L's right of access for inspection or viewing?

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    Originally posted by Lawcruncher View Post
    If a landlord goes to court it is not to be granted the right to enter but to enforce a right he has. If he has the right he must be able to enforce it without the court's permission. If he had no right there would be nothing for the court to enforce.
    That's an interesting legal view.

    I agree with the first and third sentences, but not the second.
    I think that there are some rights that are only enforceable with the approval of a court - are you suggesting that this is not one of those,
    or that all rights have this characteristic?
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      Originally posted by monkeysee View Post
      Re reasonable times I venture to suggest that taking a leaf out of the bailiff book might be appropriate, similarly with deciding what is and is not forced entry, there is plenty of case law in that arena.

      Bailiffs if I recall correctly nominally shouldn't attend on Sundays or certain other holidays (Christmas etc), and otherwise outside the hours of sunset and sunrise and/or 6am to 9pm, depending on the specifics of whatever they are enforcing.
      .....
      It is a well established principle that there are times when it is unacceptable to evict people. In Scotland the Bankruptcy and Diligence (Scotland) Act 2007 states (English readers please bear with Scots legal terms...)
      217 When removing not competent

      (1) It is not competent to execute a decree for removing from heritable property on—
      (a) a Sunday;
      (b) a day which is a public holiday in the area in which the decree is to be executed; or
      (c) such other day as may be prescribed by Act of Sederunt.

      (2) The execution of such a decree must not—
      (a) begin before 8 a.m. or after 8 p.m.; or
      (b) be continued after 8 p.m.,

      unless the judicial officer has obtained prior authority from the sheriff for the district in which the subjects or premises are situated for such commencement or continuation.
      & in England I am not aware of any law (anyone else??) but there are the standards from MoJ
      http://www.justice.gov.uk/downloads/...ent-agents.pdf
      including
      Times and Hours
       Enforcement should not be undertaken on Sundays, on Good
      Friday or on Christmas Day, unless the court specifically orders
      otherwise or in situations where legislation permits it.
       It is recommended that enforcement should only be carried out
      between the hours of 6.00am and 9.00pm or at any time during
      trading hours, existing legislation must be observed.
       Enforcement agents should be respectful of the religion and
      culture of others at all times. They should be aware of the dates
      for religious festivals and carefully consider the appropriateness of
      undertaking enforcement on any day of religious or cultural
      observance or during any major religious or cultural festival.
      - but I don't know if that is legally enforceable (anyone??)

      Of course in France there is the Winter Eviction amnesty (can't be evicted unless you've somewhere else suitable to go). "uprising of kindness" (insurrection de la bonté).. which went into the French legal codes in 1956 (Art.613, Code de la construction et de l'habitation) no eviction between Nov 1 & March 15th.

      In Scotland there are proposals for a similar winter amnesty. This was covered at a repossession conference last December.
      http://www.rlclaw.co.uk/news/2012/12...on-conference/
      &
      http://blog.yourdebtexpert.com/2012/...on-conference/

      What would member's views be of a Winter eviction amnesty??
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        Originally posted by monkeysee View Post
        Re reasonable times I venture to suggest that taking a leaf out of the bailiff book might be appropriate, similarly with deciding what is and is not forced entry, there is plenty of case law in that arena.

        Bailiffs if I recall correctly nominally shouldn't attend on Sundays or certain other holidays (Christmas etc), and otherwise outside the hours of sunset and sunrise and/or 6am to 9pm, depending on the specifics of whatever they are enforcing.
        .....
        It is a well established principle that there are times when it is unacceptable to evict people. In Scotland the Bankruptcy and Diligence (Scotland) Act 2007 S217 states (English readers please bear with Scots legal terms...)
        217 When removing not competent

        (1) It is not competent to execute a decree for removing from heritable property on—
        (a) a Sunday;
        (b) a day which is a public holiday in the area in which the decree is to be executed; or
        (c) such other day as may be prescribed by Act of Sederunt.

        (2) The execution of such a decree must not—
        (a) begin before 8 a.m. or after 8 p.m.; or
        (b) be continued after 8 p.m.,

        unless the judicial officer has obtained prior authority from the sheriff for the district in which the subjects or premises are situated for such commencement or continuation.
        & in England I am not aware of any law (anyone else??) but there are the standards from MoJ
        http://www.justice.gov.uk/downloads/...ent-agents.pdf
        including
        Times and Hours
         Enforcement should not be undertaken on Sundays, on Good
        Friday or on Christmas Day, unless the court specifically orders
        otherwise or in situations where legislation permits it.
         It is recommended that enforcement should only be carried out
        between the hours of 6.00am and 9.00pm or at any time during
        trading hours, existing legislation must be observed.
         Enforcement agents should be respectful of the religion and
        culture of others at all times. They should be aware of the dates
        for religious festivals and carefully consider the appropriateness of
        undertaking enforcement on any day of religious or cultural
        observance or during any major religious or cultural festival.
        - but I don't know if that is legally enforceable (anyone??)

        Of course in France there is the Winter Eviction amnesty (can't be evicted unless you've somewhere else suitable to go) - the "uprising of kindness" (insurrection de la bonté) (mentioned by Camilla recently) which went into the French legal codes in 1956 (Art.613, Code de la construction et de l'habitation) no eviction between Nov 1 & March 15th. Re. Camilla, Charles rents Highgrove from Duchy of Cornwall for some £300k pa. Of course Charlie gets the surplus from the Duchy. So for every £1 he pays in rent he gets £1 back.. so effectively rent free.. (don't get me started...)

        In Scotland there are proposals for a similar winter amnesty. This was covered at a repossession conference last December.
        http://www.rlclaw.co.uk/news/2012/12...on-conference/
        &
        http://blog.yourdebtexpert.com/2012/...on-conference/
        &
        http://www.rlclaw.co.uk/news/2012/07...-shame-day-ag/

        What would member's views be of a Winter eviction amnesty??
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          If he has the right he must be able to enforce it without the court's permission.
          That would have been better phrased as:

          If he has the right he must be able to exercise it without the court's permission.

          There are indeed some rights which are only exercisable with the approval of the court. A notable one is the right to forfeit a residential tenancy whilst the tenant is in occupation. There are also rights which can be applied for but which do not exist until some procedure has been followed which grants them. In this category are rights obtainable under the Party Wall etc. Act 1996 and the Access to Neighbouring Land Act 1992. There are no specific statutory controls on the exercise of a right of entry; the only constraints imposed are those applicable generally to all landlord actions, i.e. not to act in a manner which amounts to a breach of the covenant for quiet enjoyment or is a derogation from grant or contravenes the Protection from Eviction Act 1977 or is otherwise criminal. Equally there is no statute which sets out a procedure which must be followed to obtain a right of entry.

          The exercise of a right of entry can be compared in some respects (though by no means all) to the exercise of a right of way. If you have a right of way over your neighbour's land you do not need to ask his permission every time you want to exercise it. If he tells you not to use it you can still use it. If he hurls abuse at you while you are using it you can still use it. If he obstructs the way by placing on it some easily removable object you can clear the way by setting the object to one side. However, if the obstruction is of a more permanent nature or the neighbour bars your way it is advisable to seek a legal remedy. Where there is a possibility of damage or injury or a breach of the peace the law does not favour self-help.

          Rights of entry are a matter of contract, even where a right is implied. Whilst one of the requirements of a tenancy is that it involves exclusive possession, the law does not require it to be absolute. It would, for example, be an extreme oddity if on the sale of part of land you could reserve a right of way over the part you sell, but could not do so over any part you let. The parties are free to agree what they like so long as the landlord does not unreasonably interfere with the tenant's enjoyment of the property; it comes down to a question of degree.

          In summary, a landlord who wishes to enter for a reasonable purpose allowed by the contract and has complied with whatever it is the contract requires him to do may enter a property at the times allowed by the contract so long as he does not force entry or the tenant being on the premises does not object. It is though important to remember that whilst a tenant may effectively prevent entry by changing the locks or telling the landlord to go away, he has no right to do so where the entry would be lawful.

          Comment


            "What would member's views be of a Winter eviction amnesty?? "

            Winter eviction amnesty is a great idea from a tenants perspective, especially up north.... not so great from a LL's perspective though unless the govt/council are going to pay the rent for the months of the amnesty (in cases of arrears).

            An amnesty against S21 evictions seems a no brainer where the alternative is homelessness in the middle of winter.

            There'd be no need for said amnesty if the social housing sector weren't quite such a mess I guess.



            "I am not aware of any law (anyone else??) but there are the standards from MoJ"

            The big one is the Tribunals, Courts and Enforcement Act 2007 which is being brought into effect piecemeal. Part 3 commences in April and goes some way towards codifying the existing law, most of which re bailiffs is either ancient or derived from precedent, common law not statute in a nutshell.... you'll find lists of cases as long as your arm on various bailiff advice sites.
            I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

            Comment


              France has a winter amnesty, as mentioned by Artful. The only result is that some tenants consider paying the rent optional in winter.
              I believe that they also have restriction re. cutting off electricity/gas during winter (Have we got that?).

              IMHO there should be no such amnesty. The only result is that private landlords are forced to subsidise emergency housing by providing it themselves!

              Comment


                I've been pointed to this forum by others online and hope you landlords can help!

                I've posted this elsewhere and hope to get some answers to my question. Reading this thread doesn't give me a definitive answer to the question, as some suggest yes landlords can enter without consent as long as they give written notice?

                So if my landlord gives written notice of an impending inspection, do they have the right to just enter the flat without my consent?

                I've been away for the Easter Hols, from Monday of last week to just now returning to the flat.

                First thing first, I open up the door and there is an envelope on the kitchen table from the landlord, dated 16 April.

                The note states that an inspection would be made on Sunday 20 April. Who does an inspection on Easter Sunday?

                The only obvious signs that someone has been in the flat is that the fact that the note is on the kitchen counter and the lights inside have been left on!

                Correct me if I am wrong, but does a landlord have the right to enter a flat without consent?

                I've read loads on the internet but there is no general agreement on this matter.

                Should the landlord not have waited until they received my permission?

                Thoughts please, especially from you legal minds out there! Thanks in advance.

                Comment


                  What does your tenancy say about landlord's right to inspections??

                  It would appear that landlord has done nothing wrong: He appears to have given a lot more than the minimum 24hrs written notice: You appear not to have previously refused any access or visits... So he was quite within his rights to go ahead, albeit not to leave lights on, although one could argue Easter Sunday is not a "reasonable" time/date to inspect..{I would argue it's not reasonable} (see...Landlord & tenant Act 1985 S11(6)
                  http://www.legislation.gov.uk/ukpga/1985/70/section/11
                  (6)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.
                  If you wish to prevent this happening in future...
                  a) Change the locks (keep old ones to put back when you leave..): Don't damage anything in process...
                  b) Write (yes, WRITE!! keep copy) stating you refuse all visits or inspections without your prior written agreement which you are not yet granting...

                  Expect a S21 notice by return.

                  Was there anything landlord might have been suspicious about ??

                  Cheers!
                  I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                  Comment


                    There is absolutely nothing in the tenancy agreement about inspections. In fact, I have never had an inspection during the entire tenancy!

                    I don't particularly care about an S21 at this point. I'm incensed that a Landlord thinks it is okay to do an "inspection" on Easter Sunday and leaves the letter on the kitchen table, which is dated the 16 April!

                    thanks "thearftfullodger" - I will certainly be taking your advice on board and changing the locks - pronto!

                    I still contend that he should have waited until he had my consent!

                    Comment


                      Whatever the rights and wrongs legally, I think it's at best tactless and foolish for a landlord to enter the property like this without express permission of the tenant, as it's a recipe for souring relationships, as we see here.

                      Originally posted by HerilSamika View Post
                      I'm incensed that a Landlord thinks it is okay to do an "inspection" on Easter Sunday and leaves the letter on the kitchen table, which is dated the 16 April!
                      Presumably he would have posted the letter on or about the 16th, ie after you had left on hols? I suppose he could have just removed it and then you'd have been none the wiser that he'd ever been there... in other words, he's at least trying to do things by the book.

                      I really don't think the fact that it was Easter Sunday is worth getting aerated about, as regards what constitutes 'reasonable'... now, if you had been around last week to receive the letter, you could have told him 'actually, no, I'd rather not do it over the holiday weekend' (ie because it's unreasonable) that would be perfectly fine; however, since the property was empty, I don't think reasonableness comes into the equation here. You'd have been equally irritated had he inspected at 3pm last Thursday, wouldn't you?

                      Originally posted by HerilSamika View Post
                      I will certainly be taking your advice on board and changing the locks - pronto!
                      Given that this was apparently a 'first offence', might I suggest a less adversarial approach initially, which might be less likely to render you homeless? Sleep on it and calm down a bit, then contact the landlord and point out (politely) that you're not happy about him coming in without your express permission and would he please confirm that he will not do it again? I suspect you'll receive a response somewhere along the range from "Yes of course, absolutely, really sorry about that" to "It's my property and I'll come round when I bloody well want to" - and then you can take what action you deem appropriate.

                      Comment


                        Originally posted by HerilSamika View Post
                        ....

                        thanks "thearftfullodger" - I will certainly be taking your advice on board and changing the locks - pronto!

                        ....
                        Let me be clear: I was not advising you to do it, I was simply stating what you can do to stop it happening again...
                        If you wish to prevent this happening in future...
                        a) Change the locks (keep old ones to put back when you leave..): Don't damage anything in process...
                        b) Write (yes, WRITE!! keep copy) stating you refuse all visits or inspections without your prior written agreement which you are not yet granting...

                        Expect a S21 notice by return.
                        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                        Comment


                          Who does an inspection on Easter Sunday?

                          No doubt if you'd had no heating or no electricity or a water burst, you'd have expected your LL to sort it out immediately?Wouldn't you?

                          Comment


                            All of those have already happened! And the landlord did not come out! He told me to call the management company! The exact words used were "There's nothing I can do luv"

                            I've been in touch with the tenancy relations officer at the council and spoke to SHELTER - both confirmed that my landlord cannot
                            just let himself in with a key, regardless of the fact that he sent a written notice! He must wait for my acceptance or proposal of another date!

                            I have, on the advice of other landlords from various sites, changed the locks and additionally, I've written the landlord and told him that as he trespassed in the flat without my consent, I will be subtracting the amount of the locksmith's bill from next month's rent! Like it or lump it!

                            Comment


                              a) I doubt you were told that by either TRO or Shelter in the circumstances described the landlord could not let himself in: I could of course be wrong.. Did you get that in writing??

                              b) Not paying full rent simply gives landlord another legal route to evict you & should ensure no/terrible reference... (like it or lump it??)
                              I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                              Comment


                                Originally posted by HerilSamika View Post
                                I have, on the advice of other landlords from various sites, changed the locks and additionally, I've written the landlord and told him that as he trespassed in the flat without my consent, I will be subtracting the amount of the locksmith's bill from next month's rent! Like it or lump it!

                                S21 coming your way!

                                Comment

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