Ending the contract

The Act contains a process for properties which appear to be abandoned. Landlords who follow the process should find they are protected from claims for unlawful eviction. There is also a process to follow to deal with belongings left in properties which are recovered via the abandonment process.

The process is only available if the occupation contract requires the contract holder to use the property as their only or principal home.

The supplementary terms will impose that obligation for all secure, introductory standard and prohibited conduct standard contracts – the written statements should therefore reflect that and landlords will need to take care not to remove or alter the obligation.

Where any other type of standard contract is used the requirement will need to be added as an additional term.

The abandonment process itself is at section 220 of the Act and is fairly straightforward:

Landlord identifies property is possibly abandoned – at this point there needs to be sufficient evidence of potential abandonment for the landlord to “believe that the contract holder has abandoned”. The Landlord does not need to have carried out exhaustive enquiries (yet – read on).

Landlord serves a prescribed notice – in form RHW 27. It is essential the proper form is used. This notice advises the contract holder that the landlord believes the property is abandoned, and it requires the contract holder to inform the landlord within the warning period if the property is not. Lastly, it informs the contract holder that the landlord will serve a further notice to end the contract at the end of the warning period. The warning period is four weeks. A copy of the notice must also be served on any lodger or sub-contract holder.

The landlord must then carry out “such inquiries as are necessary to satisfy the landlord that the contract holder has abandoned the dwelling”.

Once those inquiries are complete, provided the landlord is satisfied that the contract holder has abandoned and presumably having had no response to the first notice, the landlord can then serve a second notice ending the contract. This time the form is RHW28. Again, it must also be served on any lodger or sub-contract holder.

The second notice ends the contract when it is given to the contract holder. The landlord does not need to seek a court order and it can simply recover possession.

The contract holder has six months from the second notice to challenge the landlord by an application to the court. The grounds for the application are (1) the landlord failed to serve RHW27, or failed to make the inquiries, (2) the contract holder had not abandoned, and there was a good reason for the failure to respond to the RHW27, or (3) the landlord did not have reasonable grounds to be satisfied that the contract holder had abandoned when the RHW28 was served.

If the court finds one those grounds is proven then the court can reinstate the contract, order the landlord to provide suitable alternative accommodation or make any other order it sees fit. Hence it is not necessary for a landlord to leave a property empty for six months after it is recovered.

Belongings left in the property

This is now covered by regulations which have been passed. The regulations are fairly brief and provide that:

Where the s220 procedure is followed, any belongings must be dealt with as the regulations provide.

The landlord must safeguard any belongings for a period of four weeks, but thereafter can dispose of them as the landlord sees fit.

The regulations do not specifically say that the landlord may sell them, but they do provide that the landlord can use the proceeds of disposal to pay for expenses incurred in safeguarding the property, and then to satisfy any rent arrears. Hence it must follow that the belongings can be sold.

The landlord does not need to safeguard property which is (1) perishable, (2) where safeguarding it would involve unreasonable expense or inconvenience and/or (3) where the value of the belongings would not exceed the amount which it would cost to safeguard them. In those cases, the landlord can dispose of the belongings as it sees fit.

At any time before the landlord has disposed, the contract holder, or anyone “who appears to have a right of ownership” may arrange for the goods to be delivered to them, in which case the landlord must relinquish them (but may do so on condition they are paid the expenses incurred in complying with the regulations).

It is worth noting that these regulations apply only where a contract is ended via s220 (the abandonment procedure) and not where it is ended in any other way. (So landlords will need a separate policy to deal with belongings where a contract holder has died, or where possession has been obtained via agreement or a court order).

Other points to be aware of

It is essential that the landlord carries out proper enquiries during the warning period. That is likely to include very similar enquiries to those which are considered now – including checking the rent payment history, inspecting the property, speaking to neighbours and checking the tenancy file. Other enquiries are also likely to be necessary.

It will be a supplemental term incorporated into occupation contracts (unless varied by agreement, or inconsistent with pre-Renting Homes terms), that contract holders must notify the landlord if a property has been, or is expected to be empty for a period of 28 days or more. If a landlord receives that notification then it is likely to indicate a property is not abandoned (unless of course it includes information that the contract holder does not intend to return). No notification yet a property still being apparently empty is likely to be part of a body of evidence that a property is abandoned but other evidence is also required.

The two notices can be served by any means permitted by the Act – including by delivery to the dwelling, (even if the contract holder is not apparently there). They can also be emailed if the contract holder has expressed a willingness to accept by email.

The word “abandoned” is not defined. It could mean the contract holder does not intend to occupy the property again, or it could require a landlord to satisfy itself that the contract holder has no intention to be a party to the contract again. If a contract holder is living elsewhere but seeking consent to transfer the contract to another party, or if the contract holder has left other occupiers in the dwelling have they truly “abandoned” it?

Your Questions Answered on Abandonment

Q If, at the end of the warning period, the landlord is satisfied that the contract-holder has abandoned the dwelling, the landlord may end the contract by means of giving the contract-holder a further notice, copies of which must be provided to any lodger or sub holder who lives in the dwelling – see s220. Does this mean anyone who’s left who isn’t a tenant can’t possibly have security of tenure in any way? Do copies need to be supplied to any adult occupier(s) left at the property that don’t fall into these categories?

> The obligation to provide copies of the notice to a lodger or sub-contract holder does not apply to anyone else in the property. However, the landlord may be wise to assume that a person in the property is a lodger unless it is clear they are not (especially where the contract is a secure one, where no landlord consent is required for the contract holder to have a lodger). Good practice would also suggest keeping in touch with the occupier. For further information about lodgers and sub-occupiers see – (add link to article on lodgers and sub-occupiers).

As far as we are aware at the moment, the Protection From Eviction Act 1977 will remain in force. As such, even if s220 ends the contract, if the property remains occupied, a landlord will need to take care to ensure that there is no breach of the 1977 Act which may still mean seeking a court order.

See also information below about s238 and the circumstances where a new contract may be implied.

Of course the fact that someone is in a property may affect the ability to be “satisfied the contract holder has abandoned”.

Q Will the Safeguarding property in abandoned properties Regulations add to the tort legislation? Does the Tort Legislation remain applicable and enhanced by the safeguarding property regulations?

> Where a contract ends under s220, any property left in the dwelling must be dealt with in accordance with the Regulations – which means it must be safeguarded for the relevant period. Whilst the Torts (Interference with Goods) Act 1977 is not being repealed, it would not be possible to serve notice under the Torts Act which conflicts with the requirements in the regulations (eg if it specified an intention to sell within the four week period).

The new Regulations will only apply to abandoned property – not goods left in dwellings where the contract ended in other ways.

Q Abandoned properties – if the notice of intention to end the contract is served for four weeks, can the contract end on the Sunday and we serve the second notice on the Monday when changing the locks and carrying out the inventory?

> Yes, but not before the end of the four-week period from the first notice.

Q The contract includes the following:

‘Contract-holder’s notice: minimum notice period (F+)
The date specified in a notice under term [ ] may not be less than four weeks after the day on which the notice is given to the landlord.’

Therefore, if a contract-holder gives notice on a Monday would it be fair to say to them it ends on a Sunday (in line with weekly rent), however, this would be five weeks later?

> There will no longer be a need for any notices to end on the last day of a period of the tenancy, so the Monday-Sunday rule will not be relevant under Renting Homes. Hence you cannot treat the notice as ending the tenancy on the following Sunday adding extra days to the contract – if the contract holder serves a valid notice, the contract will end four weeks later and so will their responsibility for rent whether that is a Sunday or not.

Q Possession and eviction claims – Please could you confirm what the notice periods (and the periods when notices will be valid for) will be after December?

> This is probably best illustrated in a table. Here it is:
(NB please note this table does not list all the issues which might make a notice invalid, such as the failure to have served a written statement).

Breach of contract and estate management claims (secure OR standard)

“No fault” s173 notices (periodic standard contracts only)

Serious Rent Arrears Claims (standard), s182 or s188

Fixed term standard contracts

Miscellaneous

Footnotes

1. Schedule 9 lists the circumstances where a landlord may serve notice to end a periodic standard contract within the first six months. It includes supported accommodation, homeless accommodation and service occupancies.
2. 2 months notice may be given if:
   1. the contract was an AST before 1/12/22, or
   2. other circumstances in schedule 8A, which include supported accommodation, homelessness and service occupancies.
3. Schedule 8A lists the circumstances where the usual six month notice rule is disapplied and replaced with two months. It includes supported accommodation, homeless accommodation and service occupancies.
4. This notice can only be served in limited circumstances. Schedule 9B lists cases where the landlord of a fixed term standard contract may serve notice to end the contract at the end of the fixed term and include supported accommodation, homeless accommodation and service occupancies. If not, within schedule 9B, the contract cannot be ended at the end of the fixed term.
5. A fixed term standard contract may only contain a break clause if it is made for 2 years or more or falls within schedule 9C. That schedule includes homelessness, supported accommodation and service occupancies.
6. The landlord’s break notice must be for a minimum of 6 months unless it is a converted contract which before the Act was a tenancy or licence containing a landlord’s break clause or it falls within schedule 8A when it may be 2 months. (see footnote 3)
7. The “Occupation Date” is the date when the contract holder is entitled to begin occupying the dwelling under the contract. For the purpose of s173, where there is a previous contract, and the landlord, contract holder and the property are the same, the occupation date of the original contract may be used to calculate the time before which the landlord can serve notice.

Q Please can you confirm what should be written on the possession notice for rent arrears (i.e. what terms of contract do we include)?

> The breach will be failure to pay the rent. The notice is RHW23, and it requires you to specify what term has been breached and how. “Key matters” set out that rent is to be paid, how much and when. We agree that it is not clear from the model contracts or the Act that key matters are contract “terms” but at the same time it is hard to see that a tenant could properly argue that it is not a breach of the contract not to pay the rent! You may want to consider adding a further additional term to the contract which specifically provides that the contract holder must pay rent as set out in the key matters make it clear for tenants and neater for staff when preparing notices.

In our previous bulletin we looked at the routes to possession for standard contracts. This time we are going to look at possession claims which apply to all contracts – so the only routes to seeking possession of secure contracts.

As most people will know by now, all of the existing grounds for possession for both secure and assured tenancies are swept away and replaced by just two – breach of contract and estate management.

These grounds are available against standard as well as secure contract holders. Given the limits on being able to end standard contracts on the “no fault” grounds (and particularly the long timescales involved), it will be interesting to see if the breach and estate management grounds for possession are used more routinely against standard contract holders.

Breach of contract

In order to seek possession on the basis of a breach of the contract, a landlord must:

1. Be able to prove a breach of contract.
2. It must be able to satisfy a judge that it is reasonable to order possession (reasonableness will be assessed by reference to specific criteria which are set out in schedule 10).
3. To serve notice under s159 (RHW23).
4. Issue proceedings.

Where the breach is prohibited conduct, proceedings can be issued at any point after serving the notice. For other breaches one month’s notice is needed.

Proceedings must be issued within six months of serving the notice (once the notice is six months old, it has expired and would need to be re-served).

Estate management grounds

In order to seek possession on the basis of an estate management ground, a landlord must:

1. Be able to prove the ground applies.
2. It must be able to satisfy a judge that it is reasonable to order possession (reasonableness will be assessed by reference to specific criteria which are set out in schedule 10).
3. And that suitable alternative accommodation will be available when the order takes effect (Whether suitable alternative accommodation is available is assessed in accordance with schedule 11).
4. If the only ground is estate management then the landlord must pay the contract holder’s reasonable expenses unless the order is made on ground 1 or 2 only.
5. Serve notice under s161 (RHW23).
6. Issue proceedings.

Again, the notice must be for a minimum of one month and is only valid for 6 months after which it would need to be re-issued.

The grounds are grouped by category

Redevelopment grounds

• The landlord intends to demolish or reconstruct, or to carry out works which it cannot do without possession (Ground A).
• The dwelling (or part of it) is in an area which is subject to a redevelopment scheme and the landlord intends to dispose of the dwelling in accordance with the scheme within a reasonable time (NB the scheme needs to be one approved in accordance with Part 2 of schedule 8 (Ground B).

Special accommodation grounds

• The landlord is a charity and the contract holder’s continued occupation conflicts with the objects of the charity (Ground C).
• The dwelling has features which make it suitable for occupation by a disabled person and there is no such person in the property (Ground D).
• The landlord is a housing association who makes dwellings available to those who are difficult to house and there is no such person in the property (Ground E).
• The dwelling is part of a group of dwellings which is available for those with special needs and there is no such person there (Ground F).
• D, E and F also require that the landlord requires the dwelling for occupation for such a person.

Under occupation grounds

• The contract holder is a reserve successor and the accommodation is more extensive than he or she reasonably requires (Ground G).
• The rights of a joint contract holder have ended by withdrawal or exclusion of that joint contract holder and the accommodation is more extensive than the remaining contract holder reasonably requires, or the landlord is a community landlord and the remaining contract holder does not meet the landlord’s criteria for housing. (Ground H).

Other estate management grounds

• It is desirable for some other substantial estate management reason that the landlord should obtain possession. The reason may relate to all or part of a dwelling, or other premises of the landlord (Ground I).

Reasonableness

The court must consider that it is reasonable to make the order for possession (s209).

“Reasonableness” is now to be assessed in accordance with schedule 10, which provides a structured discretion by listing what the court must take into account, and one thing that it must not consider (homelessness).

Suitable alternative accommodation

Schedule 11 deals with whether suitable alternative accommodation is available. It provides:

• A local housing authority certificate which confirms that the authority will provide suitable alternative accommodation by a date specified in the certificate will be conclusive evidence that it will be available.
• If no such certificate is available, or if the landlord is a local housing authority then “Suitable” is determined by what is in the remainder of the schedule.
• Accommodation is suitable if it is to be occupied by the contract holder under an occupation contract which gives security reasonably equivalent to the existing contract, and if in the opinion of the court it is reasonably suitable to the needs of the contract holder and his or her family.
• Paragraph 4 sets out a list of things for the court to consider when coming to that determination – as one would expect, it includes means, work or education, proximity to family and so on.

Transition

We do not yet have transitional provisions which deal with notices which are served before the Act comes into force, proceedings which are underway already, or which deal with the status of existing orders, particularly suspended or postponed orders which remain “live” until conditions are met in full. It is understood that provisions will be put in place before the Act is in force, which will provide for landlords to rely on notices served and to continue court claims but we will provide an update when we know exactly what that looks like.