Whether or not a landlord can enter his tenant’s property to carry out inspections, repair work etc even if the tenant is unhappy about this, is a hotly debated issue.
In this post I examine the various options and situations that may arise, to try to provide some clarity.
Lets take a look at the law first.
What the law says
It is an established rule that all tenants enjoy what is rather confusingly called ‘the covenant for quiet enjoyment’.
This does not mean that they are entitled to a noise free property or that they are entitled to enjoyment.
It means that they are entitled to live in the property without interference from the landlord or anyone acting on his behalf (such as his letting agent).
There is also another legal rule which says that “a landlord may not derogate from his grant“.
This means, effectively, that a landlord cannot grant a tenancy and then expect to be able to treat the property as if it was his.
So the law is (or should be) on the side of the tenant if he wants to keep his landlord out.
“But”, I hear you say, “landlords DO have a right to go into the property. It is theirs after all.”
Then there are times when they will have to go in – for example when carrying out the annual gas safety check or to do the quarterly inspection. What about that?
Is it the landlords property or the tenants?
Lets take a look at the first issue first. Is it the landlords property?
Well it is and it isn’t. Confusingly it is possible for several people to ‘own’ the same property at the same time, in different ways. So for example:
- Fred can own the freeholder
- Leslie can own a long lease (from Fred)
- Tanya can own a six month AST (rented from Leslie)
- Nish (the neighbour) can own a right of way over the garden and
- Megabank Ltd can own a legal charge or mortgage on the property
So Fred and Leslie will ‘own’ the property in a way, but this will be subject to the rights of their tenants.
For example, with the AST, Tanya will have the right to use and live in the property. Leslie will have given this away in exchange for the right to receive rent and get the property back when the tenancy ends (known as the ‘reversion’).
In the same way that you cannot have your cake and eat it – you cannot rent out your property AND retain the right to go into it when you want.
Always excepting that a landlord can enter the property in a case of genuine emergency – such as a fire.
What about legal rights of access?
But what about those circumstances when the landlord is given a statutory right to do something – such as s11(6) of the Landlord & Tenant Act 1985 which provides for landlords to be authorised to enter the property after giving not less than 24 hours written notice?
Or clauses in the tenancy agreement which provide for the landlord to have a right to enter, to (for example) carry out the annual gas safety check or show round tenants during the last month of the tenancy?
Lets start off by looking at the notice.
Any right the landlord has to go in will be dependent (save in a case of genuine emergency) on the landlord giving the tenant written notice first.
Indeed, any clause which authorises the landlord to go in whenever he likes will be void under the Unfair Terms in Consumer Contracts Regulations 1999 – as it will be taking away a right which a tenant normally enjoys.
The general rule is that the notice must not be for less than 24 hours. However I would suggest that preferably the tenant be given considerably more than this. Ideally a couple of weeks. Then if the tenant wants to be present, he will have more time to arrange for this.
If you send the letter by post, you may also want to back this up with an email – just so the tenant can’t claim that the letter got lost in the post. And also of course because sometimes letters DO get lost in the post and you want the tenant to have a proper warning.
Its important that you and your tenant are on good relations, and being considerate about things like inspection visits (which many tenants feel are a bit of an intrusion into their home) is an important part of this.
Assuming the notice has been given – lets now look at some scenarios.
(For ‘landlord’ please read ‘landlord or his agent’).
1. If the landlord gives notice and the tenant specifically confirms that they agree or that they have no objections.
In this case, unless the tenant retracts this, the landlord can use his keys and go in.
If he has no keys, then he will be dependent on the tenant letting him in. Note that there is no right per se for the landlord to hold (or demand to be provided with) a set of keys. It is assumed in these scenarios, that the landlord does hold keys.
2. If the landlord gives notice and the tenant does not reply, but has not objected in the past when the landlord has gone in.
Here there will be a ‘course of dealing’ and the landlord will be entitled to assume that he can still use his keys to enter and do the inspection (or whatever). However, you may want to just get the tenant to confirm this.
3. If the landlord gives notice and the tenant does not reply – where this is the first inspection visit.
Here, if the landlord has made it clear to the tenant at the start of the tenancy that they will want to gain access for inspections or if this is very clearly flagged up on the tenancy agreement, it is probably safe for the landlord to use his keys to go in.
However it might be prudent to try to contact the tenants first, maybe by phone or email, just to check.
4. If the tenant gets in touch and says that he does not want the landlord to go in
Here the landlord should not enter. He should try to re-arrange the appointment. If the tenant is persistently obstructive he can:
- Write to the tenant and point out that he (i.e. the tenant) will be liable for any deterioration in the property due to the landlord being unable to carry out repairs and
- That if the tenant is injured by something damaged in the property, he will not be able to bring a claim against the landlord, as it is his fault the landlord was not able to get the damaged item repaired
- The landlord may also want to consider threatening to apply to the court for an injunction and/or serving a section 21 notice and evicting the tenant in due course
5. If the tenant does not get in touch but refuses to allow the landlord or his workman in to the property at the appointment time
Again, the landlord will not be able to enter the property against the tenant’s wishes. The points made in 4 above will apply.
In addition the landlord may also be able to claim against the tenant for the costs of the wasted appointment.
Some tenancies will specifically provide for this, but it is arguable that in some situations it is chargeable anyway – if the landlord is able to show that this is a financial loss he has suffered as a result of the tenants’ breach of contract (i.e. by failing to allow access at the proper time) – and that the tenant was aware that this would happen.
For example the landlord will probably have to pay a call out fee to any workmen or gas installers attending to do work or carry out an inspection, whether or not they are allowed into the property.
Reasons why the landlord should not go in against his tenant’s wishes
Even if the landlord were legally entitled to enter a property against his tenants expressed wishes (although my view is that he is not entitled) there are some very good reasons why he should not do so.
For example if you are a landlord and your tenant was upset to find that you had used your keys to go in:
- This could trigger the start of a deterioration in landlord / tenant relations and your tenant may develop a hostile attitude towards you in future
- The tenant may claim that you have broken or stolen something which belongs to him – for example he could claim that a valuable watch or necklace has gone missing and seek to blame you and claim compensation. You may find it difficult to prove otherwise, if you were there on your own, against the tenant’s wishes.
- The tenant could complain about you to the Local Authority tenancy relations officer – if you are an HMO landlord requiring a license this could affect future license applications
- Your tenant may decide that he does not want to stay at the property beyond the end of the fixed term, putting you to the expense of finding a new tenant and the risk of a void.
These are all undesirable!
Rooms in a shared house
The situation is slightly different if the tenant rents his own room and has the use, together with the other tenants, of the shared parts of the property. Such as kitchen, bathroom, lounge, hallway, passages etc.
Here the tenants’ rights to keep out the landlord will apply to his room. They will not necessarily apply to the shared parts – as he does not have ‘exclusive occupation’ of those areas.
So a landlord will be able to enter the shared parts to inspect, do repairs and show round new tenants, preferably with notice, but possibly even without it.
My view has always been that the landlord will have the right to enter the shared parts to carry out any ‘lawful’ activities but not otherwise.
So a tenant will be entitled to complain, maybe to his local TRO, if the landlord is constantly coming into the property for apparently no good reason but to spy on the tenants, but not if the landlord has come in to fix the taps or do an inspection visit with a new tenant. What’s your view?
I think that sums everything up, but if you disagree or think I have left something out please leave a comment below.