# I think my tenant has left, can I change the locks?

This is the eighth in a series of 10 articles written by specialist landlord & tenant solicitor Tessa Shepperson, founder of the online Landlord Law Service.

**I think my tenant has left, can I change the locks?**

You need to be very, VERY careful about this. Once a property has been let to a tenant it is effectively his. He is entitled to live in it without interference from the landlord. 

This is set out in a clause (rather quaintly called the ‘covenant of quiet enjoyment’) which is implied into all tenancy agreements, whether it is set out in the written terms and conditions or not. Mostly it is.

So the landlord has no right at all to go barging in, whether he thinks the tenant is there or not. After all a tenant does not HAVE to live in the property if he does not want to. Also, he could be on holiday, in hospital or in jail. None of which entitle the landlord to go in and repossess.

So the fact that the neighbours have not seen your tenant there for a while does not mean that you are legally entitled to just go in and change the locks. For example, if the tenant was merely on a long holiday and he came back to find that you had changed the locks he would be entitled to an injunction to get let back in again and financial compensation from you, particularly if you had re-let the property to someone else. Plus you would almost certainly be ordered to pay his legal costs as well. It could turn out to be a very expensive mistake.

If I also tell you that there are believed to be some tenants who deliberately pretend to have vacated, so that they can entice their landlords into repossessing to potentially sue them for damages, you will appreciate that there is a great need for caution in this situation.

However there _are_ times when you can go in and change the locks. How can you tell when this is?

**The doctrine of implied surrender**

The legal justification for repossessing a property in the absence of the tenant is that you are accepting what we lawyers call an ‘implied surrender’. This is when the conduct of the tenant is inconsistent with an intention to continue with the tenancy. You can then accept this implied surrender offer by re-entering the property and changing the locks, and this then ends the tenancy.

The best and clearest example if this is if the tenant stops paying rent, moves out all his possessions, and leaves the keys behind. Giving up the keys is considered to be a symbol of giving up possession. So if you have a situation where they have been left behind you are generally safe to repossess – so long as the tenant has actually moved out, and has not just left them behind by mistake while popping out to the shops!

However, if the keys have not been left behind, particularly if some of the tenant’s possessions are still there, you should back out of the property (assuming you have entered with your keys and an independent witness, to check the situation) and obtain a court order for possession.

Obtaining a court order for possession is the ONLY 100% safe way to repossess a property with no risk of any claim for compensation for unlawful eviction. Anything else is a risk. You may consider that it is a risk worth taking, particularly if the tenant is in serious arrears of rent. However it IS a risk and any solicitor you consult will advise you to go to court.

What if you have no keys or way of checking? For example if the flat is on the sixth floor and you cannot peer through the windows? Then your only option is the court order for possession. 

**The abandonment notice myth**

“But” you are probably saying, “Why don’t you just put an abandonment notice up on the door?” “Because” my answer would be “they are nonsense”. 

When I first started working in property law, I had never heard of an abandonment notice. They are in none of the legal text books. They are a myth perpetrated by landlords and agents who don’t want to go to court. But they do not, and cannot have any legal efficacy. 

Here’s why:

  * If the tenant has given up and gone, if there is a **_genuine_** situation of implied surrender, you do not need to put any notice on the door. You can just go in and change the locks, now, entirely legally. 
  * If, on the other hand, it is not an implied surrender situation, if the tenant is say, merely staying longer than expected with her Great Aunt Mary (perhaps GA Mary has fallen sick, and she is staying to nurse her), then you have no right to go in and change the locks. Any attempt by you to do so will certainly be unlawful eviction which is both a criminal offence and (as we have seen above) a civil wrong entitling the tenant to bring a claim for compensation.



The problem is working out which of these situations apply. Things are not always clear cut. 

If you want to read more about this, take a look at two blog posts on my Landlord Law blog, one on implied surrender and the other on abandonment notices. 

There is also a ‘horror story’ on my main Landlord Law site which you can read here.

But the main message is, never change the locks on a property unless you are COMPLETELY sure that the tenant has vacated, and left his keys behind. Otherwise it could cost you dear.

  * As a private landlord for several years with a largish portfolio of properties purchased new I find these horror stories designed to drum up business rather amusing. They usually prove the Law is an Ass so you obviously need to be careful as you go about your business and cover the preverbial derriere or get bitten by the scumbag professional barrack room lawyer tenant. However the Counterclaim is a useful tool as is the reminding of the tenant that they will find it difficult to rent decent property once they have a record of non payment of rent, damage or whatever so any victory due to the vagaries of the legal system will be pyrhic and probably short-lived. They have after all to answer questions about rent arrears/eviction/legal disputes with landlords etc on most Application Forms. Of course the best action is to learn to recognise the bad un (tenant) that lurks waiting to pounce on the unsuspecting over trusting over regulated landlord.

  


  * After I read this, I am thinking that maybe there should be a separate “key deposit” of say £100. So that a tenant gets £100 back for handing in the keys regardless of the state they left the place in or any unpaid rent – that way this issue would be a lot less common.

The tenant could still be sued for any costs regardless of giving them a “key deposit” back – but at least you could re let quicker while doing so.

  


  * When I first read this idea of keeping a deposit against the keys, I though it sounded a great idea But I suspect that, legally, it would be considered as no different from the standard deposit, and would have to be kept / insured with an approved scheme, which would complicate the logistics of the key deposit return.

  


  * @JohnF Yes, I am pretty sure you are right about that. ANY payment paid to the landlord in the nature of a deposit will need to be protected. Sorry!  
Tessa Shepperson recently posted…Home

  


  * @JohnF

I don’t see protecting it as part of the main deposit as being an problem, all you are saying is that.

“If you give me the keys back and sign a form to say you have vacated, I will hand you £xxx in cash. You agree that this is not confirmation that you don’t own me any money.”

  


  * So when do you give the key money back? Ideally it should be as they hand back the keys. But if you do that, you’re relying on the tenant agreeing for you to keep the money from the deposit held in under the government scheme. And if they dispute that?  
If you don’t hand back straight away, and the tenant doesn’t return the keys, you’d have to argue with the deposit holder about why you want to claim £100, rather than the actual cost.  
Not saying it couldn’t work. Just that it needs thought.

  


  * Hi guys,  
Just a quick one.. The above is basically my situation I have now, tenant within fixed term still holding onto the key and has left some belongings. 

Once the rent falls into arrears (in 2 weeks) can I serve a section 8 notice to seek possession using ‘ground 10′ only? It indicates that I can use ground 10 once there is arrears on the property…

Info from a landlord site shows  
You must serve notice seeking possession of the property on the tenant before starting court proceedings. You need to give the following periods of notice :  
Grounds 3, 4, 8, 10, 11, 12, 13, 15 or 17 – at least 2 weeks

Grounds 1, 2, 5, 6, 7, 9 and 16 – at least 2 months

So if I seek under ground 10, should I serve this as soon as it falls into arrears, then start court proceedings 2 weeks following this? 

Thanks