What do you do if your tenant goes to prison?

Simran Prasad, Director of Property Management advises on what to do if your tenant goes to prison

As a landlord, you may have to deal with many eventualities. One of the most worrying, although thankfully rare, is dealing with a tenant who is sent to prison. You probably won’t see this coming so there isn’t a lot you can do in advance to cover yourself but should the worst happen to your tenant, we can offer some guidance as to the steps you should take to protect your rental property – and income.

You cannot automatically repossess your rental property

The first thing to remember is that you do not have an automatic right to possession of the property just because the tenant is in prison, no matter how long they will be staying at ‘Her Majesty’s pleasure’!

Surrendering the tenancy

However it is likely the tenant will want to terminate the tenancy as soon as possible and be free of the responsibility of paying rent for a property they won’t be living in.

As a qualified lawyer, I have helped landlords with this type of situation on several occasions and in my experience, it is always best to try and persuade the tenant to surrender the tenancy voluntarily – good communication is key! You could perhaps offer to waive any rent arrears if the tenant agrees to surrender the tenancy (you are unlikely to obtain any rent arrears from a tenant in prison anyway). If you are unable to contact the tenant, try and speak to their next of kin and see if they can help to get the surrender signed – they will want to help the tenant solve the problem too so this could be a good option.

What should you do about rent arrears?

Of course, if a tenant is in prison and you are unable to persuade them to surrender the tenancy, it is likely that rent arrears will build up and if this happens, we would advise taking steps to recover possession through the courts as soon as possible. You can also take action to possess the property if the prison term goes beyond the end of the tenancy. But in both cases you must follow the letter of the law.

You can only begin proceedings either when the tenancy ends or if there are rent arrears. Whichever is the case, the length of time it takes to recover your property will depend on several factors, including how busy the courts are and whether or not the tenant can defend themselves. Expect the process to take four to six months.

Applying to the courts for a possession order

There are two main ways to gain possession of a property under the Housing Act 1988. Section 21 gives landlords an automatic right of possession without having to give any grounds once the fixed term has expired. Section 8 allows landlords to seek possession using several grounds listed in the Act including rent arrears. You can find more information on the government website at: https://www.gov.uk/gaining-possession-of-a-privately-rented-property-let-on-an-assured-shorthold-tenancy

How much will it cost?

It costs £125 + VAT for a solicitor to serve a Section 8 notice, but if this fails, costs mount dramatically. Costs, including Court fees, employing a solicitor to prepare documents and a barrister to attend the hearing, can add up to over £1000. It can take several weeks to get a hearing date and in the meantime you are losing more rent. So if you can talk to the tenant and reach an amicable solution this is clearly the best option.

Making sure the property is safe and secure

Of course, if the tenant continues to pay the rent on time, you still need to be sure the property is secure, particularly if you live overseas and cannot take a look yourself. Most agents will agree a fixed number of inspections a year but you can usually agree additional visits for a small charge. A tenant might try to sub-let the property while they are in prison but most tenancies do not allow this. A guest may stay overnight for a short period of time but only someone who is named as an occupant on the tenancy agreement can stay long term.

Seeking advice

Weaving your way through the legal issues involved in gaining possession of your property is not for the faint-hearted and you will probably need the assistance of a solicitor. If your property is managed by a professional letting agent, they will help and handle many of these issues on your behalf. As a qualified lawyer, I handle problems like these for our landlords and if you’d like to discuss any of these points with me, please feel free to either post a comment on our blog or email us