Abandonment action in social tenancies: A tenant's right to appeal

Social landlords are entitled to recover possession of a dwelling without applying to courts for a possession order where they have carried out investigations and are satisfied that a property has been abandoned by the tenant.  Solicitor Chris McGrath looks at what a landlord is required to do in order to satisfy the legislative requirements relating to abandonment and at a tenant's right to appeal the termination of his or her tenancy under this procedure. 

The law confers on social landlords a right to take abandonment action in respect of tenancies when they believe a tenant is no longer in residence of their tenancy. This power means that a landlord may be entitled to take possession of a property without recourse to legal proceedings. This is a very significant power with considerable consequences. Abandonment action is a tool that can have distinct benefits, such as ensuring the good housing management of vital social housing.  But, due to the impact it may have on individuals, it is critically important that it is utilized appropriately and in the correct circumstances. It is essential that a landlord does not act beyond its powers. 

It is a condition for all social tenants that they occupy their property as their principal home. If a tenant is not occupying their tenancy, abandonment action may be appropriate.  A person may have genuine reasons for being away from their home for a period, including periods of ill health, the need to care for another person or a period spent in custody. For this reason, it is essential that any intention to take abandonment action is made correctly and that tenants are aware of their right to appeal and of the particular grounds of appeal.

The legislation relating to abandonment of social tenancies in Northern Ireland

Under the Housing (Northern Ireland) Order 1983 (1983 Order) a social landlord is allowed to end a tenancy without needing to seek a possession order from the court where a secure tenant leaves the tenancy without giving notice or abandons the property.

Article 41 of the 1983 Order states:

41 (1) Where the landlord under a secure tenancy has reasonable grounds for believing that-

a)      The dwelling house is unoccupied, and

b)      The tenant does not intend to occupy it as his home,

The landlord shall be entitled to enter the dwelling- house at any time, for the purpose of making safe the dwelling house, and any fittings, fixtures or furniture.

It is important to the note that landlord must have “reasonable grounds” for believing the property has been abandoned. Such grounds will often include information provided by a neighbour.  Given the potential for vexatious allegations due to neighbour disputes, it is crucial that a landlord thoroughly investigates the source of any information relating to a tenant’s non-occupation of a property.

How can the landlord reclaim possession of an abandoned property?

A social landlord using the abandonment procedure is entitled to open, by force if necessary, any door or window of the property in order to gain access to the property. If the landlord then intends to take possession of the property, the law sets out the procedure that must be followed.

Article 41 of the Housing (Northern Ireland) Order 1983 explains this procedure.  The landlord must serve on the tenant a notice of its intention to terminate the tenancy and allow the tenant four weeks to inform the landlord of his or her intention to remain in the tenancy.  Article 41 (3) requires that the notice must be in a prescribed form: 

41 (3) (i) stating that it has reason to believe that the dwelling house is unoccupied and that the tenant does not intend to occupy it as his home;

ii) requiring the tenant to inform it in writing within four weeks of service of the notice if he intends to occupy the dwelling house as his home; and

iii) informing the tenant, if it appears to the landlord at the end of the said period of four weeks that the tenant does not intend so to occupy the dwelling house, the secure tenancy will be terminated forthwith.

In order to serve satisfactory notice on the tenant, the landlord must make the necessary inquiries to satisfy itself that the property is unoccupied and that the tenant does not intend to return. The adequacy of the landlord’s inquiries and the level of consideration that has been given to the possibility of the tenant returning to the property will be of the utmost relevance if a tenant seeks to appeal any decision relating to abandonment action.

A landlord can serve a further notice on the tenant, which will bring the tenancy to an immediate end once this four week period expires as long as the landlord remains satisfied that the tenant has abandoned the property and does not intend to return. In such instances, the landlord will be entitled to take possession of the property without any further legal proceedings.

Abandonment of introductory tenancies

Section 9 of the Housing (Amendment) Act (Northern Ireland) 2010 (2010 Act), which came into effect on 31st July 2010, inserted a new Article 19A into the Housing (NI) Order 2003 to provide a mechanism for social landlords to take possession of an introductory tenancy which has been abandoned. The mechanism is identical in content and nature to that of the 1983 Order.

Effect of abandonment proceedings on the tenant

Rule 49 (5) of the Housing Selection Scheme allows that a tenant may be disqualified from the housing allocation scheme, if they have been found to have abandoned a tenancy within the past two years. Therefore, abandonment procedures can have a huge impact on the tenant’s ability to access housing in the future.

The possible impact of abandonment procedures on a person’s ability to access housing and the ability of social landlords to end a tenancy under this procedure without input from the courts mean that the tenant’s right to appeal such proceedings is of paramount importance.

Right to appeal

Article 42 (1) of the 1983 Order gives any secure tenant, who is aggrieved by a termination of their tenancy, the right to appeal the landlord’s decision. The equivalent right to appeal for introductory tenants can be found at Article 19B of 2010 Act.  The appeal will be heard in County Court and must be brought within six months of the termination of the tenancy.

As long as the property has not already been re-let to another person, the court can order that the tenancy be allowed to continue if it appears to the court that:

• the landlord has failed to comply with any provision of the abandonment procedure as set out in Article 41
• the landlord did not have reasonable grounds for finding that dwelling was unoccupied, or did not have reasonable grounds for finding that the tenant did not intend to occupy it as his home; or
• the landlord was in error in finding that the tenant did not intend to occupy the dwelling- house as his home, and the tenant had reasonable cause, by reason of illness or otherwise, for failing to notify the landlord of his intention to occupy the property.

If the court believes that any of the above has occurred but the property has already been re-let, the court will order the landlord to make suitable alternative accommodation available. If the appeal relates to an introductory tenancy and the 12-month introductory period has already expired, the court should order that a secure tenancy is granted.

There is extensive scope for a tenant to bring an appeal. It is essential that a landlord follows the correct procedure. Therefore, if a tenant can evidence that the legislative procedure has not been adequately adhered to,  the court will likely find that the property has been improperly recovered.

A tenant may also be able to bring an appeal if he or she can show that the landlord did not make proper enquiries into the tenant’s absence from the property. The court will expect the landlord to provide evidence to show that it investigated the length of the tenant’s absence and whether the tenant had left any possessions in the property, indicating an intention to continue to live there.

The fact that a property does not appear to be occupied is not, in itself, sufficient evidence to terminate the tenancy under abandonment procedures. The court will look at the tenant’s intention as well as the physical evidence of occupation. It seems apparent that the legislators envisaged that there would be scenarios when tenants may not be able to occupy their properties at times, for example, due to ill health. A tenant who could provide evidence of a clear intention to return to the property would be in a strong position to appeal any abandonment proceedings.

An adviser who is assisting someone who has been placed in custody should notify the tenant’s landlord immediately of the tenant’s detention and his or her intention to return to the property on release to safeguard against abandonment proceedings.  

What happens if tenants fail to engage in abandonment procedures?

Landlords are required to serve particular notices on the tenant prior to terminating a tenancy under the abandonment procedure, allowing the tenant an opportunity to stop the process.  A tenant who failed to engage with the landlord during the abandonment procedure can still appeal the process. In order to do this, the tenant will need to evidence reasonable cause for their failure to notify the landlord of their intention to occupy the property. A tenant may have legitimate reasons for failing to notify the landlord of their intention in the early stages of abandonment procedures and can provide evidence of the intention to return during the appeals process, even if they failed to do this at an earlier stage.

A social tenancy must be a person’s principal home

Tenants should always be aware of the requirement to occupy their tenancy as their principal home. At a time when social housing is experiencing supply and demand issues and with large numbers of homeless people living in temporary housing while waiting for an offer of a permanent social tenancy, landlords are under pressure to tackle housing fraud and deal with reports of non-occupancy.  Abandonment procedures allow a landlord to swiftly recover a public asset where it is not being utilised in the manner in which it should be.  However, there are often many exceptional and difficult circumstances in people’s lives that can result in unexpected periods away from their home and it is important that tenants and their advisers are aware of their to appeal abandonment procedures when there is a legitimate explanation for non-occupation of the dwelling.

A tenant has six months from the date of termination to bring an appeal.  However, the remedies available to the court are limited if the dwelling has already been re-let to another party so it is essential that the appeal is brought urgently if the tenant desires to remain in his or her home.