Here is a question to the blog clinic from Jon whose son is a tenant.
My son has an assured tenancy agreement and he tells me now after 6 months that the agent regularly sends potential buyers to view the property.
On one occasion he forgot someone was coming was in bed and they actually opened the door themselves as he did not answer. I investigated and find the agent has put a clause in the contract that says
2.63(a) At any time during the tenancy, upon a minimum of 24 hours prior written notification, to permit the premises to be viewed during working hours and at other reasonable times including at weekends by prospective purchasers who are authorised to do so by the Landlord or his appointed Agent. Except where mutually agreed otherwise with the Tenant, the Landlord or his authorised Agent or representative will accompany these viewing appointments.
Is this allowed ? is this not in direct contravention of the housing act that says the tenant must be allowed to enjoy quiet and peaceful enjoyment?
Answer
That is actually quite a common type of clause as landlords and agents will need to visit the property from time to time – to carry out inspections, get things like the annual gas certificate done, and (as in this case) show round potential tenants or buyers of the property.
However they must give at least 24 hours written notice and the tenant has the right to object to any specific visit.
The agents also need to be reasonable about it. If they are sending round numerous potential buyers and letting themselves into the property while tenants are in bed – that sounds like interference with the tenants ‘covenant of quiet enjoyment’ to me.
The ‘covenant of quiet enjoyment’ by the way is the right of all tenants to live in the property without interference from the landlord.
What can be done?
I think your son should write to the agents and point out that this is his home, and ask that the number of visits be reduced and that each visit be specifically agreed with him in advance.
If this is not done then he will have the right to complain to the agents Property Redress Scheme.
You can also complain to your Local Authority. This used to be the sort of thing that tenancy relations officers would deal with but they are a dying breed and most Local Authorities will be too busy and understaffed to deal with relatively minor issues like this.
Changing locks
Some tenants will routinely change the locks when they move in so agents and landlords are unable to enter unless the tenants let them in.
You need to be careful about doing this though as it may be in breach of the terms of your tenancy agreement meaning that you could have the cost of replacement locks deducted from the deposit. Plus it will be more expensive if you lose your keys as the landlord or agent will not have a spare set available to get copies cut from.
However, in situations where agents or landlords are constantly letting themselves into the property (which does happen), it is probably the only answer. Particularly if the person letting themselves in is the landlord – as at present there is no mandatory redress scheme service for landlords.
Ben Reeve-Lewis says
November 14, 2019 at 8:43 AMAs one of the few surviving TROs I can say I dont know a TRO who doesnt have a small kit of tools and spare locks for just such an event. , Breach of tenancy Ground 12? OK but try enforcing and facing a counterclaim for trespass..
Honestly, would any home owner with a mortgage tolerate someone from Barclays bank letting themselves in unannounced? Section 1 Law of Property Act 1925, a tenancy is a form of ownership of land
Jon says
November 14, 2019 at 10:36 AMTo be “fair” to the agent, it does read as though Jon had been notified about the visit but had forgotten and was still in bed!
Lawcruncher says
November 16, 2019 at 10:46 AMThis question comes up a lot. The fundamental point is that if the terms of a tenancy allow a landlord to enter then the tenant has given the landlord a licence to enter. If the landlord enters in accordance with the terms of the licence (that is he enters for one of the purposes specified after giving any required notice and waiting for the notice period to expire) he cannot be trespassing because the essence of trespass on land is to enter without permission. The tenant cannot withdraw the licence he gave when he agreed the terms of the tenancy anymore than he can unilaterally declare he is not bound by any other term of the tenancy.
As against the basic position none of the arguments advanced based on (a) a tenancy being the exclusive right to occupation, (b) the landlord’s covenant for quiet enjoyment, or (c) derogation from grant, are sufficient to override the licence (or at least one granted in reasonable terms) because none of them are absolute. However, it is implicit that the landlord acts reasonably and he must also refrain from using force.
Where the licence is solely for the landlord’s benefit, as where the inspection is by prospective purchasers or tenants, it is not easy to say what is reasonable. For the right to be useful to the landlord he needs to be able to have access when he has someone who expresses an interest, but there has to come a point where constant inspections are unreasonable and can be resisted relying on at least one of (a), (b) or (c). It comes down to a question of degree.
Ben Reeve-Lewis says
November 24, 2019 at 10:14 AMNot sure I get your point there.
I do see that a clause allowing entry would mean that a landlord would not necessarily be trespassing if they were to enter without permission but I dont see beyond this technical argument, what it would do for things like quiet enjoyment or exclusive possession, the latter of which being one of the 3 hallmarks of a tenancy under Street v. Mountford.
Are you suggesting that a landlord could add a clause allowing for entry under specified terms, regardless of exclusive possession whilst still leaving the tenancy in place, without converting it into a license? This would seem to make a mockery of the very notion of exclusive possession if it can so easily be contracted out of.
In Street v. Mountford this was indeed one of the points at issue, a contractual right of access, which the court held to be a sham aimed solely at reducing Ms Mountford’s security of tenure.
Effectively what you are suggesting is that a landlord could add a clause requiring access that in plain English would be saying “I reserve the right to enter to do XY or Z and whilst this would not affect your tenancy, if I exercise that right of entry I would not be a trespasser because you have given me licence to enter, even if you refuse to let me in when I turn up”
This also steers dangerously close to s6 of the Criminal Law Act prohibiting the use of force to enter property if there is someone on the premises objecting to the force being used, when the landlord would be arguing they had a licence to enter.
These concepts seem at odds with each other.
Bob says
November 19, 2019 at 10:15 AMIt comes down to my exclusive right of occupation.
Lawcruncher says
November 21, 2019 at 11:46 PMThe exclusive right of occupation is not absolute.
Bob says
November 22, 2019 at 3:16 PMIt is in practice