L's right of access for inspection or viewing?

[Lawcruncher]

What follows is my analysis of the position. It should not be treated as gospel.

Part 1

It is often asserted that a landlord, even if the tenant has agreed to it in the tenancy agreement or lease, may not enter premises without the consent of the tenant. Whilst on the whole it is wise for a landlord (and especially a landlord of residential premises) to proceed on the basis that that is the law, I do not think it is in fact the law.

There is no rule of law that says that a landlord may not exercise any right of entry he reserves. A tenant must of course not be harassed. Apart from that he has a right to quiet enjoyment, but that right needs to be read as if it were qualified by any right reserved that allows the landlord to enter, so long as he behaves reasonably. It is not easy to say what is reasonable. Since the exercise of the right is not dependent upon a court saying it can be exercised there must be circumstances, apart from a case of genuine emergency, where it is not unreasonable for a landlord to enter without consent and even where consent is refused, but it is a brave landlord who thinks he knows what the circumstances are.

If you want a more detailed consideration of the question, read on.

To put the question is a wider context, no interest in land, whether freehold or leasehold, is ever absolute in the sense that the whole world can be excluded or that the law permits you to do what you like on your own land. First and obviously you cannot commit a crime. The law allows aircraft to invade your airspace. The ownership of mines and minerals such as coal, gas and oil is determined by statute and such as gold and silver by the common law. You may not do anything on your land which interferes with any natural rights of drainage or support enjoyed by your neighbour. The law does not allow you to commit a legal nuisance on your land. Certain activities or changes may require the permission of a competent authority. There are any number of statutory rights of entry.

When it comes to land law, which is private and not public law, rights exercisable over land may be agreed (and in some cases implied) and a landowner may agree to restrict the use of his land in some way. In particular, rights of access (not to be confused with rights of way) may be granted or reserved.

If the owner of a property wishes to go onto his neighbour's land to carry out repairs there are two possibilities:

A. He has an easement that allows him to go onto the land. The easement can only be exercised for the purposes stated and according to the terms of the grant and must in any event be exercised reasonably. If the neighbour declines to allow or prevents access an application may be made to the court to enforce the right.

B. He does not have an easement and the neighbour refuses consent. In that case, if certain conditions are fulfilled, the court may, if asked, make an order allowing access under the Access to Neighbouring Land Act 1992. Access is then allowed for the purposes specified in and subject to any conditions imposed by the order. Once the works permitted have been carried out and all conditions complied with the order effectively becomes a dead letter and any future access requires a new order.

The difference between A and B is that in A the right of access exists without the intervention of the court, even if it may prove necessary to ask the court to enforce the right, but that in B the right only exists by virtue of the court order. This distinction should be kept in mind.

When it comes to tenancies the starting point is this: a tenancy is an arrangement in which the landlord gives up his right to exclusive possession (that is possession in the sense of occupation) and hands it to the tenant in exchange for (usually) money. Ignoring the intervention of statutes such as the Protection From Eviction Act 1977, the tenant's right to exclusive possession is strengthened by two things:

1.The landlord's covenant for quiet enjoyment, which if not express is implied. (Theoretically, I suppose it may be expressly excluded, but I have never heard of this being done.) This covenant is essentially a promise by the landlord not to interfere with the tenant's enjoyment of the property. It is a right that arises as a matter of contract; a breach by a landlord of his covenant for quiet enjoyment is not a tort. The distinction is important because the remedies are different. Whilst in an action for both breach of contract and in tort the court may make an order restraining the defendant from repeating the action complained of, the measure or quantum of damages is different. Simplifying and without going into the matter in detail (something I am in any event not competent to do since I was never a litigator) where there is a breach of contract the measure of damages is the financial loss suffered. It is important to bear this in mind.
2.The rule that a landlord may not derogate from his grant, that is that he cannot give something with one hand and take it away with another.

There is some overlap between a breach of a covenant for quiet enjoyment and derogation from grant, and some actions may amount to both. However, no discussion is required for the purpose of this post and any further reference to a breach of a covenant for quiet enjoyment should be taken to include a reference to a derogation from grant.

In a tenancy agreement or lease a landlord may do one of two things, or may do both:

(a) impose an obligation on the tenant to allow access for specified purposes

(b) reserve a right of entry for specified purposes.

The effect is the same, which is that the landlord has what we may call “the landlord's right of access” - or at least that is what I hope to show.

There is no statute or any common law rule that says that the landlord's right of access is void or unenforceable. Indeed, in certain cases the law implies a landlord's right of access into the terms of a tenancy. It would be nonsense for statute to imply a right that was void or unenforceable. It cannot be the case that the right only exists where the court says it exists (like a right granted by the court under the Access to Neighbouring Land Act 1992) because there is no statute that allows the court to create such a right. Further, it cannot be the case that you can ask the court to enforce a right that does not exist. I think therefore that we can say that the landlord's right of access exists by reason of it having been agreed, whether expressly or impliedly, and that it exists from the moment that it is agreed.

[Jgalley28]

Our agents inspected yesterday and weren't happy. The landlord has now issued an s21 (we kind of felt this was coming at the end of the tenancy in two months) so not disputing it. However yesterdays inspection we were informed if via email but the landlord couldn't attend so the agent rearranged via email for 18th. As we were under the impression that yesterday wasnt happening is it worth a complaint? Technically they breached the 24hr rules as far as I am concerned. Would we gain anything as the new date agreed would have not left them enough time to serve s21 before new tenancy agreement

[jpkeates]

Could I have insisted on the inspection. The Agent just accepted the tenants excuses.

On a practical level, no agent in their right mind is going to enter a property over the refusal of a tenant to let them in.

What someone could do is tactically not get the tenant's cancellation and knock on the door.
The tenant might be there and refuse entry, but if someone completely different answered, there might be something that could be done.

But I wouldn't expect an agent to bend the rules like that.

And was there any issue as a result of the subletting?

[theartfullodger]

Aye, insist, get court order, takes about as long as an s21 eviction.

[CWattana]

I actually live overseas

I have very recently had problems with my tenant, in the end the house was left in a complete mess. Several times she agreed to let the agent or my son visit to inspect. Each time she cancelled at very short notice. Excuses such as child has sickness bug, child in hospital, have to go to child's school.

After exiting I found out that she had others living there. Could I have insisted on the inspection. The Agent just accepted the tenants excuses.

[Handson]

I take it you mean "no surrender document was signed & agreed by landlord & tenant". It may be an implied surrender - see e.g.
https://www.landlordlawblog.co.uk/20...der-explained/

Can be tricky: It would depend on other things in addition to your very brief description. Are you asking about an actual real situation that has happened or just wondering?

Yes that's a real situation. About to apply to court for possession and T has SMS that they moved to another city. No forwarding address. Deal with some other guy for keys and payment. Like they washed their hands of it. Which isn't consistent with someone who wants to live there.

I don't even know if they have move furniture out. T said they didn't have money to fix car.

[theartfullodger]

I take it you mean "no surrender document was signed & agreed by landlord & tenant". It may be an implied surrender - see e.g.
https://www.landlordlawblog.co.uk/20...der-explained/

Can be tricky: It would depend on other things in addition to your very brief description. Are you asking about an actual real situation that has happened or just wondering?

[Handson]

What if tenancy was not surrendered, tenant abandoned it without informing the landlord. Does going in conflict with their right to enjoyment if they don't live there or have moved to other cities?

[Lawcruncher]

The starting point is that a landlord is only entitled to access for any purpose if (a) the tenant gives his consent or (b) the terms of the tenancy allow access for that purpose. As to (a) you have no problem if the tenant consents. As to (b) "the terms of the tenancy" are not quite the same as "the terms set out in the tenancy agreement" as terms may be implied, whether by statute or the common law.

A term allowing access must be reasonable and not such that its exercise would be a breach of the landlord's covenant for quiet enjoyment or a derogation from grant. In this respect a tenant's right to excusive possession is not absolute. Accordingly, that right does not come into conflict with any right of the landlord to access. The way to look at it is that what the landlord grants is a right of exclusive possession subject to reasonable rights of access.

The right must not only be reasonable but also reasonably exercised. So, while section 11 of the Landlord and Tenant Act 1985 implies "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" it is implicit that the right must be exercised reasonably, even though on the face of it the right could be exercised daily.

If the terms allow access for a specific purpose then no consent needs to be sought from the tenant to access for that purpose. All that is required is to comply with any conditions attached to the right. It is though important to realise that it is one thing to have a right and another to exercise it if doing so risks injury to persons, damage to property or a breach of the peace.

[jpkeates]

It depends on what your tenancy agreement says.

Landlords have a general right in legislation to inspect the condition of the property having given 24 hours notice (but not for any other reason). So if the correct notice is given, no further consent is required (although, as noted, it would be a good idea).

If the tenant declines the request for access, you have two conflicting sets of rights, the landlords right of access and the tenant's right to exclude anyone they want from the property. Neither right has a greater priority, so a court's decision is needed to overcome one right or the other.

If your tenancy agreements give other access, that's up to the strength of the contract and the validity/fairness of the terms. Although, unless the tenant refused, any remedy the tenant sought would be post event and have to be based on the loss incurred by the tenant.

The issue would be the exact wording of the terms allowing access.

[Jmanville]

A question that so far I have not really seen answered. Consensus seems to be landlords have right to access if 24 hours notice is given to inspect and/or review repairs AND permission is given. It could be argued the AST when signed gives permission for this but it would be advised to get further permission. The question is what if you give 24 hrs or more notice, you get no response (so that means your permission has not been denied or given) if you go there and no one is home so they have broken the appointment can you go in using the master keys under the AST consent? Please note in this instance the tenant never replies to give or deny permission to any written communication or text messages and does not have email, but previously has been there for the appointment and let me in. But also on another occasion has been going at the time of the appointment and refused to stay to speak to me, or give me another convenient time.

[Handson]

Lawcruncher,

That was the agreement on LL Zone some years back. It's sold as plain english.

I've visited the property over the weekend in the past for signing the current renewal. At the moment the tenancy is periodic and so I have gone s21 route. It's headached otherwise with a empty property.

[Lawcruncher]

"The tenant agrees to let the landlord, or tradesperson authorized by the landlord, to enter the property to service essential amenities, even if after reasonable attempts the landlord has been unable to get the tenants' consent."

Rather amateurish drafting. The red undermines the blue. It makes it look as is the landlord has to ask for consent. With just the blue, consent is given and further consent is not needed. We can guess what was intended, but the wording fails to achieve it clearly.

Even if the clause was clear, you have to ask two questions. The first is: "Do I have the right to enter even if the tenant tells me I cannot?" The answer to that is that you do. A more important and practical question is: "Is it wise to enter?" The answer to that is: "Probably not."

[Handson]

In my AST it says clearly:
"

1. The tenant agrees to let the landlord, or tradesperson authorized by the landlord, to enter the property to service essential amenities, even if after reasonable attempts the landlord has been unable to get the tenants' consent."

I have written letters to them giving them 2 weeks notice to get in touch to arrange a suitable time for gas safety, 2 weeks have passed, then a reminder letter referring to first letter for gas safety inspection and to get in touch. If they still haven't replied can I send gas safety engineer in if my keys work. I can wait outside if need be.

[Lawcruncher]

Whether you are trespassing depends on whether the terms of the tenancy permit you to enter for the purpose for which you enter. If they do not then you are trespassing. You cannot conjure up consent by giving notice to enter and assuming the tenant consents if he does not respond.

In the case of entry to carry out a gas check there are two arguments, if the right is not expressly reserved. The first is that it is implied under the common law because the landlord is under an obligation to carry out the check - see Mint v Good. The second is to rely on section 11(6) of the Landlord and Tenant Act 1985 which provides:

"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."

I think a gas check has to come within "viewing their condition and state of repair".