access

[creswell]

Hello forum,

Just wanted to run a scenario past landlordzone. It’s concerning access by the landlord and it’s a problem I often come up against. I am an adviser and my stance has always been L must provide minimum of 24 hours notice and seek permission. Failure to do so would be a breach of T’s quiet enjoyment, trespassing and possibly harassment.

However, I read an article recently by a lawyer who stated that if the tenancy agreement had a clause that allowed the landlord entry after notice, then it could be argued that permission is not required as it implied that permission had already been given by signing the tenancy agreement.

I have a case whereby the landlord and agents appears to be doing this and not asking for permission.

The clause reads – That the Landlord or any person authorised by the Landlord may at reasonable times of the day on giving 24 hours notice (unless in the case of an emergency) enter the property for the purpose of viewing, inspecting its condition and state of repair for the purpose of repair or repainting.

Does anyone have an opinion on this or not what correct practice is? Could it be argued that this is an unfair clause, although it appears pretty standard? This seems to polarise opinions from what I have researched, and it’s one of the most wide spread reported abuses by landlords.

I have seen lawcrunchers post on access by the way.

Thanks in advance.

[monkeysee]

The OFT states that terms are potentially unfair if they allow a LL access without the tenants consent, however that is guidance, not the letter of the law.

Technically a LL may enter as long as their doing so does not require force (if the T has changed the lock, for example), and is not being peaceably opposed (tenant isn't there and saying they can't come in). He can do this for repairs/checking condition under statute (LL&T Act 1985), or for marketing if the contract so provides.

However, I think it is inadvisable* for a LL to enter without having the T's consent, except as a last resort after multiple attempts to make contact - or in an emergency, but that is allowed by statute anyway.

* For all sorts of reasons, ranging from accusations of breach of quiet enjoyment to tenant claiming their prized pearl necklace has gone missing. If a LL does enter without consent he should take a witness, just in case.

[jjlandlord]

This clause is in all residential tenancies as it is an implied term adding by statute (s.11 of Landlord and Tenant Act 1985).

My understanding is that:
- a notice is not a request,
- a landlord gaining access pursuant to such clause would not be breaching the tenant's right to quiet enjoyment,
- harassment implies repeating behaviour, not a one off.

That being said a landlord should be prudent if the tenant explicitly refuses access, and should in any case always be reasonable.

On the other hand a tenant should also be reasonable and should expect to receive a s.21 notice if he is not.

[45002]

Have a read of this 31 pages,310 post

http://www.landlordzone.co.uk/forums...705#post196705

Thread, where no one can really agree on anything

[monkeysee]

This clause is in all residential tenancies as it is an implied term adding by statute (s.11 of Landlord and Tenant Act 1985).

The viewing/marketing part isn't in the statute. The rest of it is - checking condition, doing repairs etc.

[monkeysee]

Be interesting to know who the police would side with if called to prevent a breach of the peace - LL trying to assert right to access and T denying it.

Depend on the attending officer, I suppose.... would guess the T in most cases, perhaps not though.

[jjlandlord]

The viewing/marketing part isn't in the statute. The rest of it is - checking condition, doing repairs etc.

I don't see anything related to marketing in that clause.

Be interesting to know who the police would side with if called to prevent a breach of the peace - LL trying to assert right to access and T denying it.

Isn't it obvious?
They would prevent the breach of the peace and tell the landlord he'd better leave before getting arrested, and resolve the matter through the court.

[theartfullodger]

It depends WHY they are entering : to view to check condition (for benefit tenantt, not so landlord can whinge about untidiness or dirty stuff in sink) or repairs agreed is one thing, 24hrs+ notice & reasonable hours, but for any other reason unless tenancy grants right & tenant has not refused then landlord would he on very didgy ground.

However, does tenant want s21? (Assuming AST)

[monkeysee]

I don't see anything related to marketing in that clause.

The viewing part is referring to marketing. It has been every time I've ever rented anyway. Doing viewings, showing to prospective tenants and purchasers. If it meant for inspecting then it wouldn't have listed inspecting its condition separately as well. It either means marketing or every estate agent I ever dealt with didn't know the meaning of their own contracts - not that that is something I would have any trouble believing

"That the Landlord or any person authorised by the Landlord may at reasonable times of the day on giving 24 hours notice (unless in the case of an emergency) enter the property for the purpose of viewing, inspecting its condition and state of repair for the purpose of repair or repainting."

Isn't it obvious?
They would prevent the breach of the peace and tell the landlord he'd better leave before getting arrested, and resolve the matter through the court.

Yes in most cases they would, however I remember reading of a case where a father told his adult children to get out of his house, and he ended up in the cells. Best to assume nothing where the police are concerned and you wont be disappointed.

I'm sure in most cases they would side with the T, but a silver tongued LL or a particularly dopey constable might have a different result.

They quite often side with bailiffs/debt collectors too, even though they are only there to prevent breach of the peace - have a look on youtube. The training budget needs to be increased.

[creswell]

Thanks everyone for the replies.

I must say I am a little confused.

I have always worked on the premise that T has the right to refuse access, its one of the pre-requisites to having a tenency (exclusive possession).

So in essence the general consensus that the L is able to do this?

[creswell]

the reason for access is viewing for prospective tenants.

[monkeysee]

So in essence the general consensus that the L is able to do this?

Only if he isn't being peacefully opposed (tenant is there and says no) and doesn't have to use force (tenant hasn't changed locks), and even then it isn't advisable.

If the tenant is there stopping him then potential breach of peace, amongst other things, so LL should retreat. If tenant has changed locks LL forcing entry and changing them possible violation of Protection from Eviction Act. Grey area as it's one right vs another, but very, very silly thing for a LL to do.

There are all sorts of things people can in theory do but shouldn't. LL gaining access without T consent is one of them.

[monkeysee]

the reason for access is viewing for prospective tenants.

I've changed the locks before in that case when the estate agent has annoyed me. But it's best to try and work with them, offer them an afternoon or two a week to do block viewings or something.

Behave reasonably is all, if they don't then be stern with them.... what are they gonna do? Kick you out? Im guessing you're moving anyway, hence the viewings.

What have they been like so far?




Here is the case of the father who got arrested for trying to kick out his adult children (paraphrasing) if anyone is interested btw
http://www.freebeagles.org/caselaw/C...lkes_full.html
http://www.bailii.org/cgi-bin/markup.../1998/938.html

Court of Appeal wasn't very impressed with the police

[creswell]

Thanks for your replies and opinions. It's not my tenancy, I am an adviser. In my opinion it is not acceptable. I don't think it's good enough to simply accept it on the premise that people do things they shouldn't. Information out there for tenants certainly alludes to the fact that it is incorrect practice and the enants permission for access should always be sought.

I was simply enquiring what other people thought.

Does anyone know if there is any caselaw on this?

Thanks

[thesaint]

creswell,

Have you read the thread given to you earlier on the subject?
In short, the tenant cannot refuse access anymore than he can refuse to pay rent.