It is not unusual to hear about landlords being accused of, or even sued for, ‘trespass’ of a rented property by a disgruntled tenant. Although a property is let, and it remains in the legal ownership of the landlord, this does not grant an unlimited right of access without some form of agreement with the tenant. There are, however, certain circumstances which allow for access but even these are not without their exceptions.
They say that an Englishman’s (and Welshman’s) home has always been his castle. However, as we all know, there are two very different types of castle; there are those with tours, welcome signs, a car park, ornamental grounds (in which you can picnic) and a coffee shop. On the other hand there are those with their drawbridge firmly up, a moat filled with dark swirling water, and paid lackeys waiting on the turrets to fire arrows or pour boiling pitch onto anyone who dares to approach.
There is a modern day parallel here with tenants. Some tenants are happy to allow access for any visit, be it inspections, repairs, maintenance or viewings. These people are generally thrilled that they have a landlord (or agent) who shoulders all the effort of arranging and paying for necessary works. These are the tenants who allow keys to be given to contractors, set out tea and biscuits for the workmen and leave us helpful notes when we do our periodic visits.
The other group (the ‘drawbridgers’) have a different view; these people demand to be present for all repair, maintenance and inspection visits, stay close throughout the visit and want to know what has been jotted down. However, most ‘drawbridgers’ are usually more than accommodating when it comes to visits and inspections, and accept that they will need to take time off work during the day to facilitate these.
If you know your tenants well, you will understand who fits into which camp and how each stance has its justification. Whilst the first group obviously make the landlord’s life easier, neither is right nor wrong, and an effective working relationship can be forged with both.
Legislation on property access rights
Landlords could easily be forgiven for being totally confused about the legal rulings on access. Landlords are advised that the law holds them responsible for safety and repairs and threatens them with hefty penalties for non-compliance. But they are also advised that if they go to the house without the necessary permissions, they can be sued for trespass and for breaching the tenant’s right to quiet enjoyment.
Property repairing obligations
(a) keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),
(b) keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation, and
(c) keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.
The landlord will obviously need access to the property in order to carry out these repairs. In addition to access for repairs, the landlord also has a right to view the condition of a property. The landlord or someone acting for the landlord, as their agent, can gain access to
the property at a “reasonable time of the day” but only after giving the tenant a minimum of 24 hours’ notice in writing.
Access for repairs
The Housing Act 1988 and changes made by the Homes (Fitness for Human Habitation) Act 2018 to the Landlord and tenant Act 1985 both imply a term or covenant in every tenancy agreement that the tenant should give reasonable access for repairs to be carried out in the property.
Despite the above, the prevailing principle is that the landlord or agent cannot access the property if the tenant explicitly objects to them doing so. This can cause frustrations and delays for a busy landlord who wants to ‘get on with the job’.
So far so good; however, under common law the tenant also has a right to ‘quiet enjoyment’ of the property.
This is an implied term, or covenant, which has been expressed or implied in conveyances and leases of English land for centuries. This covenant means that the landlord has to allow the tenant to live in the property without undue interference, i.e. “without interruption of the possession”.
This term has nothing to do with noise although many tenants who have been disturbed by a neighbour’s music will insist on telling you it does. It allows the tenant unhindered use of the property, as detailed in the tenancy, and grants protection from undue interruptions or harassment.
‘Quiet enjoyment’ is a term so often misunderstood. Going back to a case in 1888, Jenkins v Jackson, the judge stated that the word ‘quietly’ in the covenant; “does not mean undisturbed by noise. When a man is quietly in possession it has nothing whatever to do with noise … ‘Peaceably and quietly’ means without interference – without interruption of the possession”.
Access for viewings – end of tenancy
The tenant has given notice to move on and is keen to get a good reference and their deposit back or the landlord has given notice and the tenant has to move reluctantly.
In both incidences, the agent and landlord can undertake viewings according to any clause covering this included in the tenancy agreement.
Obviously, conducting viewings will typically be much easier and more harmonious if the tenant has given notice and not the landlord.
If the tenant has given notice (i.e. chosen to leave), it is clearly unreasonable for them to refuse access for viewings. However, in cases where a tenant is blissfully happy in their home and the landlord decides to give them notice, a landlord should be sensitive to the situation. The tenant will incur great upheaval and additional expenditure to move from a place where they are content. Children may be forced into moving school, and friendships and support from neighbours can be lost.
Forcing viewings on tenants at this time needs to be handled with sensitivity. Some landlords are highly sympathetic to this and request that no viewings are undertaken until the tenants have departed, however others are more demanding.
If the property is being sold and a valuation is needed, the landlord or agent should attend to reassure the tenant. The estate agent is asked not to undertake speculative viewings. The
tenant could be asked to volunteer one day each week on which they would accept viewings. Landlords need to appreciate that the tenant gains nothing but stress in having to keep the house tidy and open to strangers seven days a week.
Never give the tenant’s contact details to an estate agent, and expressly request that viewings are arranged with the landlord.
Finally – there is a courtesy that is so often overlooked. When taking photos of the inside of a property, never ‘show’ any of the tenants’ possessions and ask that estate agents do not do so either. It is not reasonable for a tenant to see photos of their personal items such as clothes, family photos etc. on the internet or in a shop window.
Landlords right to access property without permission?
Access to rented property is not straightforward and landlords should not assume any particular rights for when and how often a property can be entered. For tenants, it is their private home and for the landlord it is their valuable asset which needs to be closely monitored.
Balancing the rights of tenants and the legal obligations of landlords can be difficult but should be manageable.
The second article will look further into some day-to-day issues and the circumstances under which the law allows the landlord access without the express permission of the tenant.
Have you been affected by access issues either as a Landlord or a Tenant? As ever, I’d love to hear your comments on this often delicate and stressful situation.
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