Landlord wants arrange viewings when tenant is absent

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  • sparkie
    replied
    Originally posted by Lawcruncher View Post
    We can start by looking at a statutory provision. Section 11 (6) of the Landlord and Tenant Act 1985 says:

    In a lease in which the lessor's repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours? notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.

    Does "writing" also include emails?

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  • islandgirl
    replied
    Thank you Lawcruncher - very interesting indeed.

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  • havensRus
    replied
    Originally posted by Lawcruncher View Post
    I had to smile at this one. Here we have a tenant who is being more than co-operative and the landlord wonders if there is a catch.
    Ironic isn't it!!

    Be happy the T is being co-operative and get on with it!!

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  • Direct
    replied
    @LawCruncher: ah yes, I share your sense of irony
    @everyone else: thanks for your comments. I think I'll try to make sure I only take viewings when the tenant is present.

    Leave a comment:


  • Ericthelobster
    replied
    Originally posted by Direct View Post
    Am I worrying too much? Any thoughts or opinions are welcome.
    Are you concerned about a fabricated accusation of theft against you by the tenant? In which case I agree with Lawcruncher... or are you concerned that a prospective tenant might actually nick something? That might be a more well-founded worry, and I certainly wouldn't be letting them wander round any rooms unaccompanied.

    Leave a comment:


  • Lawcruncher
    replied
    I had to smile at this one. Here we have a tenant who is being more than co-operative and the landlord wonders if there is a catch.

    Leave a comment:


  • davidjohnbutton
    replied
    There is a risk that either you or the viewer could be accused of either damaging something or taking something from the property which belongs to the tenant.

    If the tenant does make any accusation of theft, then it is likely that both you and viewer could be arrested and your homes and vehicles searched.

    Personally, I would not do it, but if there is no option, then I would have a third party - a neighbour near the property perhaps or a friend of the tenant, to go in with you and act as an independent witness - but even that is not 100% guarantee - small things could be slipped in pockets type of accusation for example.

    Leave a comment:


  • Direct
    replied
    Viewings in the absence of the tenant

    My tenant has given notice and is content that I should conduct viewings before the end of the tenancy, as per our agreement. Recently when I have rung to arrange a viewing, my tenant has asked me to conduct the viewing in her absence, since she was away for a few days. I have said this is fine but now it has occurred to me that there might be a slight risk attached to this arrangement. Am I worrying too much? Any thoughts or opinions are welcome.

    Leave a comment:


  • Lawcruncher
    replied
    Originally posted by islandgirl View Post
    I would love to know if anyone had ever won a case where they took the tenant to court because he refused viewings. Surely it would be extremely difficult to prove that someone did not buy a house because they could not view it at a specific time for example. Would the "quiet enjoyment" issue not play a part also? I think I would take my chances and change the locks having first written to inform the LL / Agent that I would not allow viewings when I was not in the house. I would however also list all the times I would be there (eg prior to or after the holiday) and during which I would be prepared to allow viewings in order to be fair and reasonable.
    I repeat what I have said elsewhere (though whether or not it was on this forum I cannot recall):

    I am not aware of any decided cases that have clarified the law, especially with regard to residential property, but the following is what I think the law is.

    We can start by looking at a statutory provision. Section 11 (6) of the Landlord and Tenant Act 1985 says:

    In a lease in which the lessor's repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours? notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.

    Three observations may be made:

    1. This is a statutory provision. It cannot be the case that the right is not exercisable in any circumstances as that would be a nonsense. Statute does not give rights that cannot be exercised.

    2. If taken literally, i.e. that once notice is given the landlord may enter, the right would still have to be exercsied reasonably.

    3. The right only extends to making inspections to view the condition of the property. Does mean there is no right to enter to carry out repairs? I do not think so. If a person has an obligation there has to be an implication that, acting reasonably, he can do what he needs to do to carry out that obligation. Accordingly, ancillary rights of entry must go with an obligation to repair.

    But, strictly, the statute does not give the landlord any rights as such, it only implies a covenant by the tenant that the landlord may have access for the purpose stated. That means the obligation can be treated as if it were an obligation written into the tenancy agreement. As suggested above, it would be nonsense for statute to imply an obligation that cannot be enforced. There are cases where statute specifically negates provisions in tenancy agreements, but a right of entry is not one of them. This obviously has to be the case as any such provision would negate section 11(6).

    So we have the position where a tenancy agreement will either contain an express provision allowing access or one implied by statute. To what extent and in what circumstances can the tenant's obligation be enforced? Well, the obligation comes into conflict with the tenant's right to quiet enjoyment. How is the conflict to be resolved? On the one hand the tenant has the right to have his occupation undisturbed, but on the other the landlord may need to get into the property for very good reasons. The property is the tenant's home, but the landlord has the right to take steps necessary to preserve the value of his property - regular, if infrequent, inspections are part of good estate management and are to be encouraged in the interest of both landlord and tenant.

    It is often suggested that access can only be with the tenant's consent. I think that is correct, but only up to a point. There has to come a time where the landlord can insist on access; if he cannot, then (and I apologise for labouring the point) it would mean that statute has afforded him something he cannot ultimately fall back on. We can safely say that a landlord would be entitled to enter if he obtained a court order and I can see no reason for a court to refuse to grant an order if the landlord's reasons for wanting access are reasonable. But applying to the court takes time and money. Can a landlord faced with an intransigent tenant who has refused repeated requests for access for a reasonable purpose allowed by the terms of the tenancy indulge in a little self help? I would tentatively, and I emphasise tentatively, say that he can, so long as he does so reasonably and causing the minimum of disturbance.

    The above deals with access for inspection to see if repairs are necessary and to carry out repairs. Many tenancy agreements contain provisions allowing access for prospective purchasers and/or tenants to view. It can be stated categorically that in the absence of such a provision that the tenant is under no obligation to allow access for that purpose. But what if it is there? Here, I think that a landlord's position is much weaker. If a tenant refuses access I am not sure there is a lot a landlord can do. Turning up with a prospective buyer or tenant and forcing your way in or gaining entry in the tenant's absence is going to be a breach of the covenant for quiet enjoyment.

    But all the above is only the law - or at least what I think is the law. It is of course important that landlord and tenant should keep the law in mind, but it is not helpful if entrenched positions are adopted. It is a classic case where there are rights, but that those rights are rarely going to be enforced by resort to litigation.

    Landlords (and their agents) should bear in mind that the property is the tenant's home. A polite request to allow access is far more likely to be responded to positively than a peremptory demand.

    Tenants should bear in mind that landlords may have perfectly legitimate reasons for wanting access. After all, if access were needed to carry out some essential repair, such as fixing a leak or reparing the central heating, a tenant would soon come to an accommodation.

    There needs to be give and take.

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  • Paragon
    replied
    Originally posted by lusonavigator View Post
    I had to take a decision and ended up making an agreement that all viewings have to be communicated with at least a day's notice and dependent upon a person of my trust being available to accompany. i thought that changing the locks would not only throw the good relationship with the LL down the drain (much needed for my deposit return!!) and that he could action a court order.
    To all the participants a big thanks for the discussion and points of view that in many ways are better than ones provided by public service!!
    Very good decision! If something happened to the property because there was no access - you could be dragged thru courts for the rest of your life and potentially be liable for substantial damages as one never knows what a court's decision may be. That is why most cases are settled out of court. Even the Inland Revenue with their battery of lawyers only wins 50% of the time. This, however, is only one person's opinion.

    Leave a comment:


  • lusonavigator
    replied
    I had to take a decision and ended up making an agreement that all viewings have to be communicated with at least a day's notice and dependent upon a person of my trust being available to accompany. i thought that changing the locks would not only throw the good relationship with the LL down the drain (much needed for my deposit return!!) and that he could action a court order.
    To all the participants a big thanks for the discussion and points of view that in many ways are better than ones provided by public service!!

    Leave a comment:


  • islandgirl
    replied
    I did read post 5 which is why I asked the question
    Holiday was arranged before notice issued
    I am sure he read the tenancy agreement - there are usually lots of fairly unenforceable things in them. Mine says I have a right to throw out the tenant if rent unpaid for 14 days...in real life, however......

    Leave a comment:


  • Telometer
    replied
    Islandgirl see #5.

    OP should have thought about this before arranging holiday. Difficult, but true. It's not as though OP didn't read the Tenancy Agreement before signing it...

    Leave a comment:


  • islandgirl
    replied
    I would love to know if anyone had ever won a case where they took the tenant to court because he refused viewings. Surely it would be extremely difficult to prove that someone did not buy a house because they could not view it at a specific time for example. Would the "quiet enjoyment" issue not play a part also? I think I would take my chances and change the locks having first written to inform the LL / Agent that I would not allow viewings when I was not in the house. I would however also list all the times I would be there (eg prior to or after the holiday) and during which I would be prepared to allow viewings in order to be fair and reasonable.

    Leave a comment:


  • Lawcruncher
    replied
    Originally posted by P.Pilcher View Post
    You are entitled, in law, to refuse any inspections/viewings despite anything it states in your tenancy agreement.
    Whilst for most practical purposes this may be the case, the law is as follows:

    1. If a tenant has a contractual obligation to allow the landlord to enter or to allow inspections by prospective tenants or buyers, he is bound by the obligation. A tenant who fails to comply with the obligation is potentially liable for any loss that a landlord suffers.

    2. The landlord cannot exercise the right without the tenant's consent or a court order.

    Leave a comment:

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