This is the fifth post looking at the ten most common tenancy agreement breaches by tenants, as identified by Direct Line in their survey, which I discussed in the introduction to this series.
This post is about changing the locks – and apparently some 16% of tenants are guilty of this.
Tenants changing locks
Changing the locks is an emotive issue. Tenants often feel insecure in properties knowing that their landlords (or their agents) carry keys and can walk in at any time.
For example I will always remember the female tenant telling me how she was terrified to take a bath after coming onto the landing wrapped in a towel only to see her landlord leering up at her from the bottom of the stairs.
Old Landlord Law Blog lags will remember this post from 2011 where a tenant told us how the police had taken her landlords part when she changed the locks after her landlords kept letting themselves in without consent, telling her that she would be arrested if she changed them again.
We had a furious ‘ding dong’ discussion in the comments about whether changing the locks constitutes criminal damage. The barrister in that discussion thread finally agreed that the landlord in the case was out of order and the tenant was in the right when changing the locks. In those circumstances.
However, he also made the point, that tenants do not have the right, per se, to just go in and change the locks as a matter of course.
Tenants who do this:
- May be in breach of the terms of their tenancy agreement
- May be committing ‘criminal damage’ by removing the lock without cause (especially if they then throw it away), and
- Risk being evicted at the end of the term, and getting a bad reference which will make it hard for them to rent anywhere else.
So when can tenants change the locks?
There is no hard and fast rule. It all depends on the circumstances and on the general ‘reasonableness’ of their action.
It will in most cases be a breach of their tenancy agreement. Even if there is no specific clause about changing the locks, it will usually have clauses forbidding making changes to the property – which would include the locks.
So the tenant will only be justified in doing this if there is some compelling reason.
Situations will include:
- Landlords entering to harass the tenant as discussed above, particularly if the landlord is male and the tenant is female and frightened of him
- Landlords persistently entering the property, in less obviously ‘harassment’ situations, but where they have been requested in writing not to enter without specific consent, but despite this have continued to do so
- Where the keys have been lost or stolen and the tenants fear that their security is at risk – particularly if failing to change the locks in this situation would put their insurance at risk. (However, the landlord should be notified in this situation ideally before the work is done).
If you do change the locks
Make sure you keep FULL details of everything, including (if appropriate) a diary giving details of the landlord’s unlawful access and copies of letters requesting him to stop.
In the third situation (and possibly also in the first situation) you should report the matter to the police and keep a copy of the report or incident number. If only to prove that it happened.
Tenancy deposit issues
Your landlord will usually want to charge for the cost of replacing the locks at the end of the tenancy. If you just changed the locks without permission and /or proper cause, this is something he is entitled to do.
Even if you were fully justified in changing the locks, in circumstances where it was changed without consent, it is likely that a tenancy deposit adjudicator would find for the landlord – as you were in breach of contract and tenants’ claims for trespass and harassment are not something they are authorised to consider
So in this situation, you should refuse consent to adjudication and say you will be making a claim through the courts. However, you could point out that if this is necessary you will also be making a claim for financial compensation for their harassment and trespass – this may encourage them to drop the claim!
Ivan says
October 18, 2016 at 12:10 PMTo Be fair I don’t think it’s a genderised argument, an older female landlord could easily make a young man feel uncomfortable but unable to act and vice versa, and any combination there of. A landlord, as the name implies has authority on the continued living arrangement of the tenant, such a position of power can be abused without any need for physical intimidation.
Tessa Shepperson says
October 18, 2016 at 12:32 PMTrue, but in practice it tends to be harassment by middle-aged men of their young female tenants. These are the only cases I am aware of anyway.
Ben has seen more of this type of thing and I think his experiences is also that it is mostly older man / young female harassment but I will ask him to comment.
Ivan says
October 19, 2016 at 11:24 AMI’m sure that is mostly the case, and predominantly the majority of such crimes will be as you said. Just worth noting that men are far less likely to report this type of behaviour.
My opinion is that the default position for the tenant should be to change the locks.
I don’t agree with the criminal damage element, as the locks are not themselves damaged by the removal of the barrel. (obviously my opinion is not case law)
I think a LL would be hard pressed to actually succeed in a deposit claim, assuming that the tenant provided the landlord with a working lock and the correct number of keys, I fail to see the loss.
And practically the only way a LL would know the lock was changed is if they tried to enter the property.
Gordon says
October 18, 2016 at 1:06 PMAs a landlord, I’d strongly prefer tenants not to change the locks, but if they did I’d need to see proof that the new locks meet the relevant British Standard to keep my insurance cover valid.
Lawcruncher says
October 18, 2016 at 4:40 PMI am having difficulty seeing how changing the locks can be criminal damage, whether a breach of an express covenant or not even if the tenant does a botched job. Does there not have to be some wanton destruction of property? De minimis must surely come into it. If it does not, then we have to ask what other things a tenant may do will amount to criminal damage. Does any alteration, however minor, such as putting up, or for that matter taking down, a shelf amount to criminal damage? Surely no one believes that a leaseholder with a 99 year lease cannot change the locks without the landlord’s consent. What applies to long leases must apply to short leases.
Changing locks is of course more talked about than taking down shelves and that is because it is about who has free access to the property. It would suit landlords if it were a crime.
As for the police, what I have read in legal forums and know personally has led me to believe that they are not prejudiced in favour of either landlords or tenants, but that they simply get it wrong every time. Whilst it may be too much to expect the police to know all the ins and outs of landlord and tenant law, they really ought not to be making on-the-spot decisions in ignorance of the law.
Ian says
October 18, 2016 at 5:57 PMWith most locks, if the old lock (or cylinder) is kept, putting it back on at the end of the tenancy, or on the day of an inspection is only a 5 minutes job.
As a landlord I would not even know a lock had been changed unless the tenant was not there at a agreed time when I was going round with trades people etc. However if I have costs because I have to break in due to a leak for example, the tenant can expect a large bill.
In a HMO it is very different as the landlord must be able to access ALL rooms at ALL times if there is an issue with the fire alarm etc, and has a duty to the rest of the tenants to be able to fix problems that effect them.
Gregory Peck says
October 18, 2016 at 9:40 PMIf a tenant has the right to the implied term of quiet enjoyment and is subject to interference from a landlord who simply cannot understand that concept, why is a tenant guilty of criminal damage. I work for the large advice charity, advising in this area and certainly wouldn’t tell tenants to just let the landlords in. The police just get it wrong and it’s wholly inappropriate for landlords to just let themselves in!
Ben Reeve-Lewis says
October 19, 2016 at 6:54 AM26 years as a London council TRO and this year doing TRO and advocacy work across 3 London boroughs and the #1 complaint of all time is landlords and agents letting themselves in without permission.
My advice to tenants experiencing this problem? always change the locks….in the full knowledge that they might be breaching the tenancy agreement. If the landlord has a problem with that then ground 12 is available to them, breach of contract but get ready for a counterclaim for quiet enjoyment if you use it.
I am absolutely rubbish at DIY but even I can change a Yale lock, I must have done hundreds down the years and you just slide the old cylinder back when you leave or give the new keys to the landlord and as Lawcruncher says there, a lease is a lease is a lease. Doesnt matter whether it is 9 months or 99 years. A freeholder doesnt complain when a long leaseholder changes the locks. Section 1 Law of Property Act 1925, a tenancy is a form of ownership of land, giving the tenant the right to exclude anyone they like from the property, including the landlord or their agent.
Down the years, whenever this question comes up on Landlord Law Blog you can guarantee it will get the most outraged comments. Accept it. Its a legal fact that has been around for decades, probably longer
Romain says
October 19, 2016 at 8:08 AMIt is equally important to explain to tenants that landlords do have permission to enter in specific circumstances, which are to the benefit of tenants.
Landlords do not have to ask specific permission again to enter in such circumstances and tenants have no right to be obtrusive (subject to landlords behaving reasonably).
petetong says
October 19, 2016 at 1:27 PMI remember a problem when a new tenant moved in, and a couple of days later , was disturbed in the middle of the night by the ex tenants friend entering at 4am in the morning completely drunk with a set of keys.
personally, I would change the locks myself if I was the tenant and then change back before I left. What loss has the landlord suffered?
Ben Reeve-Lewis says
October 21, 2016 at 2:25 PMRomain…and those specific circumstances are what exactly? that allows a landlord to ignore section 1 of the Law of Property Act?
Romain says
October 22, 2016 at 11:42 AMBen I would have hoped that you knew that a residential short lease includes by law terms granting the landlord a right of entry to inspect the property’s condition and to carry out repairs, and that the lease may include additional terms.
None of which ignore the Law of Property Act.
And, no, this does not breach quiet enjoyment, etc.
Audrey Wright says
October 22, 2016 at 11:28 AMAs a tenant, I would ask every landlord to change my locks upon move in and only keep a key for themselves and give one for me (plus any other tenant in the property). I mean this is basic home security.
If landlords are being reasonable and don’t push the limits to their authority, there is no need for tenants to be paranoid about an unannounced entry.
However, I would advise everybody that has had one case of a landlord / letting agent / service provider entering unauthorised, unannounced and uninvited to change the locks ASAP and keep all the keys to themselves.
While it may not exactly legal, the landlord will have a hellish time to win a court case, especially if you can prove that they entered without prior notice and consent. Also, if you provide reasonable access for inspections, repairs, etc, there is not really a reason for the landlord to go through all the hassle of legal combat.
So all, in all, if a tenant is legitimately worried about access, just change the locks. You might have to pay for returning the original ones at the end of the tenancy, but it’s a small price for feeling secure in your own home.
Yes, there is ultimately the risk of an accident occurring at the property and the landlord may be prevented to use their emergency access rights to minimise the damage (e.g. flood / fire / etc ). In that case, the tenant will likely have to pay for all the restoration works, but this is a risk tenants must take in order to ensure complete control over the front door
Tessa Shepperson says
October 22, 2016 at 12:37 PMWe have had the argument about landlords access rights before on this blog and the same old arguments crop up time and time again.
Yes, the landlord has (for example) the right under s11(6) of the Landlord & Tenant Act 1985 to enter to do inspections. But that does NOT mean he (or she) can go in even if the tenant says no.
If the tenant says no, that puts the tenant in breach of contract. The landlord may be able to use this as a basis for a claim for possession and maybe a claim for compensation (if, for example, he was unable to do repairs and whatever-it-was got worse and more expensive to repair).
So, tenants – it’s not a good idea to refuse access to your landlord when it is justified.
However, your landlord CAN’T in law, use his keys to go in anyway. Thats trespass and harassment and is a criminal offence and a civil wrong.
Think about it – if the landlord could go in anyway, no landlords would ever be able to get a ‘gas injunction’ (an injunction ordering the tenant to let the landlord in to do the gas safety inspection) – the Judge would just say ‘Why don’t you use your keys to gain entry?’.
Even if tenancy agreement clauses and statutes like s11(6)LTA85 DID authorise the landlord to go in if the tenant has said no – it would be a very unwise thing to do.
You would have a hostile tenant – one who might accuse you of theft or something equally obnoxious.
So don’t do it.
The ONLY times people can enter property against the wishes of the owner in law are when they have some sort of warrant – like police with a search warrant.
Ben Reeve-Lewis says
October 22, 2016 at 2:43 PM@Romain I was going to answer but Tessa got there before me with the same point. Section 11 is standard but it doesn’t mean that the landlord can go in if the tenant doesn’t allow. Back to a tenancy as a form of ownership of land again and heading once more for the 40 or 50 comments the last time this issue came up.
I can only presume that the endlessly emotive responses to this issue by landlords to do with this point is to do with control and ownership.
As one incredulous landlord said to me when I was explaining the eviction procedure to him “You arent seriously trying to tell me that there are laws that tell a man what he can and cant do with his own property? They’d laugh you out of court man”.
That was 10 years ago and the attitude still persists
TG says
October 25, 2016 at 8:39 AMAnd where does the licence requirements for at least 6 monthly inspections stand in all this?
Reasonable tenants will agree access but there are always exceptions
Tessa Shepperson says
October 25, 2016 at 8:45 AMIf you need to inspect to retain your HMO license and the tenant won’t let you in – again the answers are to threaten (and if the threats don’t work, bring) claims for an injunction and/or eviction.
Steve Hards says
October 25, 2016 at 1:39 PMHas anyone been watching the comedy ‘Josh’? ( https://en.wikipedia.org/wiki/Josh_(TV_series) ) It makes me cringe each time the landlord – excellently played by Jack Dee – walks into the friends’ flat unannounced, uninvited and usually unwelcome. Although many of the jokes hinge on the fact that he does it, has no one told the writers (never mind the characters!) that it is illegal? It must be giving the wrong impression of landlords’ rights to many people who watch it.
Tessa Shepperson says
October 25, 2016 at 1:44 PMSounds illegal to me, but it could be put down to artistic license. But I agree, it will give a wrong impression (I have never watched it though).
Ben Reeve-Lewis says
October 26, 2016 at 6:54 AMI’m older so I remember Rigsby in Rising Damp doing exactly the same thing.
back about 1995 I recall a Jamaican woman coming in to complain that she had just gotten out of the bath naked to find a man from the lettings agency standing in her hall casually sifting through her post. She was terrified, her mum was fuming. The three of us marched over the road to read the man the riot act in front of his customers to maximise impact. I made him apologise in the shop, with the aim of giving the tenant a bit of confidence back.
Her mum went one stage further and smacked him in the mouth. I never received another complaint about that company and I’ll doubt he has ever let himself in again.