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Have you had any confirmation from the tenant that they wished to surrender their tenancy please - e.g. a text or email?
Thanks - from what you say they told the agents they were vacating however did they say they wished to end the tenancy or words to the effect? I will explain the reason I ask this in a moment with your permission...
Thanks. The reason for my above questions is that as a landlord, you need to be very careful in how you proceed because a tenancy does not necesarily automatically end on expiry of a s21 notice if the tenant does not willingly give up possession. Evidence of return of keys is excellent evidence of surrender of tenancy but here you say they refuse to return them. Where a tenant refuses to give up possession a court order can be necessary to end the tenancy. However the position here is a little different from what you say. Here the tenant has moved out and ceased living in the property as their principle residence. Accordingly if they do not wish to give up possession - we cannot be sure of this because they refuse to return their keys - then their rights are that of a contractual tenant after having moved to a different property which can be ended by a notice to quit. From what you say you have serve a s21 notice which operates a notice to quit and they have been moved out for over a month.
Accordingly providing you are certain that they have taken up a new tenancy elsewhere it is reasonably safe to claim that they have 1) given up possession of the property and 2) if they did not wish to give up possession despite having moved elsewhere, that their rights to the tenancy have ended by virtue of having given them reasonable notice to quit their contractual tenancy by virtue of the s21 notice. These arguments combined should be sufficient to defend against any potential action by the tenants against you for unlawful eviction which can be tried on by some wily tenants in this sort of situation.
If you wish to protect yourself yet further you can serve an abandonment notice through the letterbox giving notice that the locks will be changed within 5 working days and a number and address to contact you by however based on the above this should not be necessary. The safest approach to be 100% secure is to seek a court order for possession however many landlord will take a calculated risk in such situation because of the delay of obtaining a court order and take possession of an abandoned property without a court order and based on the above you would appear to have a sound defence against a claim under the Protection Against Eviction Act by the tenants as discussed above.
If you are content to proceed without a court order on that basis, based on the above it is not unreasonable for you to consider entering the property and changing the locks. If you conducted an inventory on check in you may consider a claim against the previous tenants or their deposit for the damage and poor cleaning at the property if you believe they may have any means to pay such a claim.
Can you tell me exactly what they said in giving a final moving date of 18th Oct and who they told?
OK it would be useful to obtain a statement from the agent in writing that this is what they were told. The reason for my words of caution is that there is a piece of legislation called the Protection Against Eviction Act which provides that it is a criminal offence to unlawfully evict a tenant and what the law and common sense consider an ended tenancy are not always the same thing. However based on what you say they have ceased to live at the property as their primary residence and you have given them reasonable notice to quit and they have not been living there for a month or more and accordingly there are strong defences available should the tenant attempt to try to claim damages from you for unlawful eviction under the above legislation. Whilst I cannot tell you the tenant would not try to attempt a claim if you change the locks, you would appear to have strong defences if they did. If you wish to play it 100% safe you can apply for a court order for possession but if you do not wish to wait the 2 months to obtain one and are happy to proceed on the above basis it is not unreasonable for you to enter the property and change the locks based on the above
Is there anything above I can clarify for you?
Ideally as a landlord you would need reference to a pre and post tenancy inventory to stand the best chance of making a case for a claim. Pictures can be useful either in support of an inventory or without an inventory (for some damage) providing you can show on the balance of probability the date the pictures were taken or at least that the reflected the property's state immediately prior to the tenants tenancy starting. Agents can sometime assist in this respect if there is no inventory.
The other problem with housing benefit tenants for landlords is that even where a landlord proves their claim which is often quite possible, the tenant rarely has significant means in order to meet the claim but that is not necessarily a reason not to pursue one in and of itself.
You may wish to check your insurance policy. Some landlord insurance policies have cover which can meet some post tenancy issues, but such covern is not common to basic policies.
Is there anything above I can clarify or assist you with any further?
A pleasure. Best wishes for your recovery action if you choose to pursue it.
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