L's right of access for inspection or viewing?

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    Originally posted by Lawcruncher View Post
    Not sure how deleting the follow-on makes it more useful.
    When being humorous it's best to use smilies.

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      Lawcruncher must be popular: His private message inbox is full.

      Comment


        Mr Cruncher makes some excellent points, but the impression from the first few posts is a little misleading.
        They imply (or perhaps I infer) that while it is generally supposed that a landlord cannot enter a property without the express consent of a tenant, technically they do have a right to enter their property without a tenant's consent.

        Mr Cruncher's argument is an excellent and compelling piece of legal reasoning.
        The overwhelming caveat is that a landlord shouldn't rely on that technical point - because that's not how it plays out in actual life.

        So the thread is a little misleading - someone reading it would possibly take away the wrong impression unless you read it all and all the links. and given it's a sticky it looks like the forum's word on the matter.

        The recent links support the view that a) if Mr Cruncher's argument were to be effective it would have to be made in a senior court and the court would have to follow the reasoning and agree with it and b) until then, the courts are, by issuing orders to allow access without tenant consent confirming the counter interpretation, as otherwise these orders would be unnecessary and courts don't do unnecessary things.

        So I think the best advice for casual browsers should be "no, you can't 'safely' enter a property without the tenants consent without a court order" - here's how to get one.
        Then here's Mr Cruncher's reasoning that there should be a loophole.
        Then the (very useful) practical advice on getting into a property you think has been abandoned (notice and banging on the door while being videod by a witness and walking through shouting "is there anybody there, I am not a burgler!")
        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


          There is no loophole.
          The argument is that the landlord has the consent of the tenant by virtue of the lease, since it states that the parties agree that the landlord has the right to enter.

          I think it is fallacious to claim that if that was indeed the case there would be case law. Actually there may be case law, but they may require someone to actually look for them.

          By issuing an order a court confirms that the tenant has no right to refuse access, otherwise it would not issue an order.
          Refusing access may be by physical means in which case the landlord has no choice but to request a court order. Even without the access being physically blocked a landlord may want to be cautious and ask a court to confirm that he can indeed enter before doing so in order to be covered.

          Note that, as I understand it, such court order, an injunction, does not say "yes, Mr Landlord has indeed the right to enter" but rather "Mr Tenant you must allow Mr landlord to enter or be found in contempt of court".

          What is somewhat disappointing in the 'recent link' is that it just states an opinion without really backing it up with anything.
          The law says that the landlord has a right of entry, so I would think reasonable to reference an opinion to the contrary.

          Comment


            Originally posted by jjlandlord View Post
            Lawcruncher must be popular: His private message inbox is full.
            It is now empty.

            Comment


              There is a conflict between different rights and statutes (which is one of the reasons courts exist).

              The tenant has a common law right to quiet enjoyment and exclusive use of the property - which includes the right to exclude others.
              The landlord has a statutory (and possibly contractual) right of access - which would be thwarted by the common law rights of the tenant.

              This happens a lot - contractual employment conditions (such as post employment non-compete clauses vs a person's common law right to make a living)
              or contracts with agreed terms that both parties are happy with that conflict with the "public interest".

              The court order is not evidence that one set of rules "trump" another, if anything, it is evidence that a court order is necessary to determine which of the conflicting sets of "rules" should take precedence in this specific case.
              If the court order was not necessary, the courts wouldn't issue one - they could either decline altogether or issue a positive injunction to settle the issue between the parties permanently.

              The issue is further complicated by the use of search warrants by British Gas to enter to check/repair gas meters when consent isn't forthcoming - because it introduces a different mechanism to achieve broadly the same purpose.
              I am not sure why BG don't use court orders instead - because presumably they are enforcing a statutory obligation of their own over the rights of a property owner/occupier.

              While the discussion is interesting, and there are interesting points being made, the simple advice to landlords has to be don't enter a property if the tenant declines consent.
              It might be interesting to attempt to use these arguments as a defence, but, surely it's best not to be in court in the first place.
              Several people think the defence would be successful, I happen not to - hard to resolve that.

              I was simply suggesting that the thread gives the wrong impression to someone reading the first few posts.
              It reads as though the debate has been settled in favour of the landlord being able to enter, which isn't the case.
              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 jpkeates View Post
                There is a conflict between different rights and statutes (which is one of the reasons courts exist).

                The tenant has a common law right to quiet enjoyment and exclusive use of the property - which includes the right to exclude others.
                The landlord has a statutory (and possibly contractual) right of access - which would be thwarted by the common law rights of the tenant.
                The covenant of quiet enjoyment is not absolute and can be restrained by contractual clauses. As such there is no a priori conflict.

                Comment


                  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?
                  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


                    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.

                    Comment


                      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.
                      I also post as Mars_Mug when not moderating

                      Comment


                        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.

                        Comment


                          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.
                          Based on the information posted, I offer my thoughts.Any action you then take is your liability. While commending individual effort, there is no substitute for a thorough review of documents and facts by paid for professional advisers.

                          Comment


                            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?
                            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


                              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."
                              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


                                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...

                                Comment

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