L's right of access for inspection or viewing?

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  • jpkeates
    replied
    Originally posted by jjlandlord View Post
    You've completely missed my point, haven't you?
    I hope not.
    I think I have understood your point and disagree with it.

    You're suggesting that we should analyse and understand the legal situation and give advice based on that understanding.
    I'm suggesting that we don't do that.
    It's too complicated and confuses people.

    "Unless it's a life threatening emergency, you cannot enter a property if the tenant refuses entry" is not correct, but it's actually helpful.
    A five page essay that outlines the correct situation is not useful to most people.

    Leave a comment:


  • jjlandlord
    replied
    You've completely missed my point, haven't you?

    Leave a comment:


  • jpkeates
    replied
    But we're* not in a position to prevent a fiasco like Superstrike.
    We're in the position of dealing with the consequences that arise from it.

    *Well I'm not, apologies if you're an MP or judge,

    The advice that we should give a landlord is to re-issue the Prescribed Information when an AST goes Periodic.
    That might be pointless (and I think it is), confuses the tenant (which I think it does) and the judge in Superstrike might have got the law wrong.
    But none of that helps a landlord when he want to know what to do when his lease goes periodic.

    And none of this is anything to do with your point about notice and emergencies, which I think is correct.

    Leave a comment:


  • jjlandlord
    replied
    Except that there cannot be sound advice before the relevant legislation is analysed and understood (as much as possible).
    Not reading, and not understanding the legislation is how we end up with fiascos like Superstrike.

    As for emergencies, it is clear and beyond doubt that no notice is require. A landlord entering in case of a genuine emergency will not even have to defend himself in court.
    Giving 24hour notice in writing upon a genuine emergency is nonsensical. The law recognises it explicitly. This is clearly no a case of interest.

    Leave a comment:


  • jpkeates
    replied
    There's a difference between arguing an intellectual point of law and giving practical advice.

    If a tenant refuses to allow a landlord to enter (even if the landlord believes that they have a valid reason to enter) the landlord should be advised to get a court order in order to obtain entry.
    Debate about quiet enjoyment vs exclusive possession and what constitutes an emergency is interesting (to me at least) but not actually helpful.

    I'm happy to be wrong about the intellectual debate (it doesn't really matter if I'm right or not).
    I'm less happy to give someone suspect advice based on my brilliant analysis from the safety of my computer.

    There's a reason that professional landlords like housing associations, local authorities and utility companies routinely get court orders in order to enter premises over the tenants objection (or even when they're slower to agree than is helpful).
    Courts have entire days and whole courts (multiple) every week dedicated to issuing these type of order.
    They're not doing it because no one's thought through the legal position carefully enough.
    They're doing it because it's good practice to resolve the debate about whether entry satisfies the current court interpretation of grounds to enter before actually entering.

    You're right that bursting into a property and saving the life of a tenant from a gas leak is unlikely to result in a criminal conviction,
    but to be defending your actions, you're in court anyway
    (and arguing before an unreliable judge about whether you ought to have "reasonably" considered that the tenant might be, as they turned out to be, a gas fitter who'd fixed the problem.)

    Sound advice is what people are hoping to find here.

    Leave a comment:


  • leaseholdanswers
    replied
    Originally posted by jpkeates View Post
    While I don't agree 100% with the reasoning - Exclusive possession is why a landlord can't enter, not quiet enjoyment,
    that is excellent practical advice which is what most people seem to need.

    The first sentence should probably be "Short Answer - If you are a landlord and your tenant refuses you access to your property, you cannot enter without a court order."
    Which is wrong.

    its sound advice but what it should say is the correct position that if you do enter there is risk of your committing a criminal offence however under the 1977 Act it is if only you have committed one of the grounds, and as explained above a forced entry after refusal because the gas is leaking would not result in a criminal conviction ie you cannot be said to be interfering with the enjoyment and comfort of their home, nor intimidating then or harassing them by preventing them from being blown up.

    Even if you wish that with some tenants that might be a good thing....

    Leave a comment:


  • leaseholdanswers
    replied
    Originally posted by theartfullodger View Post
    It's probably been said before (but I can't be a***d to search..) but here is OFT's views....


    Think this subject is one on which the competing "champions" will never agree...

    Ho hum, here's to good old British free speech eh?
    But it is the ramblings of a defunct organisation safely ignored.

    Leave a comment:


  • jjlandlord
    replied
    I think it is established that a right of entry that is limited enough does not go against exclusive possession.
    Moreover, if the landlord has a right of entry he cannot be trespassing when using it.

    I have no idea where that alleged "right to refuse entry" comes from when there is a covenant to allow entry...

    Lastly, there is no requirement to give notice in an emergency...

    Leave a comment:


  • jpkeates
    replied
    While I don't agree 100% with the reasoning - Exclusive possession is why a landlord can't enter, not quiet enjoyment,
    that is excellent practical advice which is what most people seem to need.

    The first sentence should probably be "Short Answer - If you are a landlord and your tenant refuses you access to your property, you cannot enter without a court order."

    Leave a comment:


  • theartfullodger
    replied
    It's probably been said before (but I can't be a***d to search..) but here is OFT's views....
    From OFT356 Pages 18 & 19..

    Rights of entry to the property

    3.32 We would object to a provision giving the landlord an excessive right to enter the rented property. Under any kind of lease or tenancy, a landlord is required by common law to allow his tenants 'exclusive possession' and 'quiet enjoyment' of the premises during the tenancy. In other words, tenants must be free from unwarranted intrusion by anyone, including the landlord. Landlords are unfairly disregarding that basic obligation if they reserve a right to enter the property without giving reasonable notice or getting the tenant's consent, except for good reason.

    3.33 The same principles apply to terms giving excessive rights to the landlord to demand access for prospective new tenants or purchasers to view the premises.
    Think this subject is one on which the competing "champions" will never agree...

    Ho hum, here's to good old British free speech eh?

    Leave a comment:


  • leaseholdanswers
    replied
    Draft Sticky Post NO 1 Landlord’s Rights to Access and Rights To Refuse

    How about this as a draft as post No 1 -comments and alterations please, and the rest of the thread be cast loose as a thread to be linked to for further reading or discussion as members wish.

    Be nice her indoors, my infinitely superior third, what wrote it

    Draft Sticky Post NO 1 Landlord’s Rights to Access and Rights To Refuse

    In the case of a house or flat rented exclusively to you, there are competing rights which can only ultimately be resolved by
    1 Agreement
    2 County Court Order

    taking into consideration the law, the documentation and the reasons to enter and the reasons to refuse.

    Most would advise that both L & T take a common sense and practical view of such disputes and be respectful of each others interests as, all things being equal, it is ultimately for your mutual benefit.
    e.g. allowing access for viewings at the end of the tenancy leads to a cooperative landlord and a good reference, and restricting these to certain times and adequate notice ensures a cooperative tenant
    e.g. allowing periodic inspections, with adequate notice, identifies potential problems and may flag up issues early on and not at the rush and panic of moving and check out
    e.g. avoiding being overly intrusive, visiting, arranging repairs or accessing in the tenant’s absence, without notice, which can lead to deterioration in the relationship and an outright refusal to allow access without a court order, even claims of harassment

    1 Contractual Right To Enter: Most tenancies will have a clause allowing emergency access and access on notice, in some cases, for specific purposes only.
    -Landlords should give notice at all times, even in emergencies advising the Tenant what is happening. Emergencies have to be genuine and normally repair or disaster related, not an emergency viewing by a future new occupant insisting on a deal breaking measure up of the kitchen!
    -Tenants should provide up to date contact details to ensure that letters are not left on the mat, email addresses are checked regularly esp work addresses or phones where you might be away and out of contact, at which time you should arrange alternatives

    2 Statutory Right To Enter To Inspect and Repair: The Landlord and Tenant Act 1985 grants the Landlord the right to enter to inspect condition and repair on 24 hours notice and, by implication, repair


    NB both these rights are subject to implied reasonableness, as we will see below, there has to be a valid purpose, and the timescale and other actions reasonable and proportionate, as to fail to do so, can lead to civil and criminal remedies for the tenant

    3 Quiet Enjoyment: The lease or tenancy with exclusive occupation is predicated on you, having paid your rent and fulfilled other obligations, that the landlord leaves you alone to enjoy the property.

    It is however subject to 1 and 2, and therefore while the right to quiet enjoyment does not mean “never darken my door”, where the disruptions are such that they are so intrusive or gratuitous, a breach may occur.
    That breach is a matter of the facts and circumstances in each case e.g.
    -necessary repairs or inspections are justifiable but they are so poorly planned and executed, often without notice or chaotic, to be therefore disruptive
    -helicopter landlords who are always “popping in”

    4 Harassment: This falls under the statutory protections of the 1977 Act where a landlord may be convicted of a criminal offence if they interfere with the “peace and comfort” of the home, “withdraws or withholds services” on a persistent basis, or their behaviour or actions is such that you feel unable to use all or part of the home, and/or fearful of exercising your rights and remedies

    NB these are all highly subjective as e.g.
    -peace and comfort might be disrupted by a new central heating system, but as long as it is carefully planned, well executed and disruption is minimised, then it is unlikely to be 3 or 4
    -while viewings are permitted in the last month, an entire weekend taken with random, short notice or block viewings would render the home uninhabitable
    -threats of providing a damning reference, a nitpicking check out report, or delaying a deposit
    might well, in both cases, be an offence

    5 Right To Refuse Entry: There is accordingly a right to refuse entry and if the landlord then enters, then there is likely a criminal offence. In these and civil proceedings, the Landlord may submit a defence that, say,
    -the gas cooker was unsafe and you the home and neighbours were at risk, or
    a leak under the bath was destroying the flat below
    This would likely be accepted, while forcing entry or accessing without notice or permission to do a viewing or fit a carpet, would not.

    6 Contractual Rights: Tenants may be tempted to change a lock and may be in breach of the tenancy which prevents alterations and, in some cases, specifically states not to change locks( or not to do so without providing a key). While it is a breach, a landlord cannot force entry and change them under 5 above without a court order.

    In turn a tenant has to think carefully about doing so as they may find themselves with costs and even a possession order or section 21, if they cannot show that they had good reason to do so, as above, where 5 4 & 3 might apply or where the rights in 2 and 1 were abused.

    Those seeking a simple yes or no can only expect one in a simple yes or no situation-the law has to be drafted to deal with the simple, complicated and ridiculous.

    Leave a comment:


  • Hippogriff
    replied
    Originally posted by Moderator2 View Post
    I can see the value of it as a sticky, but it has become a monster that needs to be cut down to a practical size.
    This is what I agree with.

    Leave a comment:


  • Moderator2
    replied
    The start date for this thread is March 2010, in the year that followed over 25 similar threads were merged into the original thread; it was and still is a recurring subject. Many posts in those threads were deleted for reasons I cannot be sure of. I don’t merge threads in that way (by subject matter) as I don’t believe that driving the forums towards a couple of dozen mega-threads is helpful, and I’m not sure that the length of this thread is helpful either.

    I could split the thread and let the comments after the first few posts sink, however many of those comments are valid questions with replies that help to create some sort of consensus, but it’s too long a read for people wanting quick answers and there are of course contradictory viewpoints in there. Perhaps I could add a post at the end of the remaining sticky which points to the continued discussion, and lock the sticky (and I would lock it otherwise we will have a second phase of growing comments).

    It is not my opinion that ‘stickies’ should be seen as an accepted authoritative view, but I can understand how some people might read them that way, this thread does however have a clause in the very first sentence that could be expanded upon if considered necessary.

    I could ‘unstick’ the thread, but it is a frequently recurring subject which is the reason for making it a sticky in the first place, and it is often linked to or referred to in replies elsewhere. I can see the value of it as a sticky, but it has become a monster that needs to be cut down to a practical size.

    Leave a comment:


  • Hippogriff
    replied
    As a Sticky for a common question that some ad hoc visitors to this site might want to view, without starting a new thread, this thread has gone terribly wrong.

    Even I don't have the heart to read it all and I've been around here a while.

    P.S. - look at the other Stickies.

    Leave a comment:


  • jpkeates
    replied
    Fair point.

    On the other hand, exclusive possession is an inalienable feature of a lease, and, while it can also be the subject of contractual clauses (or even implied covenants) and usually is, it cannot be overcome by them.

    The practical issue remains - would you (personally) enter one of your properties if you had given correct notice to the tenant for something your lease permitted and the tenant had said no?

    What should the default advice from this forum be to any accidental or less experienced landlord if they want to go into their property?

    Leave a comment:

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