We receive a number of queries from Registered Social Landlords on tenant abandonment, asking - what is an abandoned property? - and about the procedures involved for recovering possession of abandoned properties?
Section 17 of the Housing (Scotland) Act 2001 states that a social landlord may commence proceedings to recover possession of a property if they have reasonable grounds for believing that -
- The house is unoccupied, and
- The tenant does not intend to occupy it as the tenant's home.
A landlord should make necessary enquiries to ensure that both of the above conditions are satisfied e.g. interviewing neighbouring residents and carrying out regular home visits to the property.
If a landlord has genuine concerns that the property may be subject to vandalism, he may enter the property at any time for the purpose of securing the house and any fixtures, fittings or furniture. This includes forcing entry to the property.
Where sufficient enquiries have been made and the landlord is satisfied that the property is abandoned, a first abandonment notice must be served on the tenant.
The first abandonment notice must state:
- That the landlord has reason to believe that the house is unoccupied and that the tenant does not intend to occupy it as the tenant's home,
- That the tenant should inform the landlord in writing within 4 weeks of the service of the notice if he intends to occupy the house as his home, and
- If the landlord has received no response to this notice within 4 weeks and it still appears that the tenant does not intend to occupy the house, the tenancy will be terminated with immediate effect.
At the end of the 4 week period, if the tenant has failed to respond to the first abandonment notice, a landlord may serve a second abandonment notice on the tenant which has the effect of terminating the tenancy with immediate effect. It is important to note that there should be 28 clear days between the service of the first and second abandonment notices. It is common for landlords to serve the second notice too early. Case law has confirmed that where the second notice is served too early, and the abandonment procedure is challenged by the tenant, the recovery of the property would be held to be an unlawful eviction.
Please note that this blog relates to social housing only.
If you would like to discuss the tenant abandonment procedure in greater details please contact our experienced housing team.