Here is a question to the blog clinic from Richard, who is a letting agent:
I am a Lettting Agent and we are having issues with accessing a property for viewings as the current tenant is being quite difficult. We have been calling, emailing and writing letters but we either have no response or are told it is inconvenient. We seem to get this quite regularly with our tenants but as you can appreciate do not want to go in without their consent.
Obviously with these tenants we sometimes have to wait until they have left to gain access easily for viewings which then means the Landlord is losing money through a void period between tenancies.
Would the Landlord be able to claim against the tenants deposit for compensation of lost rent because the tenant was obstructive for viewings? And would a deposit scheme rule against the tenant?
I can see both sides of this problem. For example if I were a tenant, I really would not want someone else being shown around my home, particularly if I was not there. It is a real intrusion on privacy.
So far example if I had a busy job I would want to come home to relax, rather than have to tidy the house up because the landlord was coming round with a lot of strangers who would be looking into my bedroom and maybe sniggering at my possessions.
I can also see the landlord’s side – obviously they prefer to have new tenants move in as soon as possible so there are no voids.
There is also the lawyer’s answer which is that actually you cannot guarantee that the property will be available to let any time soon if tenants are still in situ. They are perfectly entitled to dig their heels in and decide to stay in the property until they are evicted by the courts – which will take about three to six months.
So a landlord would be most unwise to sign a new tenant up while the old tenant was still in the property.
Taking all that into account (particularly the last point) my view is that you can’t really penalise a tenant for failing to allow viewings. However it might be worthwhile for the landlord to offer a bonus to the tenants for allowing viewings and moving out promptly.
So for example the landlord could offer to pay the tenants a bonus of 50% of the rent if replacement tenants are found before they moved out, to be paid to them after they had vacated. He would still be better off than if there had been a void, and the tenants will no doubt be pleased to have a bonus to help with their removal.
I disagree with this- if your tenancy agreement states the tenant must allow access for viewings within the last two months/6 weeks of their tenancy within reasonable hours and 24 hours notice, it must be done.
Tenants are within their rights to say if not convenient, but cannot bar entry of the landlord/agent for the purpose of showing potential new tenants when they agreed to this prior to moving in.
The tenants should have their obligations explained to them, remind them of the agreement and whilst trying to be as accommodating as possible, let them know viewings WILL take place.
That is the landlords view obviously.
But it is complicated by the fact that the tenant has the right to stay on, so it is difficult to know exactly when those last two months actually are.
Gemma, you’re simply wrong I’m afraid. Just because something is in the agreement it doesn’t mean it’s legally enforcable.
All tenants have the right to ‘quiet enjoyment’ which essentially provides protection from harrasment and illegal eviction. This right means that the landlord or agent can only enter the property with the tenant’s permission or a court order, other wise they could find themselves in court.
This applies even if the landlord wants to carry out their legal obligations such as Section 11 repairs or a gas safety inspection (although there may be repercussions for the tenant if they refuse access for repairs).
The only circumstances you might get away with forcing entry is in a genuine emergency when someone’s life is in immediate danger.
Tessa, I like your suggestion of the rent rebate.
Legally you are right, however if I told our Landlords that they would have to give up 50% of 1 months rent every time a tenant vacates (which could be every 6 months!) we wouldn’t have any Landlords left.
I would never gain access without permission but I do believe tenants should be cooperative otherwise penalised for being obstructive.
I also strongly disagree with the idea of offering tenants a bonus to allow viewings whilst they are living in the property. The tenant shouldn’t be able to pick and chose which parts of the tenancy agreement they will adhere to, otherwise why have an agreement in the first place. It is of course totally right that their privacy should be respected and viewings made at convenient times but the tenant should not be obstructive. Hopefully most good landlords/agents provide comprehensive information and photos of their property & vet potential new tenants carefully before they view a property so in most cases as few viewings as possible would be necessary to re-let the property with therefore less inconvenience to the current tenant.
I agree with Gemma, it is also in our Tenancy Agreement which was drawn up by our Solicitor.
If it says it in the agreement then the Tenant should allow access, that is not to say that we would just barge in as we should adhere to the Quiet Enjoyment clause however the tenant should also adhere to the clause that says if they have advised they will be moving out we are allowed to show prospective tenants the property during the 30 days prior to departure.
Also there is no way I would give tenants a bonus for moving out on the day they said they would move out – if this was started then more and more tenants would hold landlords to ransom for only doing what they should have done in the first place – rant over! 🙂
I’m not telling landlords to do anything! Its entirely up to you.
However tenants are perfectly entitled to dig their heels in and refuse to move out until you evict them. I know this because I have acted in eviction proceedings for many years and have seen this happen lots of times.
Landlords need to be aware of this.
Dear Tessa, Love your blog and especially the fact that you can see both sides of a situation. You then point out the Legal viewpoint, which is what we all need to know. re. paying tenants a bonus if new tenants are found before they leave. I would respectfully suggest that this could be construed as a financial inducement to leave, and therefore harassment.
Er no, the legal viewpoint is that tenants are legally entitled to stay in the property until they are physically evicted by the Court Bailiffs after a court claim lasting some 3 – 6 months.
I’m not sure if a court would consider it harassment to offer someone a bonus if they co-operate with the landlord in finding a replacement tenant and move out promptly when they said they would.
Its not really in the same order as threatening to kill them and stabbing them in the back as happened in the R v Chyna Gray and Others case https://landlordlawblog.co.uk/2011/09/07/bad-landlords-three-successful-prosecutions/
But what do other people think?
Many of the views expressed here are valid, but there is too much dancing on a pinhead in the sense that some seem to think it is OK to have an access clause in a tenancy agreement but for the tenant to then totally disregard it. How would the tenant like it if the landlord decided not to discharge some of his obligations?
The plain position is this is a contractual obligation freely and willingly entered into. Yes if you enforce it the tenant might get tetchy and decide not to vacate end of term on time. Fine long as he keeps paying the rent and looking after the place who cares unless the Landlord is desperate to sell?
Too many tenants hide behing the “it’s our home keep away” line. of course it is – but they do not oen it. If they want to dictate terms then buy it themselves.
The clauses as appearing as standard in many agreements these days require reasonable notice and attendance at reasonable hours. I certainly don’t subscribe to the “sniggering at their possessions” view either. It is an accompanied viewing for a very specific purpose and no-one (I hope) Is opening drawers or wardrobes or otherwise poking their nose in where they shouldn’t.
Viewing clauses, same as access to repair clauses, are a mutually agreed part of a contract that should be observed by both parties.
I also do not agree in regard to the Landlord’s s11 repaiting obligations and especially not gas safety renewal visits. Try saying you couldn’t breach the tenants PFEA 1977 rights when they have been poisoned by your gas boiler and see what happens.
The question was, can the landlord charge for compensation from the deposit if the tenant fails to allow the landlord to show prospective tenants around.
I don’t think he can, partly because the tenants have the legal right to stay on after the end of the fixed term if they want to. So it may not actually be ‘the last six weeks of the tenancy’ or whatever.
Mind you, if the tenant has given notice to quit, the landlord can charge double rent … https://landlordlawblog.co.uk/2009/12/01/ancient-law-may-help-landlords/
However so far as the ‘bonus for co-operation’ point is concerned, I am just throwing out ideas. Its up to individual landlords what they do.
As someone who prosecutes landlord harassment I can say, with 100% conviction Ian “No”, I wouldnt touch that with a bargepole. I would probably encourage the tenant to take the offer.
This is such a common problem and I am thinking it over anew. Most written tenancy agreements have a clause in them about viewings, often during the last 28 days of the tenancy, and obviously the tenant shouldnt unreasonably obstruct this process, but if they do what have you got? Breach of tenancy, Ground 12, a discretionary ground that would allow the landlord to apply for possession.
As everyone is clearly picking up, going in for viewings without permission would be a breach of covenant for quiet enjoyment, the only legal resolution would would be a section 8 possession claim under ground 12. A fools errand in anyone’s book.
Which kind of makes the point that the “Entry for viewings” clause is a classic bit of windmill tilting that doesnt reflect the realities of landlord/tenant relationships. In the real world an inducement to tenants for the inconvenience would probably be a better bet.
I have only done viewings in properties I have owned and they are a major pain. Even if you live cleanly and tidily anyway you always have to go the extra mile and having to continually interupt your post-work evening activities and be friendly and diplomatic to strangers is hard work when you are the ultimate beneficiary, let alone when you are doing it for someone else’s benefit.
My advice? Ditch the standard clause and expectations come to some practical, financial arrangement with the tenants.
If the tenant repeatedly refuses access after reasonable notice has been given, and the tenant is required to give such access under the terms of the tenancy, can a landlord not serve notice seeking possession relying on discretionary Ground 12? This ground covers tenants in breach of their contractual conditions, other than rent payments…
…and also, to get around the ‘last two months’ problem, perhaps one should use the phrase ‘last two months of the fixed term’?
Let’s sweep a few up here:-
Sorry Tessa yes compenation from deposit complete non starter (probably even before TDP)
Ben – don’t be ye of so little faith I have won a ground 12 case. But yes it does depend on circumastances.
Breach of PO/QE – yes it may be but who is going to do what about it? Suppose it does get as far as Court?
I would never, ever advise a Landlord to bribe a tenant for actually complying with a contractual obligation no matter how weak or daft the obligation my be or seem. Thereby lies the road to constant tenant blackmail.
Ben – finally the practical arrangement? If you are renting elsewhere Mr tenant I assume you will want a reference from me and prefer it to be a good one………?!!!
Paul the timings of our posts show we had exactly the same idea at the same time:).
Not allowing access to view is a breach of tenancy, which allows the landlord to go for possession, which hardly solves the real world problem does it?
My open question to anyone reading this is, forgetting Ground 12 and all the shenanigans that brings, what do you think would be an appropriate deal to offer a tenant to cooperate with viewings? ONe that respected both parties rights and lives?
@Paul I’m not sure a clause allowing viewings during the last six weeks of the fixed term would be enforceable – eg under the Unfair Terms in Consumer Contracts Regs
Bearing in mind that the tenant has the legal right to stay there for at least three months longer, probably more, while the court order for possession is obtained.
I can’t see a Judge granting an injunction for example.
I/O your line “I have won a ground 12 case” speaks volumes haha. “I regularly win ground 12 claims” would impress me more. And anyway it isnt about the winning or losing of ground 12 claims, which as you say depends on the circumstances. In the scenario the issue is the practicalities of ground 12 as a route given the needs of the landlord.
And it isnt a question of bribing a tenant for complying with a contractual obligation, its about coming to mutually agreeable resolution, given the landlord’s need to conduct viewings and tenants needs for privacy. A bit of give and take is what is needed, not legislation or case law
Ben – ha, I noticed that. But yes I agree it should in reality be dealt with practically, which is different in every case.
To be honest as a lifelong tenant I’ve never had a problem letting people be shown round, it’s the nature of renting, but appreciate there are tenants with different views causing different problems…
Tessa – agreed.
Ben one man’s “coming to a mutually agreeable resolution” is another’s bribe. Just ask the posters here they’d split 50/50.
I’d simply ask the tenant, without any witnesses, whether he wanted to have a good reference and whether he was hoping the landlord would agree with what undoubtedly was his view that he was handing the property back in far better condition than it was when he moved in. And that therefore he was expecting the return of his deposit in full and quickly.
Your are – fair enough. Now about these viewings we need to carry out……
Oh I/O that most definately would cross the line for me as a TRO.
I wholly reject your assertion about one man’s bribe. To me there is a distinction between coming to a mutually agreeable solution and a covert threat, which is what you are suggesting. That may come under the Protection from Eviction Act 1977 Section 1 (3) b: )to refrain from exercising any right or pursuing any remedy in respect of the premises or part thereof;
You surprise me Industry Observer advocating landlords should behave criminally. I always had such high hopes for you
Ben
You want a practical solution from me?
Tell you what let me ask you – these “inducements” you are so happy to offer. I’m your tenant – so how much?
£25 a viewing? £50 a viewing? You want to sell hmmm must be making a healthy profit I’ve kept the place so tidy!!
So how about £100 a viewing- tell you what I’m a fair bloke so in case it doesn’t go to the first prospect lets say £250 I’m a reasonable person.
What’s that – you are worried I might not then move out when I should? Course I will I am an honourable person.Don’t worry of course I will – for another payment probably £1000.
What’s that? Thin end of a wedge? Well it wasn’t me that asked for money in the first place, you offered, but now that you have asked…………
Tongue in cheek this of course Ben I have great respect for you and all who refer to practicalities are of course right. But tenant inducements are a slippery road, from your picture I see you are much younger than me. I have seen this all before including repeat payments!!
Ben there are no witnesses but as a TRO what are you going to do about it?!!
Ben
Re you losing faith in me. I don’t advocate anyone breaking the Law, I just deal in facts.
Fact – if the tenant is moving onto another rental then he will probably need a reference. So what does the landlord, who does not lie, say on a reference when asked if they have been good tenants? Or if they have fulfilled all their obligations during the tenancy (the agreement obliges them to allow viewings on reasonable notice).
If they won’t need a reference fair enough leverage lost.
In terms of discussing deposit return I am doing the tenant a favour in flagging up this potential problem for them, at the end of the tenancy, now. If they are not going to be in a hurry for their deposit for their next tenancy, OK leverage lost.
Ben I am an unusual profile in lettings as I am both theory and practice, academia and operations. The solution to most problems unless incredibly complex is usually fairly obvious. The difficulty then is with implementation, either the will or the ability (just look at politics!!)
You say that Ground 12 is useless and the LL is impotent and by and large I agree with you. So I give you what you and others ask simple and practical operational solutions and you shy away.
The PFEA 1977 by the way as you quote I am sure you are more expert and familiar with it than I am. But I know enough about the practicalities and how it is applied to know what I am advocating here woould never fall foul of the section you quote.
Or if it did not to result in any meaningful action against the landlord.
Now throw all the tenants belongings out on a wet Friday night and threaten is missus (pregnant) with a baseball bat oh yes and while you are drunk and then put a metal plate across their front door.
Now THAT is breach of their peaceful occupancy rights!!
Time for my first G & T – have a nice week-end yourself
Why I/O you old charmer……That picture was taken last year but I’m merely the product of good genes and a juicer. I started as a TRO on Feb 2nd 1990, so I’m no spring chicken, faux naif or bleeding heart.
I’ve met some godawful landlords in my time, and I mean murderers, gangsters, fraudster and villains of all stripes and I’ve also encountered all the stereotypical nightmare tenants, intent solely on ripping off their landlords from day 1, but am I cynical? No actually, because I know that these types are the extremes, not the norm.
The possible scenario you suggest will certainly appeal to a specific mindset of tenant, who do genuinely exist, but not the vast majority of people, who are entirely reasonable for the most part.
I have to mediate and negotiate deals like this all the time and if the tenant is being stupid I give them a heads up of the kind you suggest….why raise these problems when it might make it harder for you to rent in the future?
It actually isnt that hard to get landlords and tenant sitting down together to thrash out a solution. Its the bit of my job I enjoy the most, as opposed to running around, kicking in doors and shouting “We’re TROs Tinkerbell and we aint ‘ad our dinner”.
You ask as a TRO what I am going to do about your hypothetical situation? Give it to a trainee to learn from and get on with my job of helping landlords and tenants make their relationship work
The whole bribery thing is a non-starter. Please check the legal definition of bribery. What we’re discussing here is a private demonstration of goodwill not a bribe!
“some seem to think it is OK to have an access clause in a tenancy agreement but for the tenant to then totally disregard it.”
No one is saying it’s acceptable behaviour if the tenant is just being obstructive without good reason. In some cases it may very well be justified, e.g. genuine serious illness or perhaps a death in the family etc. Would you want people traipsing about your home in these circumstances?
We’re just saying it happens. It isn’t good for landlords but in reality there is naff all you can do about, although a financial incentive is possibly an option one might consider.
Good move Ben
On the job training – well almost!! Apply the same technique to any refusal to allow periodic visits – I hate the word “inspection”. My wife has the Dyson out twice daily (sadly it is not an affectionate name for my best bits!!)so if we ever rented and someone told my wife they were coming to inspect her handiwork with the daily twice used hoover there’d be blood on the walls!!
But not all tenants do refuse visits for understandable moods of pride. Some of them do run brothels (seen it), keep 4 dogs without consent (seen it), sub-let without consent to 15 Europeans or Asians (seen it) and so on.
So in these cases after repeated letters, emails and phone calls tha advanced techniquer is needed. This is take a key and someone else with you, ring the bell (listen for dogs and foreign accents!) then turn to colleague/friend and say “Can you smell gas?” to which they say “yes and it’s strong isn’t it?”
Then you go in – after all the poor tenant, who has been refusing access for a CP12 renewal, could be struggling for life in there.
Yes it is their home and we know it may be immaculate but equally…….
Have a good one Ben no doubt there will be more worlds to be put right next week!!
I/O I confess you have completely lost me now.
I no longer know if you are for or against tenant’s rights in matters of entry. Nor where you are going in the area of gas and foreigners.
I think you’ve had more than one G&T, but what the hell, the sun’s over the yard-arm, I’ve got a JD & Coke on the go myself.
Brothels? 4 Dogs? 15 Europeans? OK, I’ll see your hand and raise you 23 Nigerian students in a 3 bed house, 10 illegal Fujianese immigrants in a shipping container and 6 Congolese living in a shed whilst digging out an unlawful cellar conversion for their abusive landlord, all within the past 3 weeks.
Whats your point mate? Top trumps on human misery?
Its an entertaining argument but I’m not sure it is going for Richard’s basic argument
@Ben and Industry Observer,
I’m a tenant and have been concerned about some of the points you’re discussing. I was looking through some websites to find any clarification or helpful information that would assist me.
I have purchased Tessa’s book regarding tenants and landlords rights.
I would love to say to you both after reading the original text by Richard and continuing through the thread, Ben and I/O you have made my evening it was a pleasure reading your comments, educational and absolutely enjoyable, made me laugh!
Thank you for the lesson in tenants and landlords rights, and the comedy!! ;o)
Hi Andy
Thanks for commenting and even more for buying my book! I assume this is the Lawpack book.
However I should point out that it is some time since the publishers asked me to review it and so parts of it (especially tenancy deposits) may be a bit out of date now. Be aware of this.
The best place for up to date info is http://www.landlordlaw.co.uk 😉
Hello Tessa
Yes that is the one, I have recently moved in to a private rented property, one morning as I was leaving for work a contractor was about to let himself in with keys he had collected from the letting agent.
Obviously I was concerned and asked why this was, he replied that he was there to service and check the gas supply etc, I refused him entry as I had no previous correspondence with reference to this.
I was polite and told him it was not convenient, he was fine and understood and went on his way. I then called the letting agency asking them what was going on, they told me that they had sent my partner two text messages and an e-mail stating the time of visit etc and also the contractors had left a message on the day to confirm appointment.
I told the letting agent that although I was unaware if my partner had received any messages of any kind and that I was just about to call her and find out I was not happy with any person having keys to enter the property, the agent then told me they have got the right as they had given 24hrs notice.
I had your Lawpack book to hand, and a quoted the ‘Covenant Right To Quiet Enjoyment’ stressing that unless I give permission to enter they was causing a problem.I then called my partner she had no correspondence whatsoever.
I then called back the letting agent, arranged a new time for the following day, he was abrupt and said that they have the right as it was an emergency that that the boiler was due for service and that they could be fined £5000 if it was not done.
Have to say we have sorted out the issue and made it clear to the agent that unless we are present for any work or inspections they are not welcome to enter the property unless of a dire emergency, I also said I would change the locks as we are uncomfortable about who could access the property, but would change the locks back to the original when we leave.
Your book and information on your blog etc has been very helpful Tessa, it is straightforward and easy to understand, and even though I did confirm some issues with Shelter I am very pleased with the book!
I did reply to you through my e mail, but as I am not computer literate I was not sure if it was received, so here it is again, lol ;o)
Crumbs bracketed for praise with Ben I am honoured!!
@Andy
Agent talked nonsense an emergency for this purpose has to be life or property threatening to you or neighbours and properties. That did not apply in this case and is a lame excuse for going in. What they did was assume implied consent because you didn’t say “no”. That doesn’t wash legally either.
HOWEVER
Have you given a set of the changed lock keys to the agents? Doesn’t sound as though you have, but wither way you should not have changed them without at least agent knowledge and strictly speaking consent.
Provocation and fears for personal safety andd security are always good tenant arguments in Court though!!
Hello I/O
Have not changed the locks as yet, I mentioned it in a letter that I addressed to them with reference to all I mentioned above.
I simply said that I believe I have the right to change locks as long as I replace the originals when leaving.
I know at times it could cause more problems saying I would do this or requesting it as the landlord or letting agent could make or tenancy more difficult especially if we wanted to stay on longer.
I only mentioned it as a matter of saying we are concerned about matters of security as how are we or the letting agency that sure that a contractor may be criminally minded and have another set of keys made and passed on to another, as they would know our movements and times of being out!
We like where we live, and we have even made improvements on the property and also fixed work that needed doing without the need to call in anyone.
Being in the trade myself it is just as easy for me to do things at no cost to anyone.
Basically we were just aggrieved that it was taken for granted that we would accept that anyone could enter the property and then even more annoyed when we was told it was their right ASSUMING we was ‘WET BEHIND OUR EARS’ regarding the law!
Thanks I/O