Access to property
In the first part, we looked at the apparent anomaly of the landlord’s obligations to carry out repairs and maintenance at a rental property, and how that could conflict with the tenant’s right to live in the property free from intrusion and harassment.
While there is legislation to support both sides, it is fair to say that this favours the tenant and rightly so. They pay rent to use the property and the landlord must therefor forfeit any rights to access it at will or when it’s convenient for them. If the tenant believes that their privacy is being infringed upon, it is likely to lead to a strained landlord/tenant relationship, and possibly curtailment of the tenancy
When tenants feel under scrutiny, they sometimes accuse the landlord of some other intent, and if the landlord is unwise enough to go into the property when the tenant is not present they may be making themselves vulnerable to a claim by the tenant that they have damaged or stolen something.
All notices for access must be in writing and be ‘fair’. To include a tenancy clause allowing the landlord or agent unrestricted access to the property would probably contravene the unfair terms in the Consumer Rights Act 2015.
When the rental property is a flat in a leasehold block or a room in a shared house, it can become difficult to establish whether the landlord’s visits are infringing on the tenant’s quiet enjoyment or not; the landlord has a right (and maybe also a duty if a director of the management company) to visit the block or shared house to check on the communal areas and facilities. However, access should be restricted to the communal or shared areas only and a landlord should never encroach on the tenant’s private space.
There are some circumstances in which a landlord can justify entering a property without express permission from the tenant. The law would support entry in the case of an emergency.
True emergencies are extremely rare and can be defined as incidents where there is a real and proven threat either to the structure of the property or to life, such as:
- a fire in the property
- structural damage that requires urgent attention
- water flowing from the building
- a strong smell of gas
- suspicion of a violent or criminal incident
- a serious concern for welfare.
In these circumstances, an agent or landlord must still be seen to be behaving ‘reasonably’ if they enter a property. At all times, they must be mindful of how they can justify their access should it be challenged later by the tenant. As always, it is wise to obtain photographic evidence of any issue, make clear contemporaneous notes, log any police incident number and obtain signed statements from any contractor present.
Less critical issues
Other matters are often raised by neighbours, such as an overflow pipe running, loose guttering, a dog barking or a window left open, but these do not constitute an emergency. In such cases, a landlord should try to contact the tenant or their next of kin to bring the matter to their attention.
Gas safety checks
The area that perhaps causes the most contention is that relating to gas safety checks. Every year, a landlord must instruct a Gas Safe registered engineer to undertake this check. This is to keep the tenant safe and to protect the landlord from prosecution.
Strangely, some tenants are reluctant to allow it and liaison with the tenant can be fraught with obstacles. Obviously, the easiest option is to write to the tenant informing them of the day and time for the gas safety check. Some tenants will phone and re-arrange to a time where they can be present, others are not too bothered and are happy for the contractor to attend in their absence.
Access to property denied
A request for access for a gas safety check can be rebuffed in a number of ways.
Not important enough
There are those who do not understand the importance and phone up to cancel a planned gas safety inspection because ‘something else has come up’. They are pleasant enough on the phone and try to reassure that there is nothing wrong with the boiler, so a delay of one or two weeks should not be a problem.
Many tenants just do not respond to communications and unless they have explicitly denied you access to the property, a Gas Safe engineer should be able to let himself in if appointed by the landlord as agent and providing the tenant has been given 24 hours’ notice, as an absolute minimum, in writing.
Other methods of making contact can be to try alternative methods of contacting the tenants: pop a message up on their Facebook page or call at the property in the evening, ringing the doorbell just to hand them a letter (do not try to go in).
For some inexperienced tenants or those with a mental illness, the next of kin can also be a great help in facilitating access.
However frustrating it is, remain calm and inform the tenant in writing that:
1. the gas check or repair work is for their own safety and possibly the safety of others;
2. they can be liable for the cost of any broken appointments;
3. they will be held liable if they suffer injury or damage because of a fault in the property that the landlord was not able to remedy;
4. they will also be held liable if the property deteriorates because the landlord was not able to repair a fault and/or
5. they are risking their tenancy.
When every other avenue has been exhausted, the next step is to write a letter informing them that you will start on a more formal route to gain access.
Start by involving the local environmental health department or, if necessary, the Health and Safety Executive. Tell them about the problem and ask if they can call or write to the tenant to reiterate the importance of allowing access. In most cases, the tenant will allow access when the local council gets involved.
The least preferred strategy is to take legal action using the following three options:
- Apply for an injunction to allow access. This involves the cost of a court fee and can be the quickest, but expensive process. Judges are usually sympathetic to landlord requests so long as they can prove they have taken all reasonable steps to resolve the matter out of court.
- Serve a section 21 notice seeking possession.
- If the tenancy is still within the fixed term, then it may be necessary to go for a court hearing under section 8 citing Ground 12: Any obligation of the tenancy has been broken. Although a discretionary ground, a judge is likely to be sympathetic if they are convinced the motivation is genuine.
The fundamental starting point is an understanding that the tenant has the right to exclude others from the property, including the landlord. The only exceptions are those written into law or the contract. Beyond that, any access to the property will need to be with the tenant’s consent. In practice, this is often easier to achieve if the suggested timing and reasons for any visit are reasonable and clearly communicated.