Renting Homes (Wales) Act 2016: a new process for Abandonment

This is a long form article providing an overview of the rules on abandonment in Wales following the implementation of Renting Homes (Wales) Act (the Act) on 1 December 2022. The information in this article only applies to Wales.

Read our Adviser Online article ‘How renting homes in Wales is due to change for a summary of some of the key changes introduced by the Act.

What is abandonment?

Abandonment occurs when a tenant leaves a property without giving prior notice to the landlord, or formally terminating the tenancy.

Some landlords would attach an abandonment notice to the door of a property left unoccupied for a period of time, stating that the property would be repossessed if it remained unoccupied within a specified period.

As there was historically no formal legal abandonment process, these notices would have little effect and would not formally end a tenancy.

If an occupier returned to an unoccupied property after a lengthy absence, for example, if they were in hospital for a period of time, and found that it had been repossessed by their landlord without proper notification or explanation, then this may have amounted to an illegal eviction.

The safest option landlords had would be to serve a notice to quit and issue a possession claim.

What are the new rules?

As of 1 December 2022, a new procedure applies, allowing landlords to recover possession without the need for a court.

This will only apply where the contract requires that the contract-holder(s) must occupy the property as their only or principal home — this will usually be stipulated as a term within the written statement of an occupation contract. See here for more information on occupation contracts: Occupation contracts — your client’s rights under the Renting Homes (Wales) Act 2016 — AdviserNet (citizensadvice.org.uk)

Where the contract is a joint contract, only one of them needs to be living at the premises in order to satisfy this condition. The landlord might however use a separate exclusion procedure against the others. See here for more information about this here: Joint tenancies vs Joint Contracts: What are the new changes post December 2022? (Extent — Wales) | by Mariam Raza | Adviser online | Nov, 2022 | Medium

Contract-holders will therefore need to be very careful about leaving their home for long periods without telling the landlord, as they may return to find that the contract has ended.

The process is still not risk free for a landlord because if the court finds that the contract should not have been ended under these rules, it may set aside a notice ending the contract and make any other order it thinks fit including one requiring the landlord to provide suitable alternative accommodation or, potentially compensation.

The contract-holder is still in a better position than previously because there is a positive requirement for the landlord to carry out proper investigations before they end the agreement.

What is the process?

Stage 1: First warning notice

A landlord must give the contract-holder a prescribed notice RHW27 https://www.gov.wales/landlords-intention-end-occupation-contract-due-abandonment-form-rhw27 which

1. states that the landlord believes the contract-holder has abandoned the dwelling
2. requires the contract-holder to inform the landlord in writing if they have not [abandoned the dwelling], before the end of the warning period
3. informs the contract holder of the intention to end the contract if, by the end of that period, they are satisfied that the contract-holder has abandoned the dwelling.

A copy of that notice must be given to any lodger or sub-holder of the contract-holder.

The notice can be delivered or left at the property, or at the contract holder’s last known residence or place of business. You can find more information on the legal requirements for giving notice in Section 237 Renting Homes (Wales) Act 2016: https://www.legislation.gov.uk/anaw/2016/1/section/237

Stage 2: Investigation period

A 4-week warning period follows the warning notice. During this period the landlord must make such inquiries as are needed to satisfy themselves that the contract-holder has abandoned the dwelling.

Stage 3: Notice ending the contract

If the landlord is satisfied that the dwelling has been abandoned, a further prescribed notice to be served, RHW28 https://www.gov.wales/end-occupation-contract-due-abandonment-form-rhw28

The landlord may then recover possession of the dwelling without the need for a Court order.

Stage 4: Disposal of property

The landlord must safeguard the contract-holder’s property for 4 weeks from the day the contract ended except where:

1. the property is perishable (for example, food)
2. to safeguard it adequately would involve unreasonable expense or inconvenience, or
3. in the opinion of the landlord the value of it is less than the amount the landlord is entitled to deduct as expenses from the proceedings of selling that property.

If the goods fall into one of those categories, the landlord can dispose of it whenever and however they think fit.

The landlord may also, instead of disposing of the property, arrange to deliver it to the contract-holder or anyone who appears entitled to own or possess it. The landlord must give up the property if they do but can require payment for storing it first.

What if a contract-holder returns to the property?

A Contract-holder can, within 6 months of receiving the notice in Stage 3, apply to the Court for an order if:

1. landlord failed to give the warning notice (Stage 1)
2. landlord failed to carry out the required enquiries (Stage 2)
3. the contract-holder had not abandoned the dwelling and has good reason for not responding to the warning notice
4. when the landlord gave the notice ending the contract (Stage 3), the landlord did not have reasonable grounds for doing so

They would then need to follow the court process, this is detailed within CPR 56, see here https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part56#56.2 :-

Stage 5: Court’s order

If satisfied that one of the grounds are made out, the Court can;

1. make a declaration that the notice ending the contract is of no effect
2. order the landlord to provide suitable alternative accommodation to the contract-holder. The Act sets out how suitability of accommodation is to be assessed.
3. make any other order it thinks fit

Case study — an example of a landlord following the process in practice

Katrina moved into her property on 2nd December 2022. She has a periodic standard occupation contract and her written statement has a term that stipulates she must live in the property as her only and principal home.

Katrina went to Austria to visit her family on 5th December 2022 for the holidays however her father had a stroke and she extended her stay.

She has had to take further time off work to look after her father and she will have to stay in Austria until she can arrange a carer for her father.

Her landlord has tried to contact Katrina for a gas safety inspection. He has been calling, messaging and has visited the property twice since mid-December.

Katrina did not tell her landlord she would be away as she expected to be back in 2 weeks.

The landlord has not heard anything from Katrina and she has now defaulted on January’s rent payment.

The landlord served a warning notice RHW27 of abandonment on 1st February 2023. He posted a copy to the address and sent a copy to Katrina via email and WhatsApp. He also checked her initial tenancy application and sent a copy of the notice to her stated place of work.

The notice period was for 4 weeks, during this period, the landlord visited the property, he checked with neighbours to ask if they’d seen Katrina. Neighbours confirmed that they hadn’t seen Katrina since December. He looked through the letterbox and saw that post was accumulating on the floor in a pile. He continued to email Katrina, he also emailed her tenancy references to ask if anyone had heard from her. He received no response.

After the 4 week period ended, he served a RHW28 notice, citing Katrina has breached the contract by not occupying the property as her only and principal home.

After one month, with no response from Katrina, he entered the property, packed Katrina’s belongings and placed them into storage. He emailed, called and WhatsApped her again to let her know he had her belongings, she again failed to respond.

It is now 6th June 2023 and Katrina has returned to the UK. The property has been re-let to someone else and Katrina does not know where her belongings are. She has called the landlord and the landlord has said he followed the formal abandonment process and there is nothing further he can do. He does still have her belongings in storage and has said she can come and collect them.

Is there anything Katrina can now do?

The landlord has followed the abandonment process correctly and so no issue can be raised with his failure to comply with the requirements.

Katrina could bring a court claim within 6 months of receiving the first notice (served 1st February 2023) however she would need to demonstrate she had not abandoned the property and had good reason for not responding to the notice. It would be for the Judge to decide whether the stress of looking after her father, finding him a carer etc are sufficient reasons for her not to have responded to the warning notice.

Mariam Raza is a housing expert in the Renting Homes Wales Team at Citizens Advice

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