If a tenant is sentenced to prison, it can raise several legal and practical questions for both the landlord and the tenant. Landlords in England have specific rights and responsibilities in such situations and it’s crucial to understand the legal framework governing these circumstances.
Here, we will explore what happens when a tenant goes to prison and the steps the landlord can take to obtain possession.
Possession – Right to Continue Tenancy
The first question that often arises is whether a landlord has the right to terminate the tenancy when a tenant goes to prison. A tenant’s imprisonment does not automatically end their tenancy. The tenant remains legally responsible for paying rent until the tenancy agreement expires or is formally terminated. If a tenant wants to keep their home while in prison, then they must ensure:
- the rent is paid
- the property is looked after
- the tenant intends to return on their release from prison
Tenants in this situation may struggle to meet these financial commitments, which can lead to arrears and as a result, the landlord is likely to bring proceedings for possession with the county court.
If the tenant is imprisoned, has not paid rent, or communicated with the landlord, it may appear to the landlord that the property has been abandoned and the landlord may seek to change the locks. A tenant serving time in prison remains a tenant entitled to take up occupation of the property at the end of their incarceration, unless they have agreed to surrender the tenancy with the landlord, or the landlord has lawfully obtained possession of the property. It is advisable for the Landlord to seek to obtain lawful possession, commenced by way of a formal prescribed notice, to protect against a possible claim for illegal eviction.
The Landlord may be able to seek possession either by service of a section 21 notice or section 8 notice, pursuant to the Housing Act 1988. Section 21 is a no-fault notice, which can be used to end an assured shorthold tenancy, without having to give a reason. If the tenancy commenced after 1st October 2015, then the Landlord must have complied with the prescribed requirements contained in the Deregulation Act 2015, before being able to serve a valid section 21 notice. If the Landlord is unable to serve a valid section 21 notice and the tenant is in breach of the tenancy agreement, the landlord can look to serve a section 8 notice. A section 8 notice requires the landlord to give grounds for seeking possession, which are contained in Schedule 2 of the Housing Act 1988. The most common grounds in this situation are for non-payment of rent or receiving a conviction for some types of offences. A tenant’s conviction for antisocial behaviour or domestic abuse, amongst others, may allow the Landlord to seek possession.
Other Practical Issues
Subletting and Assignment
If a tenant is imprisoned and unable to occupy the property, they may be tempted to sublet or assign their tenancy to another individual. However, most tenancy agreements require the landlord’s written consent for such arrangements. If the property is unlawfully sublet without the landlord’s consent, this could raise practical issues for the landlord when seeking possession.
While the tenant is in prison, their possessions should remain in the rental property and the landlord must not remove or dispose of the tenant’s belongings. The tenancy agreement may set out what happens to the tenant’s possessions in circumstances such as these, failing which, it is likely that the landlord will become an ‘involuntary bailee’ of the possessions and needs to ensure compliance with the Torts (Interference with Goods) Act 1977.
When a tenant goes to prison, it’s essential for both landlords and tenants to be aware of their rights and responsibilities. Communication between both parties is key to navigating this challenging situation and understanding the legal framework is essential to ensure a fair and lawful outcome for all parties involved. If you are unsure, please seek legal advice.
Rhoda Honey – Solicitor – Kitson Boyce LLP Email: firstname.lastname@example.org
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