We had the White Paper published last week, and I see that there are new proposals for grounds for possession. However, I wonder whether there should also be a new ground for unreasonably refusing a landlord’s inspection?
Now I know many tenants will object to this as they think inspections are just landlords being nosey parkers. And many landlords don’t want the hassle of inspections and find them embarrassing and so often neglect them. However, they are very important.
Consider the following situations.
Refusal to allow gas inspections
This is of course, ‘the big one’, and most court proceedings about refusal to allow access today are in the context of tenants unreasonably refusing to allow gas safety inspections. Generally, the proceedings are for ‘gas injunctions’ and are brought by social landlords.
However, private landlords also have this problem, and it is a very worrying one. Gas can, after all, be very dangerous. It is possible for explosions to damage not only the rented property but neighbouring properties too.
It might help to persuade reluctant tenants if the landlord could say that if they refuse they will be giving the landlord a ground for possession.
Criminal tenants
These are probably more common than many people realise. They will obviously not want landlords to carry out inspections.
If a landlord has criminal tenants, for example, if they are converting his property to a cannabis farm or are carrying out other illegal activities there, landlords clearly should be wary about entering – criminal tenants have been known to ‘booby trap’ properties to keep out rival gangs. Suspicions should be reported to the police.
The police, however, are concerned about catching criminals. They are not concerned with helping landlords recover possession of their property.
Although there is a possession ground, based on criminal behaviour, this specifically refers to convicted criminals. What are landlords supposed to do in the meantime? A ground allowing them possession based on failure to allow inspections could be a useful option for landlords needing to recover possession quickly in this situation.
Illegal HMOs
The government and local authorities are quite rightly clamping down on illegal HMOs – but often, these are created by the tenants, not by the landlords. For example, by tenants taking in unauthorized lodgers.
For a landlord to be able to deal with an unauthorised HMO he needs to be able to find out about it first, which means he will need to inspect the property regularly.
Tenants have the right to exclude landlords from the property by virtue of their covenant of quiet enjoyment – which is the rule which says they can keep everyone including the landlord from entering without their permission.
If landlords had a legal right to carry out inspections enforceable by a ground for possession, then this will help them deal with this problem.
Insurance issues
Most landlord insurance policies today will have a condition requiring landlords to carry out property inspections not less than once every six months.
If landlords are unable to do this due to tenant obstruction, then this could invalidate their insurance. Which could have serious consequences for them.
And generally
It is important that landlords are able to carry out regular inspections of rented properties – not to spy on their tenants (!) but to check its condition (so they can carry out any necessary repair works) and make sure that all is well. And that there is no illegal activity going on.
I suggest it would be helpful for landlords in the management of this duty if it could be backed up by a ground for possession of unreasonably refusing the landlord access for inspections. A discretionary ground would be sufficient and would help give landlords the necessary authority when requesting access.
No doubt there are points I have missed on this topic, so if you have any thoughts, please add your comments below.
Yes as without S21 the landlord can’t manage the property without inspections to get edvidance for evictions for property damage.
The 1st problem tenant I can’t removed due to no longer having S21 will result me in selling the property so I can remove them.
This is a very good point. Gas and electrical inspections should be enforceable- and I might add security and alarm systems including heat and smoke sensors. Whether this should extend to a ground for possession is debatable, perhaps in the first instance. Repeated refusals could be justified.
I do not think that a further discretionary ground to this effect is necessary. If the landlord has had the good sense to reserve contractual inspection rights, then they already have access to a discretionary ground for general tenancy breaches should the tenant unreasonably refuse access. A specific ground would not really add anything.
In order to be see any use, the new ground would need to be mandatory so as to improve on the existing ground. But the landlord would still need to demonstrate that the inspection requests were themselves reasonable and/or that the tenant’s refusal was unreasonable, so there would still be the issue of needing to persuade the judge to exercise a discretion in the landlord’s favour which has generally dissuaded claims on discretionary grounds. Obviously a mandatory ground without some sort of ‘reasonable’ filter is just asking for misuse.
You could, I suppose, have some sort of statutory inspection regime wherein the landlord is entitled and expected to inspect the property each year (say) in order to conduct gas checks etc. and it could be that upon service of some appropriate notice, the tenant is required to comply and it will be deemed unreasonable and a mandatory ground for possession if they do not. I doubt that this would be popular with either landlords or tenants but it is a thought.
I think though that injunction proceedings provide an adequate remedy for refusal of entry. As you say, they are rather routinely obtained by social landlords (often without notice) for gas checks and there is no reason why a private landlord could not obtain one.
As a principle, I agree that if the contract provides for inspections, that should be sufficient.
However in the present climate, landlords are held to the letter of the law and the contract, whilst seemingly tenants are able to get away with rent arrears, property damage etc with impunity –irrespective of the law or contract they have willing signed up to.
Given the impact for the landlords – fines for no GSC, significant property damage etc, in my view there should definitely be a mandatory non inspection ground. I would further venture that adding a ‘reasonableness’ provision as suggested gives room for argument or a get out clause to tenants, which helps no-one other than delay getting an inspection done.
Whilst this in itself may seem unreasonable, from my own experience in agreeing legal contracts, lawyers can argue for weeks or more over what is deemed reasonable, so it’s best to cut out all opinion-based argument in favour of a non-arguable mandatory requirement. If a tenant doesn’t like the provision, don’t sign up. Having to seek an injunction is just too onerous and costly a remedy for a landlord.
The property is after all the landlord’s asset – usually worth hundreds of thousands of £££. Who in their right mind is going to sign that over to a tenant without the ability to see periodically how it is being looked after, and be denied the ability to comply with their own duties towards the tenant?
The worrying thing is that I suspect the government in its misguided wisdom will not ‘hear’ the landlord’s viewpoint.
I despair over the proposed new reform bill, but that is a rant for another day…
@Judy M
Banks lend 100s of thousands against an asset they don’t plan to routinely inspect every few months. The fact of the matter is a landlord inspection is an unwelcome intrusion that many tenants are not comfortable with, though they might not object to an impartial professional such as a surveyor and sensibly would likely be happy to allow a properly qualified gas engineer in to do what’s necessary, or any other qualified tradesman for other work.
“tenants are able to get away with rent arrears, property damage etc with impunity” – this is only true if you can’t successfully sue and recover arrears or damages, but isn’t that simply a result of the risk of being in the lending business, with property being lent rather than money?. If you want an investment with no risk you could always try Govt bonds.
@Ian
“The 1st problem tenant I can’t remove due to no longer having S21 will result in me selling the property so I can remove them.”
You’d have trouble selling with them in situ if they were indeed a “problem tenant” so I don’t really understand the comment, unless you’re referring to the proposed new S8 rules. But selling would presumably land you with a huge CGT bill, so wouldn’t you simply be better off taking the hit and using other S8 grounds such as arrears? I see no sense in using S21 now to sell pre-emptively if they have not so far been a problem. I hear this “threat” all the time, but it seems empty.
The “threat” is already happening;
https://landlordlawblog.co.uk/2022/06/24/landlord-law-newsround-248/
‘Supply is worsening in the rental sector, with newly available rental properties down by 24 per cent now compared to a year ago.’