Torts (Interference with Goods) Act 1977
Most landlords will have experienced items of property or what’s legally termed ‘chattels’ left behind after the tenancy has ended and the property vacated. The law governing this situation is the Torts ( Interference with Goods ) Act 1977 Chapter 32 [ known as TIGA 1977 ] Section 12 – ‘Bailee’s power of sale’ being relevant to landlords.
Much has been written but not such that summarises all relevant cases and gives pragmatic advice to landlords. On the one hand, a landlord primarily is often at a loss or else would be able to seek remedy against the holding deposit (provided the tenancy agreement provides for this). On the other hand, there are legal sanctions against a landlord if they don’t act in accordance with the law. This is intended to explain the law and how a landlord can work with this to minimise their voids and financial losses.
‘WRONGFUL INTERFERENCE’ with goods – where
‘CONVERSION’ – taking over the rights of / treating as the owner. Also called ‘Trover’ – the legal right to damages for the value of property appropriated by another.
‘TRESPASS TO GOODS’ – can be as little as touching or moving the goods. If a tenant is in rent arrears, most landlords will know that it is not legal to seize any of their belongings, or to retain, or hold onto them in leiu of a debt.
‘DISTRESS’ – This common law remedy was abolished by the Tribunals Courts and Enforcement Act, 2007 Sec 71
‘DETINUE’ – action by the owner to recover possession from another in who’s custody the goods remain was abolished by TIGA and is now dealt with by ‘Conversion, and Trespass to goods’
‘BAILOR’ – legal owner of the goods (in this case, Tenant)
‘BAILEE’ – a person who has [temporary] possession of the goods ( i.e. Landlord. See later examples )
TIGA Sec 12 Uncollected Goods, – applies to goods in possession of a Bailee, where:
- If the ‘Bailor’ is in breach of obligation to take delivery of the goods, if terms of bailment so provide, or to give directions as to their delivery. or
- The ‘Bailee’ could impose such conditions by giving notice, but is unable to trace or communicate with the bailor, or
- The ‘Bailee’ can reasonably be expected to be relieved of any duty to safeguard the goods on giving notice but is unable to trace or communicate with the Bailor.
Schedule 1, Part1 of TIGA allows for a bailee to impose an obligation on the Bailor to take delivery of the goods or give directions as to their delivery and sets out the method of notification.
If the Bailee has also given notice in accordance with Part II of Schedule1 of intention to sell the goods or has failed to trace / communicate with the bailor with a view to giving him notice, after having taken reasonable steps [ my emphasis ] and is reasonably satisfied the bailor owns the goods, shall be entitled to sell the goods.
The Bailee can’t give a notice of intention or sell goods (Part II) if there is a dispute about all or part of what the Bailee claims to be due to him in respect of the goods (this is not what some have written as referring to any monies owed whatsoever by the Bailor – tenant, i.e. outstanding rent).
Also, if the Bailee claims any monies due in connection with those goods, the Notice period for sale / disposal shall be 3 months. [ Schedule 1, Part II section 6(3) ]
Let’s look at what are the duties of a Bailee
At common law, a person may become a Bailee by voluntarily and knowingly taking possession of goods belonging to another. A Bailee has a wide range of duties, including the duty to take reasonable care of the goods in the bailee’s possession.
Examples of this are where an item may be taken to a tradesperson, such as a jeweller, cobbler etc. That person knowingly takes temporary custody of the item and you’ll commonly notice conditions on receipts setting out time limits, often 3 months before the item can be disposed of [ as at Sch 1, Part II section 6(3) above ].
An Involuntary Bailee is a person who has, without their consent, found themselves in possession of goods belonging to another. In the context of rental property, this may arise where a tenant has left goods at the property after the end of the tenancy.
An Involuntary Bailee does not owe the same duties as a Bailee. They must not deliberately or recklessly damage or destroy the goods, and try to facilitate return of the goods to the owner, or persons delegated to receive them on their behalf.
Elvin & Powell Ltd v Plummer Roddis Ltd 1933
Shop passed on goods ordered by a fraudulent purchaser. HELD: Shop was an involuntary bailee of goods ordered, unwittingly by the fraudster. Shop not liable in damages to the true owner of the goods, because it had acted reasonably.
This case produced the classic statement of the liability of an Involuntary Bailee in the judgement of Justice Hawke “An Involuntary Bailee has an obligation to do what was right and reasonable.”
Duties of an Involuntary Bailee were again discussed in…
Houghland v R R Low 1962
Coach passenger transferred from defective vehicle to another. At end of journey, her bag could not be located.
HELD: The duty of care of a bailee is the standard one. It is for the person in possession of the goods [passenger] to prove any loss or damage to goods in their possession is not caused by their own actions or fault. Where the defendants possession of the goods was unintentional and there was no lack of care, detinue [ now wrongful interference ] will not lie.
LJ Ormrod said “It seems to me that to try to put a bailment into a watertight compartment – such as gratuitous bailment on the one hand, and bailment for reward on the other – is to overlook the fact that there might well be an infinite variety of cases which might come into one or the other category. The question we have to consider in a case of this kind (if it is necessary to consider negligence) is whether in the circumstances of this particular case a sufficient standard of care has been observed by the defendants or their servants”
Just as in the pre-contract receipts from jewellers etc mentioned above, its good practice for a tenancy agreement to have a clause dealing with this eventuality. Most agreements do, either in terms of requiring the tenant to give up Vacant possession at the end of their tenancy – legal occupation of the property, or stating what will happen if goods are left.
Cumberland Consolidated Holdings Ltd v Ireland : CA 1946
A warehouse had been left with rubbish – bags of hardened cement in its cellars, affecting the value of the property and precluded proper use of the cellar.
HELD: Vacant Possession NOT given. In terms of items left behind, just any physical impediment will not necessarily preclude vacant possession. “The impediment must substantially prevent or interfere with the enjoyment of the right of possession of a substantial part of the property”.
NYK Logistics (UK) v Ibrend Estates BV 2011
NYK served notice to implement their break clause, but retained employees on the site for a few days afterwards clearing their possessions. Immediately before the break clause date, they sought permission for this ‘extension’ from the owner Ibrend Estates although no response was received.
HELD: that property had to be significantly empty of chattels and people for vacant possession to be given. The Cumberland case was quoted and the decision upheld on Appeal.
Tenancy agreement clauses
Eminent legal advice has been to tread carefully with regard to tenants uncollected goods to avoid claims for damages and some recent cases that help with some guidance are outlined.
The requirement to have a pre-defined clause that deals with what should happen in the event of goods being left behind is recognised good practice, however the Unfair terms in tenancy agreements (see below) has been overly prescriptive and not proportionate to allow landlords to deal with a few low value items of furniture. Where the loss of a week’s rent would far outweigh the value of items knowingly left behind by the tenant, let alone retaining them in the property, effectively creating a month’s rental void.
Office of Fair Trading OFT365
Guidance on unfair terms in tenancy agreements September 2005
“This document issued by the Office of Fair Trading (OFT) has been withdrawn. This document did not take account of developments in case law, legislation, or practices since its original publication. It should not be relied on either as a statement of the law or Competition and Marketing Authority [ CMA ] policy.
Current CMA Guidance on unfair contract terms can be found at Unfair contract terms: CMA37, which replaced all previous OFT / CMA guidance on unfair contract terms when the Consumer Rights Act came into force on 1st October 2015. Other information on the CMA’s consumer powers can be found in Consumer protection enforcement Guidance CMA58.”
Previous Unfair Terms
The tenant must pay a minimum charge of £100 to remove furniture left behind.
Way of revising term
The landlord will give the tenant notice that he considers that items have not been cleared and if the tenant has failed to collect the items promptly thereafter, the tenant will be liable for all reasonable costs of disposal.
Goods belonging to the tenant
In the event that the tenant’s belongings are left in the property after the tenant has vacated it, such belongings will be deemed abandoned and the landlord may remove, sell or dispose of these without being liable to pay for any compensation. The tenant will be liable for all costs of removal and disposal or any other losses and these costs and losses may be taken out of any deposit.
Way of revising term
The tenant will be responsible for meeting all reasonable removal and/or storage charges when items are left in the premises. The landlord will remove and store them for a maximum of one month. The landlord will notify the tenant at the last known address. If the items are not collected within one month, the landlord may dispose of the items and the tenant will be liable for the reasonable costs of disposal. The costs may be deducted from any sale proceeds or the deposit and if there are any costs remaining they will remain the tenant’s liability.
In any event, as stated above, this has been Withdrawn and replaced by CMA37
Now that the above prohibitive unfair term (to Landlords) has been removed, we turn to look at the Consumer Marketing Authorities replacement guidance
In short (as CMA37 is some 144 pages), there is now black-listed terms, such as those that waiver serious illness or even death upon fault or claim against the supplier/business, and Grey-listed terms that could in some circumstances be unfair (still subject to determination by the courts of law of course). Suffice to say, the proposals for dealing with Uncollected Goods via TIGA are not at variance. In fact, the Unfair enforcement powers [para 5.32 below] actually provide for how this should be dealt with.
The fairness test – section 62 2.10
A term is unfair ‘if, contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer.’
The fairness test thus includes the following main elements: significant imbalance to the detriment of the consumer and good faith. It must, however, be emphasised that the overall requirement is a unitary one – the question is whether a term is unfair. The elements of the test are recognised as being capable of overlapping with each other in their application to any particular set of relevant facts. A rigid approach to assessing fairness, involving an artificial exercise broken into separate parts, is not appropriate.’
I would suggest that landlords rely on the ‘fairness test and good faith’ in the actions they carry out by inserting a suggested clause in the Tenancy agreement, and promptly using the TIGA Notice with the timescale suggested. Fairness to both sides is the contractual agreement [AST] that stipulates the landlord offers the use of the property between the agreed dates for the agreed amount. Outside of these dates the property owner has to rely on other tenancies to fund the mortgage and financial burdens of a landlord.
There is no detriment to the consumer. Its common practice to pay for what you use. Try leaving luggage in a hotel whilst you go away on holiday or asking to park your car there without charge, the landlord’s circumstances are no different. As for ‘Good faith’, both parties expect each other to abide by the terms of the agreement, ‘end of’. [ the tenant signing to give vacant possession and cease using the property upon termination of the tenancy ]
There is nothing in the proposed tenancy clause suggested (see later, after stated case of Campbell v Redstone) or the subsequent use of the TIGA notice that contravenes the guidance replaced by CMA37, in fact the contrary.
Consumers’ circumstances – how they behave in practice
‘2.25 Economic research has drawn attention to a number of factors that the CMA considers are potentially relevant to the assessment of fairness. One of these is that most consumers do not read standard written contracts thoroughly before making a purchase.
2.26 This finding cannot be considered surprising, and it is not clear how it would be practical or economically efficient for consumers generally always to read all the terms of all contracts into which they enter, given the number of transactions in which they are involved and other claims on their time. It remains important that terms should be transparent, since those who do read them should be properly informed. But lack of time and ability to do so is an important source of consumer vulnerability that unfair terms legislation seeks to address.’
How does a landlord address this concern, as in fact his dealings with letting agents often reveal the same trait, ‘Where do I sign?’ without taking the time to read several pages of small text (not advised).
A recommended practice is to send a copy of the draft tenancy agreement (unsigned) to the tenant by email, receiving acknowledgement. When a tenant is met at commencement of the agreement to go through the inventory, ask ALL tenants to sign at the bottom of EVERY page of the AST. They could particularly be asked to initial the paragraph dealing with giving up vacant possession.
5.6.4 The CMA has no objection to terms which, for example, allow the trader to charge reasonably for dealing with problems which arise owing to the consumer’s fault (but see paragraph 6 of the grey list at paragraphs 5.14.1 to 5.14.10 on the need to avoid imposing any unfair financial sanction – none of which impact on uncollected goods, especially where no charge is being claimed).
Unfair Enforcement Powers
5.32.5 The law [Torts (Interference with Goods) Act 1977] makes detailed provision as to how such goods should normally be treated. A contract need not reflect these rules in detail, provided it does not override or contradict them. Terms are unlikely to be considered fair if they indicate that goods may be sold immediately, or without adequate notice of the date and place of the sale, and particularly if they exclude the duties to obtain the best price that can reasonably be got and to refund any surplus obtained. ‘
(Importantly, note the omission of a time, such as a month in the previous OFT365 guidance repealed by CMA37 on 1st October 2015)
Dealing with some recent stated cases
Da Rocha-Afodu v Mortgage Express Ltd, 2014
Concerning disposal of tenants ‘chattels’ after tenancy.
Da Rocha had a tenancy of a dwelling and fell into arrears. The mortgagee sought Possession. After several suspended possession orders, on 4/9/2006 Da Rocha was served with eviction notice and a letter accompanying, warning him to ‘leave the property with all your belongings before this date and time’. 9/9/2006
There were several subsequent visits by the tenant to remove ‘some’ of his possession well after this time and subsequent warning notices.
On a fourth visit some two months later, the tenant visited to find that the mortgagee’s contractors had removed and disposed all his possessions. The claim for value of the goods was £800,000! Although un-evidenced and sceptically received by the judges.
The Court of Appeal judges held that the tenant had an obligation to deliver up vacant possession on execution of the warrant.
They held (re-affirming) that the duties of an involuntary bailee was to do what was right and reasonable.
The claimant contested the mortgagee had breached the terms and conditions of the mortgage agreement, Section 9 which stated that steps would not be taken for a period of 7 days. The period running from date notice was given to the mortgagors at their new address or, if no such address was given, 7 days after they left the property.
The Judge Held that as no new address for correspondence was ever provided, Mortgage Express were NOT liable for breach of the mortgage conditions. Its worth repeating those conditions verbatum here:
Mortgage conditions Section 9
“The following will apply if we take possession of the property:
➀ If you have left any goods or animals at the property, we may take the following steps on your behalf and at your expense. Firstly, we may remove and store the goods and animals.
➁ ‘Then’ (this word was deliberated as having preferably been drafted as, ‘ OR’ – but did not impact the outcome).
➂ We may either dispose of them or if we know that they do not belong to you, return them to their owner.
➃ We will only take the steps mentioned in the previous paragraph if you have not removed the goods or animals:
– within 7 days after we have written to you at your new address asking you to remove them, or
– if you have not given us your new address, within 7 days after you left the property.
➄ Nothing in the first paragraph of this condition gives us any charge over any goods or animals left at the property. For example, we cannot keep the income from the sale of any goods or animals.”
The tenant’s appeal was dismissed.
Another Mortgage re-possession later that year
Campbell v Redstone Mortgages Ltd, 2014
This was a £500,000 mortgage that after many suspended possession orders since 2007 and part repayments, was eventually granted in 2014.
The mortgage issue agreement contained clause 6.1, 6.2 ‘Your Furniture and Personal Possessions’
“6.1 If we [i.e. Redstone] or a receiver take possession of the property, you [i.e. Miss Campbell] must, on Notice, remove all of your furniture and belongings. If you have not done so within 7 days of the Notice, we may as your agents remove, store or sell any items left behind.
6.2 Neither we nor the receiver will be responsible for any resulting loss or damage to your possessions. You must reimburse us for all our expenses of dealing with your furniture and goods. If we sell any of them we will pay you what’s left after deduction of those expenses…”
Evidence was also admitted that estate agents acting for the Mortgagee also displayed similar notices at the property, pursuant to T.I.G.A 1977.
There followed protests, demonstrations, writs to prevent mortgagee from continuing to remove goods, refused permissions to appeal, High Court Enforcement bailiffs, etc.
A number of visits to the property were made by tenants after the warrant for possession to remove items but retrieved very little and were designed to frustrate the re-possession including barricading themselves inside. Eventually after more notices and several opportunities to remove goods, about a dozen van full of items were removed by contractors acting for the mortgagee and disposed of.
A subsequent claim for the mortgagees to deposit £1 million on account to the court pending a trial for damages was also dismissed.
A warning tale about evidencing possessions
Diaz v Karim 2017 – Trespass to Goods
Mr Diaz was a law student renting a room and was evicted and his possession removed by the landlord. A separate trial on that matter was ongoing but this case involved a claim for damages of £1 million(!) claiming that amongst the possession removed from Mr Diaz’ letting was, various I.T equipment, 3 emerald gemstones value £250k, a 1487 rare book valued at £110k and a 1383 bible he paid £15k but was valued at £1.65 million! The landlord totally denied taking any possessions. There were no witnesses that attended court.
Mr Diaz was on Job seekers allowance. There was details of his purchase and ownership of the items questioned at length in court with the judge finding his account wholly incredible, awarding a nominal £5,000 for possessions that could be reliably inferred.
What’s to learn from these cases
Starting with the selection of tenants, thorough referencing and obtaining various contact and next of kin details. (see Referencing Tenants)
Including a clause in the tenancy agreement, further to vacant possession being required, as to action taken in conjunction with TIGA in the event of any goods left at the property. A landlord may wish to use a clause similar to the mortgagees in the two cases stated above, remaining mindful of the clause not conflicting with TIGA or the CMA.
What are the circumstances of the tenancy ending?
Has the tenant notified their intention to leave and end their tenancy? If so, this should ideally be in are recordable form (at the very least, text message).
If there has been no communication from the tenant about ending their tenancy, is the property believed to be abandoned? If so, be very wary of moving any tenant possessions until either the Abandonment process of the Housing and Planning Act, 2016, Sec 57-63 have been complied with, or else a court order for Possession has been obtained and Possession facilitated by bailiffs.
If there has not been communication about ending a tenancy, a landlord should be very wary about their grounds for even entering the property, as this should only be in an emergency or to secure the premises. In these circumstances, enter with a witness over 18 years of age and ideally, independent.
In cases where there hasn’t been indication of surrendering the tenancy, be mindful that any goods remaining might actually be evidence of a tenants continuing occupation or intention to return.
On such occasions, the alternative contact details for a tenant can facilitate a response confirming their intentions, helpfully pointing out their financially liability (and that of a guarantor, if there is one) continues until they’ve given acceptable notice of their surrender.
Take Photographs of the property, that includes what is, and isn’t present!
Where a tenants indicated their leaving, a check-out inspection shortly before their departure, and afterwards confirms ‘vacant possession’ and without damage deductions claims, deal with the deposit with 10 working days of the end of the tenancy.
So a tenant has left some rubbish, take some photographs and brief description of the refuse (so you have some evidence it was rubbish if there’s a subsequent claim). There may be a partial deposit claim for this which your evidence will help secure. Provided you are satisfied and feel confident you can prove its rubbish, it can be disposed of.
Any other goods need to be recorded on an inventory as they will be listed on the schedule of items sent with the TIGA Notice.
Having persevered through the legislation, there now comes the practical aspects of dealing with whatever goods remain. It needs always to be borne in mind, that a landlord may have to demonstrate he is doing what is “right and reasonable” (Justice Hawke, Elvin & Powell Ltd v Plummer Roddis Ltd, 1933. – Held as the liability of an Involuntary Bailee, and referred to since that time).
The origin of the legal definition of a ‘reasonable man’ is said in legal dictionaries to emanate from a 1872 Civil trial of Titchbourne v Lushington, (the later) Lord Bowen describes reasonable as what the man on the Clapham omnibus would regard as such. A description of such a person [passenger] was a ‘reasonably intelligent and impartial person unversed in legal esoterica [complexities] In contemporary parlance, its still used as ‘the man in the street’ (and adding the Museum photo of Nixeys horse-drawn bus).
Attending a property after tenants prior notice has been given that tenants vacated.
For this purpose, we are assuming no damage – deposit deductions, other than what might arise from expenses of dealing with property restoration to vacant possession.
We find the following items (as an example) the below list being compiled by our independent witness, and photographed, in situ.
Items left by tenant
- Sofa, 2 seater smelling a little musty and evidence of staining. In well-used condition. No manufacturer details or firelabel
- Double-Wardrobe in front bedroom, empty apart from one dirty tie lying on the floor. Wardrobe is a chip-board laminate construction, loose hinge and ill-fitting door.
- Electric 4 ring cooker, Creda manufacturer. In dirty condition with defective oven door that does not remain closed. Still connected, only 2 rings operating.
- Picture on wall in front lounge of country forest setting, signed by artist who’s name is unreadable.
- Dark Wooden side-board cabinet, 800mm wide, 300 deep and 650 high. Appears solid wood, no manufacturer details visible. Drawers contain some family photographs some of which are believed depicting the last tenant.
From the last landlord inspection visit on (date), there were numerous items of tenants furniture that have found to have been removed, such as 3 seater settee, flat-screen television, fridge and beds from both bedrooms.
The in-built wardrobe in rear main bedroom is empty of clothing apart from a dirty shirt lying dishevelled on the bottom.
What does the above inventory say – infer? ~ that the tenant has taken a substantial amount of their possessions [ what they wanted? ] and left behind a small number of low value, dirty and partly defective items.
Immediately a schedule of the items – just their underlined broad description, not including condition, will be entered onto the TIGA Notice and sent to any next of kin or forwarding address that landlord has been supplied.
If there isn’t an alternative address, TIGA Notice to be posted ‘Recorded Delivery’ to the tenant at the property address. Reason: Recorded delivery, because that’s the method stated in the TIGA legislation, and to the tenanted address, that you believe they’ve left (and probably won’t receive) in case the tenant has set up a mail forwarding arrangement with the Post office. Also, you’ll have the recorded delivery receipt to show your actions.
If the last tenant was in receipt of housing benefit, contact the Local Authority Housing department, ask to speak with their Tenant Relations Officer (if they have a designated TRO) or someone from that department. Your enquiry is in case the tenant may have approached them to seek assistance with alternative accommodation.
If that is the case, don’t expect any data such as current address to be disclosed, however you are informing a third party who has contact with the last tenant, that you are trying to facilitate the return of their goods (perhaps even offering to forward the TIGA Notice, if they’ll pass that on). If this line of enquiry is fruitless, all its cost you is a telephone call (and follow up email, taking details of person you spoke with as a summary email of your conversation for your evidence of… ‘doing what is right and reasonable.’)
The landlord will be well advised to note details of the provision (or lack of) second-hand furniture outlets in that nearest town [only], as its not going to be cost effective, given the items value to travel any further.
Apart from antique dealers, second-hand furniture re-sellers are few and far between. Try an internet search for the town nearest one of your rental properties. Most of the results will be charity shops that take in reasonable quality re-saleable furniture donated for them to sell in middle to upper double-figures to raise money for their (worthy) cause.
If an internet search reveals one seller, you could contact them and offer to send a decent photograph of an item that could be saleable. In the inventory list above, that might possibly be only the solid wooden side-board.
The furniture shop, may decline your offer to even receive the photograph, as they ‘only deal in antique pine’, note their name and time of your call. Perhaps you can show, send a photograph by email to one of the charity shops? If they don’t want to take it, that really speaks volumes. Take a screenshot of your internet search (it’ll be time and dated).
Have you done everything that is reasonable? The stated cases of Da Rocha, and Campbell would suggest so (and there was far more at stake there). 7 days notice was enough in those cases, although subsequent notices and a further period was given prior to disposal. These cases were prior to the CMA37 when the previous OFT365’s ‘revised term for Goods belonging to the tenant’ suggested the landlord’s terms were to retain for up to a month – weren’t even raised let alone challenged.
In a tenancy where low value items are involved, even the Consumer Marketing Authority is now of improved assistance to landlords, with the Fairness Test relying on the ‘significant imbalance, detriment to the consumer and good faith.’
Establish an independent view of the value of uncollected goods (would your independent witness have the items in their home?) and how does that stack-up against the cost to the landlord of 7 days [ TIGA Notice period ] of rent – ‘significant imbalance’ – in landlord’s favour?
Detriment to the customer – tenant has ‘chosen what items to take’ and left the remainder, knowing the terms of their tenancy, i.e. Vacant Possession. If the tenant was, acting in good faith and experiencing short-term difficulties in removing large items, the landlord’s permission could have been sought.
7 days later, if there’s been no response to the TIGA Notice, landlord considers options.
If there’s an outbuilding where the solid wooden cupboard and picture can be stored, that may be an option or offered to a charity shop. If this is the case, it may be useful to see what prices their asking for that or other similar second-hand pieces of furniture. If not, remove the family photographs and the wall picture for a further short period, possibly another 14 days, because these items are portable and wont be difficult to temporarily retain. By doing this, it adds to the Right and Reasonable evidence (protects against accusations from tenant, ‘my landlord – skipped the lot’).
The remainder of the items can be disposed of to the Civic amenity recycling centre.
All landlord actions documented and recorded that show reasonable conduct.
The actions against landlords that have been raised at court are mainly outright illegal eviction where a tenant’s possessions have been removed and dumped / outside and locks changed (in which case, there’s a lot more to worry about that a claim for their possessions) or, inflated claims such as those outlined in the cases of Da Rocha and Diaz above.
Instances where tenants have left low value bulky items and have brought claims against a landlord are practically unknown (if someone does know of an unreported case, please let us know).
This is primarily because there is no legal aid available for Trespass or damage to goods and a solicitor is going to want to be assured that there is significant sum at stake and prospect of success before taking a conditional fee arrangement (No-win, no-fee). The tenant is unlikely to have the funds to initiate a legal action.
How a landlord is able to show they’ve done what was ‘right and reasonable’ can be influenced largely by acting with the knowledge and suggestions of this paper – your feedback is welcome.
Stated cases, legislation [ TIGA ] and now the CMA align, so the only remaining anomaly is the How to Rent Guide! See ‘Clear Up‘ below.
Landlords may wish to forward the below email, or compose one themselves, to: firstname.lastname@example.org
From: ‘a Landlord’s email address’
Subject: F.A.O. – Authors / Responsible for How to Rent Guide
I’d like to draw attention to an error, or misleading statement in the How to Rent Guide:
“Remove all your possessions, clean the house, take meter readings, return all the keys and give a forwarding address. The landlord is entitled to dispose of possessions left in the property after, typically, 14 days.”
The CMA OFT365 previously suggested that this ‘period where a landlord had to give a tenant [ Bailor, as they’re known in the Tort’s (Interference with Goods) Act 1977 ] notice to remove any leftover goods, was up to 28 days.
This has been withdrawn (stated as did not take account of developments in case law, legislation, or practices since its original publication. It should not be relied on either as a statement of the law or CMA policy) and CMA 37, para 5.32.5 now deals with the issue as the landlord having to be fair and abide by the Torts Act, as quoted above.
The legal position in accordance with the Torts legislation, is that the landlord must give the tenant a notice complying with Section 12 (1) and (3) of Intention to Collect and sell goods.
Da Rocha-Afodu v Mortgage Express Ltd, 2014 and Campbell v Redstone Mortgages Ltd 2014
Both these served Notices giving 7 days for tenants to remove all their goods and were Upheld by the Appeal courts.
The CMA37 refers to The Fairness Test, and there being ‘No significant imbalance between the parties to a contract, No detriment to the consumer and good faith’.
Where the tenancy agreement / legal contract agreed between both parties to which their equally bound, provides for the Tenant paying rent until the end of their tenancy, whereupon they agree to give up vacant possession – there is NO imbalance, let alone significant imbalance.
Landlords have to move the property on to the many waiting tenants for accommodation, whilst the landlord still has to service the financial commitments. As for ‘Good faith’ – the expectation and practice of good faith, is both parties keeping to what they’ve agreed and committed to.
In cases where tenants have left some used bulky furniture behind, AFTER they’ve chosen to remove the rest of their belongings, can not be Fair to a landlord where the value of the items is next to worthless. Tenant has had every opportunity to remove them with the rest of their possessions and their value is far out-weighed by 7 days loss of rent.
Case law above has referred back to and upheld the duties of an Involuntary Bailee (landlord) as having to do no more than what was ‘right and reasonable’.
Where a tenant has ‘chosen’ not to remove goods, eminent case law above has decided that a 7 day Tort compliant notice is sufficient (even where the property was of substantial value).
Leaflets that purport to suggest otherwise than the law are not helpful to tenants, or landlords and will only serve to keep more property unavailable for accommodation for longer than is necessary.
There is also case law on goods left in a property after a tenancy has ended, as constituting the tenant NOT having given up Vacant possession, and thereby, still liable for rent:
Cumberland Consolidated Holdings Ltd v Ireland 1946, and more recently, Ibrend Estates BV v NYK (UK) Logistics Ltd 2011.
Can I suggest the relevant part of the How to Rent guidance is updated to reflect ‘Fairness to ALL parties’, and of course, legally compliant.