I have a tenant on remand in prison for the last 3 weeks. He has no family or friends that I can work with, despite phone calls and emails with no reply. I can not find out which prison he is in. He is 10 weeks behind with his rent; the severity of the alleged crime suggests that he will get a sentence. I am contemplating serving a section 8 notice, but the only place I can serve this is at his home address, but I know he is not there? Any help or advice would be greatly received.
Hi @siempre
Sorry to hear this. OpenRent can’t really advise here, other than to suggest seeking independent legal advice on the matter.
Similar situations have been raised on this forum previously, which may be of use:
Shelter also offer some good guidance on this and any grounds you may have for possession here:
Note that the above only applies to properties in England.
Google ‘Keeping a rented home when the tenant is in prison’ Shelter page
Get legal advice but Id have thought it’s the tenant’s responsibility to make sure any post or notices or bills or council tax sent to him get passed on to him. It’s exactly same as if had abandoned property in any other way. Look through the threads here about Abandoned properties
You can do the same things you would if a property was abandoned- gather evidence he’s not living there (from neighbours, post piling up etc), take photos/video of documents being put through letterbox, send electronically to all known electronic and mobile contacts including friends and family.
10 weeks is already 2months rent arrears and you can get possession on those grounds too
Maybe consider s21 too as not discretionary.
Good luck
This post made me wonder whether Openrent should or could allow tenants voluntarily to record emergency contact details, so these could be used either by OR customer support or (if tenant consents) by the LL. As well as somebody going to prison or abandoning the property or just going missing, it would be useful to have such a facility in case of other emergency situations (medical etc) where the LL/OR would want to be able to tell an emergency contact family member or friend in the best interests of the tenant.
Maybe OR could ask tenants whether this would be useful /add to website
Best
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Your contract tells you how to serve notice.
It will tell you how and where. Serve it to his current address. If he has left then the onus, contractually ( if you have a clause) , is for him to provide a forwarding address.
Do you have a guarantor?
Keep all the evidence of your attempts to locate him. I would speak to the police to see if they can help in locating him. He would have had a legal defense for his trial and you maybe able to contact them through the courts.
The n r l a would be a useful point of call for this too
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You cant treat the property as being abandoned if the tenant is in custody. Abandonment of a tenancy is a choice. Incarceration is not. The tenancy continues until its brought to end end in the normal way.
@siempre I would echo OR’s suggestion of legal advice, but if you have to go it alone, I’d serve a s21 now if you can, but in the meantime keep trying to track the tenant down and to get to him with a deed of surrender.
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@David122
Agree legal advice needed but why does reason for tenant action matter in any way?
In any case i have said ‘do the same things as if’ by which to be clear I meant seek possession legally using s21 or other grounds after gathering the right supporting evidence. OP says already 10 weeks in rent arrears so eviction on rent arrears grounds already possible
if someone has left a property isnt paying the rent, isnt looking after it and has chosen not to make any alternative arrangements for it to be taken care of, and chooses not to contact the LL they have chosen to not meet their tenanancy agreement obligations. As the Shelter page indicates they then face LLs seeking possession in exactly the same way as any other time LLs seek possession due to rent arrears (etc)
If LL is seeking possession due to rent arrears it is because a tenant has chosen not to pay. The fact it may be difficult or impossible for them to do so because they lost a job or were in prison or got into big debts gambling and dont have the £ in savings, or any other excuse, is surely irrelevant and no different from a tenant in full employment who can afford the rent and simply chooses not to.
Or are you claiming there is something in the legislation that says they get special/different treatment protecting them from eviction and excusing them from contract obligations because they are in prison?
Best
There are no special rules protecting prisoners from lawful eviction. However, the tenancy continues until this happens. Landlords have been caught out in the past by simply taking back the property when their tenant goes to prison. There is quite a well known case where a court, in Scotland I think, ruled the a prisoner released after 10 years in custody was still a tenant of his former home and the landlord had therefore illegally evicted him.
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@David122 absolutely. So just like when a property appears to be abandoned the LL has to take the right legal steps to end the tenancy and gain possession. That’s all I advised, exactly same as everyone else here. Agree in this case when rent not being paid for over 2 months, s21 or possession on grounds of rent arrears may be the right way to go rather than the legal route for abandonment.
But as they havent been in touch to say they want to keep the tenancy, not made arrangements for someone else to look after the place, then presumably the abandonment approach ‘may’ be possible esp if OP also demonstrates efforts to make contact. Even with abandonment there is a formal legal process to go through (including serving notices and making every effort to make contact) the LL doesnt just move back in - which I agree would obviously be an illegal eviction. It would be for legal advice what approach to use, including whether the Scottish case sets a precedent of some sort which means the abandonment approach should never be used in these circumstances.
Why cant a prisoner make contact, tell LL they want to continue the tenancy, keep paying the rent and make suitable arrangements for the property to be taken care of, and allow their legal rep to explain this as evidence to a court of intent to continue to keep the tenancy.? Why would they need to occupy to assert the right to continue the tenancy when they can do all those other things? Agree courts might well be unsympathetic if LL asserted lack of occupancy alone as evidence of abandonment but thats no different from if eg a person was incapacitated in hospital.
Even s21s can be challenged (eg if tenant claims it is a retaliatory eviction) so no approach is entirely risk free and legal advice needed on best route based on specifics of the case
Best
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Fair enough while the tenant on remand for a few weeks tho tenant has plenty of time to think about these things if sentenced to a long period in custody. Or do judges think tenants have no obligations to sort out their financial responsibilities for the whole of any time they are in prison, so can just not pay for anything when there?
If I stop paying my mortgage I doubt my lender would not repossess my property just because i say i am busy, whatever the cause, and i doubt any judge would say Im excused from having to engage and deal with it except for a pretty short period (eg following a bereavement).
Anyway thanks for the explanation.