Abandonment Under Occupation Contract

There is a specific procedure set out in the Renting Homes (Wales) Act 2016 ("the Act") for abandonment where no court order is required, although it’s unclear how much it will be used (see later under contract-holder’s remedies).

There isn’t any middle ground from the start of the Act. If there is suspected abandonment, the procedure outlined in this guidance must be used, or a court order must be obtained (no reason notice or breach of contract). Simply re-letting the property and hoping for the best will not be an option!

When can abandonment be used?

To be able to use the abandonment procedure, there must be a term in the contract (however expressed) that the contract-holder must occupy the dwelling as their only or principal home (s.220(2)). The model contracts from the Welsh Governments Renting Homes page contain no such term!

Procedure

If the landlord believes that the contract-holder has abandoned the dwelling, the landlord must give the contract-holder notice (s.220(3))-

  • stating that the landlord believes that the contract-holder has abandoned the dwelling,
  • requiring the contract-holder to inform the landlord in writing before the end of four weeks (the “warning period”) if the contract-holder has not abandoned the dwelling and
  • informing the contract-holder of the landlord’s intention to end the contract if the landlord is satisfied that the contract-holder has abandoned the dwelling at the end of the warning period.

You must use a prescribed form for this purpose – “RHW27”.

During the four-week warning period, the landlord must make such inquiries as are necessary to satisfy the landlord that the contract-holder has abandoned the dwelling (s.220(4)).

Inquiries might include:

  • checking with any guarantor or other contacts,
  • checking if the post is being collected,
  • checking if plants are watered,
  • checking if utilities stay on (e.g. pre-payment meter),
  • has council tax been taken out of their name by the contract-holder?

However, rent arrears are not a consideration of abandonment. Nor will any single inquiry, and the decision must be based on multiple pieces of evidence.

The question is not if the contract-holder is sleeping at the dwelling. The question is, “Is there an intention to return within a reasonable period?”.

For example, the contract-holder may be in a hospital or on an extended holiday.

It will be essential to be 100% satisfied they have abandoned (see later).

At the end of the four-week warning period, the landlord may, if satisfied, end the contract by giving the contract-holder further notice using the prescribed form “RHW28” (s.220(5)).

The contract ends when that further notice (RHW28) is given to the contract-holder (s.220(6)).

If an occupation contract is ended by giving RHW28 (after four weeks from giving RHW27), the landlord may recover possession of the dwelling without court proceedings (s.220(7)).

You must give a copy of the first and further notice to any lodger or sub-holder of the contract-holder (s.220(8)).

Please see the serving documents section (under the start of the tenancy) for serving the notices.

Right of entry

The landlord may enter the residence at any time to make it secure or to safeguard its contents and any fixtures or fittings and may use reasonable force to do so (s.224).

However, this right only exists if the landlord reasonably believes there has been abandonment and there is a term in the contract (however expressed) that the contract-holder must occupy the dwelling as their only or principal home.

Safeguarding Property in Abandoned Dwellings

Any property which does not belong to the landlord that is in a dwelling when the occupation contract ends under the procedure above (after the further notice RHW28) must be dealt with by The Renting Homes (Safeguarding Property in Abandoned Dwellings) (Wales) Regulations 2022.

The landlord must safeguard the property for at least four weeks from when the contract ends (after service of RHW28) (r.3(2)).

After four weeks, the landlord may dispose of any remaining property (r.3(3)).

Disposal includes but is not limited to the sale of property (r.2(1)).

Property which does not have to be safeguarded is property-

  • which is perishable,
  • where to safeguard it adequately would involve unreasonable expense or inconvenience, or
  • the value of which would not, in the landlord’s opinion, exceed the amount the landlord may deduct from the proceeds of the sale of such property.

In this case, the landlord may dispose of such property at such time and as the landlord thinks fit (r.3(4)).

Before disposal, the contract-holder, or any person who appears to the landlord to have a right of ownership or possession in the property, may arrange delivery to the contract-holder or other person (r.4(1)).

The landlord must relinquish custody of that property where delivery has been arranged. Still, the landlord may require payment of such sum, as the landlord sees fit, equal to or less than the amount of any expenses incurred by the landlord in complying with the Regulations before relinquishing custody of the property.

The landlord may apply any property disposal proceeds in satisfaction of expenses incurred by the landlord in complying with the Regulations (r.5(1)).

If there is any remainder, after four weeks from the contract's end, the landlord may apply it towards any rent arrears (r.5(2)).

Note: any remaining proceeds from the sale of property (disposal) may only be used to satisfy expenses in complying with the regulations or rent arrears for no other purpose.

The dealing with contract holders' belongings as detailed above only applies “… when the occupation contract ends under section 220 …”. If the contract ends some other way, such as goods left after a bailiff eviction following a court possession order, the goods will have to be dealt with under the Torts (Interference with Goods) Act 1977.

Contract-holder’s remedies

A contract-holder may, before the end of six months from when they were given the further notice ending the contract, apply to the court on one of the following grounds (s.222):

  • that the landlord failed to provide the first notice,
  • the landlord failed to make the inquiries required,
  • that the contract-holder had not abandoned, and there is good reason for their failure to respond (or to respond adequately) to the first notice,
  • when the landlord gave further notice to end the contract, the landlord did not have reasonable grounds for being satisfied that the contract-holder had abandoned the dwelling.

If the court finds that one or more of those grounds is made out, it may-

  • make a declaration that the notice ending the contract is of no effect and the occupation contract continues to have effect,
  • order the landlord to provide suitable alternative accommodation to the contract-holder, or
  • make any other order it thinks fit.

The suitability of alternative accommodation is to be determined by Schedule 11.

The contract-holder must claim within six months of the second notice ending the contract. If that notice is never served, the contract continues. Therefore, a suit for unlawful eviction could be made (except perhaps after six years under the statute of limitations). You may only end the contract under the fundamental terms of the agreement and legislation (s.148).

Assuming you served the first notice and made genuine inquiries, the onus of showing reasonableness falls to the contract-holder, who must show a good reason for failing to respond (or responding adequately) to the first notice. But, something like being in hospital will be reasonable, so landlords must take care if relying on the abandonment procedure. Continuing with other forms of possession (e.g. section 173 (no reason) notice or rent arrears) will be advisable.

Joint contract-holder not occupying

Earlier, it was discussed ending the entire contract due to abandonment.

Suppose the landlord under an occupation contract believes that a joint contract-holder does not occupy the dwelling and does not intend to occupy it. In that case, the landlord may end the contract-holder’s rights and obligations by following a procedure under section 225.

The joint contract-holder must be required to occupy the dwelling by a contract term (however expressed) to occupy it as their only or principal home.

The landlord must give the contract-holder notice-

  • stating that the landlord believes they do not occupy and does not intend to occupy the dwelling,
  • requiring the contract-holder to inform the landlord in writing before the end of four weeks (the warning period) if they occupy or intend to occupy the dwelling and
  • informing them of the landlord’s intention to end their rights and obligations under the contract if the landlord is satisfied that they do not occupy, and does not intend to occupy, the dwelling at the end of the warning period.

You must use the prescribed form “RHW29” for this purpose.

During the warning period, the landlord must make such inquiries as necessary to satisfy that the contract-holder does not occupy the dwelling and does not intend to occupy it.

At the end of the warning period, the landlord may (if satisfied as described above) end their rights and obligations under the contract by giving them further notice by prescribed form “RHW30”.

The contract-holder ceases to be a party to the contract at the end of eight weeks after being given further notice (form RHW30).

The landlord must give each of the other joint contract-holders a copy of both notices when they were given.

The safeguarding of property regulations discussed earlier only apply where the entire contract was ended and do not apply to ending a joint-contract holder’s rights and obligations.

Remedies for a joint-contract holder

The joint contract-holder may, within eight weeks from the further notice (RHW30), apply to the court on the following grounds:

  • that the landlord failed to give the first notice (RHW29) or failed to make the necessary inquiries,
  • that the joint contract-holder occupied or intended to occupy the dwelling, and there is a good reason for their failure to respond (or to respond adequately) to the first notice,
  • when the landlord gave further notice (RHW30), the landlord did not have reasonable grounds for being satisfied that they did not occupy the dwelling or intend to occupy it.

If the court finds that one or more of the grounds are made out, it may declare that the further notice ending the contract is of no effect and that they continue to be a party to the contract and such other order as it thinks fit (s.226(3)).

Joint contract-holder exclusion by another joint contract-holder

The above situations have discussed a landlord ending a contract due to abandonment (or ending rights and obligations in the case of a joint contract-holder).

Under section 227, there is a procedure where another joint contract holder may cease the rights and obligations for another joint contract-holder if they don’t occupy the dwelling (and don’t intend to).

The same as for the landlord, the contract must contain a term requiring occupation as their only or principal home (however expressed) (s.227(2)).

The first part is very similar, and notice is required (prescribed form “RHW31”) with a four-week warning period during which the joint contract-holder must make inquiries.

However, the main difference is that after the four-week warning period, the contract-holder who gave the notice must apply to the court for an order ending the joint contract-holder’s rights and obligations under the occupation contract.

The court may not make the order if the joint contract-holder does not occupy and does not intend to occupy due to another joint contract-holder failing to comply with section 55 (anti-social behaviour and other prohibited conduct) (s.227(8)).

If an order is made, the joint contract-holder who is no longer a party to the contract may apply to the court to rescind that order within six months (and thus would continue to be a party to the contract).

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