L's right of access for inspection or viewing?

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    Thanks all. Any advice on the injunction process itself, or do other LLs in similar situations not tend to go there? Alternative is to rely on the S.21 and S.8, but that could take months, I understand.

    Regards

    Comment


      In your shoes I'd go for injunction (to protect myself against suggestions of not being willing to get safety cert & do repairs etc..)

      as well as actively pursuing both S21 & S8 (which if they ever get to court will have the lack of gas safety cert raised by T or I'm a banana...)
      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 theartfullodger View Post
        In your shoes I'd go for injunction (to protect myself against suggestions of not being willing to get safety cert & do repairs etc..
        The Regs provide that a landlord is not guilty of any contravention if he can "show that he took all reasonable steps to prevent that contravention".

        Comment


          Originally posted by sedgewick View Post
          Any advice on the injunction process itself, or do other LLs in similar situations not tend to go there? Alternative is to rely on the S.21 and S.8, but that could take months, I understand.
          You don't need an injunction. The official advice from the Health & Safety Executive (who enforce Gas Safety regs) is that LL must make at least three attempts to gain access for the check. You cover yourself by making the requests for access in writing, keeping copy letters, and obtaining proof of posting in the form of a free certificate of posting.

          http://www.hse.gov.uk/gas/domestic/faqlandlord.htm


          How far do I need to go if the tenant prevents access for a gas safety check?
          A landlord has to show that they took all reasonable steps to comply with the law. HSE recommends the following best practice in these circumstances and strongly advises that a record be kept of all correspondence with the tenants:
          • leave the tenant a notice stating that an attempt was made to complete the gas safety check and provide your contact details;
          • write to the tenant explaining that a safety check is a legal requirement and that it is for the tenants own safety. Give the tenant the opportunity to arrange their own appointment;
          • HSE inspectors will look for at least three attempts to complete the gas safety check, including the above suggestions; however the approach will need to be appropriate to each circumstance. It would ultimately be for a court to decide if the action taken was reasonable depending upon the individual circumstances.
          • It is a good idea to include arrangements for access in the tenancy agreement.

          Comment


            Landlord Access

            Although no stranger to Commercial Lettings I am about to rent out a house and I notice that in one of the forums a landlord who wants to visit his property accompanied by an electrician to effect a repair is being denied access by the tenant.

            I want to know if domestic letting laws have changed as in the late 70's I rented a house and I particularly remember that in the lease it mentioned that the landlord required access for "decorating and improvement" purposes and I was not allowed to change the door lock. And to that effect I noticed that about once a month when I returned from work the landlord had been into the house and painted a door, or a wall, obviously entirely without notice.

            So my question is, can I do this and incorporate this provision in the current laws which govern the drawing up of a lease for private accommodation.

            Comment


              It doesn't matter what you put in your AST - the tenant is still entitled to refuse you entry (emergencies excepted). BUT if it's concerning an essential repair then you have an implied right of entry and if T refuses then you can hold them responsible for the cost of subsequent damage (easier said than done I know).

              Make sure you don't offer an initial fixed term of more than 6 months so you can monitor your tenant to see if they behave in a "tenant-like" manner. Don't forget to carry out proper and thorough references beforehand.
              The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

              Comment


                Just to throw something else into the debate: I spoke with the Council's Housing Department (Private sector team). Their advice was to give notice in writing (at least 24 hours, but as much as poss) that I would be entering property with gas engineer in order to comply with the regs. I will be his witness and he will be mine. Undertake the check, and leave a copy of the certificate. Their view is that I would be well within my rights to do this. Person I spoke with double checked with a colleague.

                The AST contract states that the tenant agrees "To permit the Landlord or Landlord's Agents upon a minumum of 48 hours notice (except in an emergency) and at all reasonable times to enter upon the Premises with or without workmen or equipment and to view the state and condition thereof and if necessary, to carry out any repairs, alterations or other works."

                The Agent had these terms drawn up by solicitor, so I would have hoped they would carry some weight? Is this not explicit permission to go in?

                Is there any caselaw that shows a landlord has been prosecuted for following a reasonable strategy such as this?

                Many thanks

                Comment


                  Originally posted by sedgewick View Post
                  The Agent had these terms drawn up by solicitor, so I would have hoped they would carry some weight? Is this not explicit permission to go in?
                  Not 'permission' as such. The LL already has an implied right of access in law to carry out repairs. The clause in the tenancy agreement makes this explicit. However, the T has competing rights (exclusive possession, quiet enjoyment). If you followed the council's advice, and entered without T's express consent, you could be breaching T's rights. It would certainly be highly inadvisable to enter against the express wishes of the T (e.g. if he's at home when you arrive, and tells you to leave).

                  There's a previous thread on this subject - link here.

                  Is there any caselaw that shows a landlord has been prosecuted for following a reasonable strategy such as this?
                  To commit the offence of unlawful harassment, the LL must be acting with the intent of causing the occupier to give up occupation; I think it's extremely unlikely you'd be prosecuted. However, if T is entitled to legal aid, you could find yourself on the receiving end of a civil claim for damages for breach of quiet enjoyment.

                  Comment


                    In addition, if LL disregards T's refusal to grant access, T still has the possibility to change all the locks in which case discussions on giving notice will be moot.

                    Comment


                      Originally posted by jjlandlord View Post
                      In addition, if LL disregards T's refusal to grant access, T still has the possibility to change all the locks in which case discussions on giving notice will be moot.
                      And also what happens if the T is in the property and physically prevents entry: are L and gasman going to shove him out of the way? I think not.

                      I think provided L has completely covered his butt by writing umpteen letters to T, with proper documentation and proofs etc, I can't see how a court can ever prosecute for failure to carry out the gas check.

                      On the other hand, if entry is gained without express permission, a vexatious T could easily bring a legal aid claim against L which is not going to be a happy experience whatever the outcome.

                      Consider also that it's pretty unlikely that T is going to complain to the EHO about having no gas certificate if he's received L's umpteen letters! So really the only risk to L of prosecution for failure to carry out the check is if T is injured by CO poisoning. And without wishing to belittle that - realistically, what are the odds of that happening?

                      Comment


                        L. demanding to enter property

                        Our house is being sold and the agent is demanding we allow people in for viewings. The agent is under the impression that a letter giving 24 hours notice is all that’s required, and they can enter our rooms whether we are there or not, regardless of the fact that our tenancy agreements do not mention anything about viewings or permission to enter or take photo's of our rooms.

                        Could someone please point out where it actually states that if you are a regulated or assured tenant, a L can only enter a T's rooms with the T's permission.
                        To know how rich you are, count the things you have which money can't buy.

                        Comment


                          Ignore the precise tenancy status. L and L's Agent cannot force you to allow entry.
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment


                            You have exclusive use of the area defined on your tenancy agreement - so if it is a room, the landlord / agent / prospective purchaser may enter the communal areas, but not your room. If you rent the whole property on a joint tenancy, then you have exclusive possession of the WHOLE property. However, if your tenancy has any clauses regarding viewings then note this comment by Westminster from a different thread
                            Originally posted by westminster View Post
                            if the contract says that you must permit viewings as from 4th January 2011, then technically you will be in breach of contract, so technically the LL might claim against you for any loss suffered as a result of the breach. The best approach would be to allow a small window for viewings, even as little as one hour per week would be enough to fulfill your obligations.
                            (my underline)

                            Comment


                              Thanks. As regards outcome, that's still ongoing. I found a solicitor in the week who could help with injunctions forms (c.£200). However, I decided to see what the outcome of a visit this weekend might be - when I went to serve S.8.

                              As usual, no answer to doorbell. I visited neighbours who told me tenant had not been seen for a couple of weeks - and tenant had been talking to them about potentially moving back up north. Furniture etc still there, however.

                              The agent who originally installed the tenant (without my agreement, incidently) had passed over to me documents including references. One of them was a local resident, whom I visited. Turned out to be tenant's cousin (agent really checked tenant out, didn't they... ). Cousin claimed not to know much about tenant's intentions, but did have a key to the property. Am waiting to see if they agree to letting gas man in this week. Not holding my breath!

                              Two weeks time and I can start court action. In the meantime, I'm applying to Council to have LHA paid directly to me (tried this last week but they said would have to apply after 29th).

                              I do feel pretty well covered after all this though, so may not pursue injunction after all.

                              Comment


                                Originally posted by jeffrey View Post
                                Ignore the precise tenancy status. L and L's Agent cannot force you to allow entry.
                                Is at least 24 hours notice required for L. to enter the communal parts, or can he enter the communal parts without any notice?
                                To know how rich you are, count the things you have which money can't buy.

                                Comment

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