minimum of two
months' notice.
What if the tenants just leave?
Walking away or posting the keys through the letterbox is called
'abandonment' and will not end a tenancy agreement. The agreement will
continue even though the tenants have left and the landlord has the
right to continue to charge rent.
A landlord can apply for a court order to make tenants pay what is owed.
It should be noted that if the property has since been let out rent can
only be claimed for the period of time before a new tenant has moved in.
The period of time that rent can be charged after a tenant leaves
depends on the type of agreement.
Fixed tenancy
In a fixed term agreement rent can continue to be charged up until when
the term ends.
Periodic tenancy
If the agreement is periodic, rent can be charged up until the time when
the agreement would have ended had the tenant given the agreed period of
notice.
What is Abandonment?
If a tenancy agreement has not been legally ended or surrendered,
but the tenant appears to have left the property during the tenancy,
then this is known as abandonment.
Tenants sometimes choose to leave a property for long periods of
time, but if they are planning to be away from the property for more
than two weeks they are required to inform the landlord. This is often
stated in the tenancy agreement, so the tenant would be breaking the
terms of the tenancy, if they failed to inform the landlord they were
going to be away from the property.
A landlord must be sure that the tenant has surrendered the
tenancy by abandonment, before re-letting the property or changing the
locks. The best way to be sure of this is by contacting the tenant and
ensuring they confirm they are abandoning the tenancy by a written
notice to quit. Retuning the keys is a clear indication from the tenant
that they are agreeing to surrender the tenancy. If a tenant has not
ended the agreement, the landlord is responsible to ensure their
belongings are looked after if they have been left in the property.
If the landlord is unsure as to whether the tenant is living in
the property or not, it is best to end the tenancy by applying for a
possession order, rather than run the risk of having unlawful
eviction proceedings put forward. A tenant may return and press charges
of illegal eviction under the Protection from Eviction Act 1977. If the
landlord has re-let or repossessed the property they also run the risk
of being charged with breaching the terms of the tenancy agreement. The
safest option, for landlords when abandonment seems to have occurred is
to get a possession order from the courts, especially if a tenant has
left their belongings or furniture in the property.
A landlord must make the necessary checks to confirm that
the tenant has abandoned the tenancy. It could be that a tenant is on a
long holiday, is in hospital or undergoing a short prison sentence.
In order to gain evidence as to whether or not abandonment has
occurred the landlord can make enquires by:
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Speaking to the neighbours.
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Checking to see if the keys have been returned.
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Finding out if the rent is still being paid.
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Contacting a relative for information on the tenant’s
whereabouts.
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Finding out if belongings or furniture have been removed from the
property.
If after trying to gather information on the tenants whereabouts
and whether or not abandonment has occurred, it appears the property has
been abandoned then the landlord is only able to enter the property
under certain circumstances. If the landlord feels that the property is
in an insecure condition, or that electrical or gas appliances could
cause damage or danger to the property then they may have a case for
entering the property. If this is the case, it is advisable to have an
independent witness who is happy to confirm the condition of the
property and the situation in writing. The landlord is also required to
place a notice on the door of the property if the locks have been
changed (for security reasons) advising the tenant where they can
contact the landlord to gain a new key to the property.
Illegally evicting a tenant is a criminal offence, so landlords
need to be careful before repossessing or re-letting a property and take
the necessary precautions.
Notice of Abandonment
If a landlord is almost sure abandonment has taken place, then
they are advised to place a notice on the door of the property informing
the tenant of their intention to regain possession of the property.
The notice should include the following information:
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A statement from the landlord of the belief that the property has
been abandoned and the relevant dates.
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The landlord’s contact details and full name.
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The tenant’s name and address of the property.
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A statement asking any persons who know of the tenant or the
tenant’s whereabouts to inform the landlord.
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A date whereby if the tenant has not made contact with the
landlord then it will be presumed that the tenancy has been
surrendered.
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A statement which recommends that the tenant seeks legal advice
in relation to their tenancy.
If the landlord puts up the notice with a witness present (which
is recommended) then the witness’s name should also be recorded on the
notice.
A landlord may also decide to take photographs of the notice as
proof that the tenant has been informed of the intention to regain
possession of the property.
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