This is a question from Sally who is a managing agent

A Tenant owed rent and since he failed to communicate on arriving at the property the landlord was made aware that the tenant is in prison. The solicitor under data protection cannot discuss the case. The issue is the landlord needs his property back asap as he can’t wait for a long drawn out process as he can’t afford to. Since no one is at the property can we not treat it as abandoned property and take the property back .

Answer

It depends.  You don’t say whether or not the tenant had actually moved into the property before he went to prison.

The fact that someone is in prison does not, in itself, end the tenancy.  Indeed past case law has shown that a tenancy can continue if there is a caretaker in occupation (for example the prisoners wife and family) and the rent is being paid.

So you can only, legally, go in and change the locks in two circumstances:

• If the tenant specifically agrees that you can, or
• If you are able to show an ‘implied surrender’ 

Getting the tenant to agree

If you know where the tenant is, it may be worth trying to contact him and get him to agree to a surrender.  If you point out to the tenant that they will be liable for the rent until this is done, they may be willing to do this.  After all, they will probably not want to incur a liability for rent when they are not able to live in the property.

If you don’t know where they are, a friend or relative may be able to help.  Or indeed the solicitor.  The solicitor may not be able to discuss the case with you, but may be willing to ask the tenant if they are prepared to surrender the tenancy and may even arrange for them to sign a surrender form.  It’s worth a try.

Implied surrender

If you are unable to contact the tenant and the solicitor won’t help, you may be able to go in and change the locks if you can show an implied surrender – ie that the tenant’s behaviour is inconsistent with an intention to continue with the tenancy.  ‘Abandonment’ can generally be taken as being an implied offer to surrender but will depend on the facts.

So, for example, if the tenant has never moved into the property and has paid no rent – it may be difficult for him to argue otherwise.  Take a look at this post where I discuss implied surrender and when you can use it.

If neither of these applies

If the tenant won’t agree and it does not look as if there is an implied surrender, you will be left with bringing a court claim for possession.  

There is no special ground for tenants in prison, so you will need to use one of the other grounds.  So if the tenant is not paying rent, you will be able to use the rent arrears ground once the tenant is in arrears of two months or more.  Or, once the fixed term has ended, you will be able to use section 21 (so long as you have served a valid notice first).

You say that the landlord cannot afford to wait to bring a claim for possession.  The landlord can just go in and repossess the property anyway and hope that the tenant does not bring a claim for unlawful eviction and compensation.  It is up to the landlord to decide whether this is a risk he is prepared to take.  But be aware that impecuniosity is not a justification for acting outside of the law.  

If you seek legal advice, going in and changing the locks is not something a lawyer will recommend save where the landlord is clearly entitled to do this under the implied surrender rules.

And finally

I suspect that if the tenant is going to be in prison for a long stretch, he will probably be willing to surrender (and hopefully his solicitor will help).  But if it is only a short sentence, he may want to live in the property when he comes out.

In which case you will either have to risk a claim for unlawful eviction or bring eviction proceedings – if you can.