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Can this tenant who has moved out insist on moving back in?

Here is a question to the blog clinic from Callum who is a landlord

A tenant in a property I managed gave me verbal notice to leave.  During the notice period the property suffered some accidental damage and needed repairs, the tenant moved out and handed the key back stating as he was moving out anyway he would leave whilst the repairs were being done.

Unfortunately, his property that he was planning to move into fell through and now he wants to return to the house after works are finished. The owner wants to sell the property and no longer rent, does the previous tenant have any rights to return as we only have a verbal agreement on her notice to leave? Can a S21 notice be given to the tenant when they are not currently residing in the property and keys returned?

Thank you

Answer

The question here is, having given a verbal notice to quit and then moved out and handed back the keys, can this tenant insist on moving back in again?

Where a tenant moves out, removes all their possessions, and (in particular) hands back the keys, this is normally taken as a surrender of the property.  Where there is no deed, this will be an implied surrender.  An implied surrender is where there are a series of acts by both landlord and tenant inconsistent with the continuation of the tenancy.

It is entirely common for tenancies to end where tenants just move out and hand the keys back and the landlord agrees to the tenancy ending, without any formal deed.

It sounds to me as if this is what has happened here, assuming the tenant has moved out all of his possessions (and if he had not, why did he hand over the keys?).  In particular, handing over the keys is generally taken as being a symbol of the tenancy ending, provided they are accepted as such by the landlord.

So it looks as if this tenancy will have ended when the tenant moved out and handed the keys back to the landlord.  In which case the tenant cannot resurrect it just because subsequent events have inconvenienced him.

If this is the case, there is no need to serve any possession notice, you can just refuse to allow the tenant back in again.  

I would strongly advise that you make a detailed file note of the circumstances under which the tenant gave oral notice to quit and then moved out and handed back the keys, quoting any exact words used by the tenant if you can remember them.  Make sure your file note is dated, and if the events were just a few days away it may be worth printing it out and dating it (Landlord Law members can use our ‘Diary Sheet’ which is specifically designed to be used as a record of this sort of thing in case of subsequent court proceedings).

As these are difficult times, you could consider ameliorating things somewhat for the tenant by offering (without prejudice) to refund any advance rent paid for the period of time after he moved out – assuming that advance rent was actually paid!  

If this situation arises in future, make sure you make a detailed ‘contemporaneous record’ of what happens and ideally get the tenant to sign a deed or letter confirming that they have given up possession.  

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