Gaining access to residential property by landlords for the purpose of, say, trying to arrange viewings of premises with unwilling tenants is often frustrating. We have prepared a handy guide for landlords on what steps can be taken to enter the property when the tenants refuses access.
When can tenants refuse entry to landlords?
Before we go on to set out our guide, lets review why tenants can refuse entry and what can happen if you ignore their rights and go in anyway. (For information about gaining access to commercial premises follow the link).
Tenant’s right to quiet enjoyment
When you rent out the whole of a property you will have surrendered your rights to possession and committed to abide by a covenant allowing the tenant quiet enjoyment whether or not it says so in the tenancy agreement. There is an implied right in assured and assured shorthold tenancy agreements, or Rent Act tenancies that tenants are entitled to quiet enjoyment. Typically the agreement will have express covenants on you as landlord to notify the tenant before gaining access. Only a court order/injunction allowing access to the property, can overrule the quiet enjoyment covenant. The right can transfer down to sub tenants resulting in both the original tenant and the property owner seeking permission from the occupying tenant to gain access.
If you have a lodger occupying under a licence then the rules are likely to be slightly different as landlords would have reserved their rights to move the tenant into an alternative room or to gain access and as a result have not parted with possession. Whether the rights retained by the owner prevent access would be a question of fact and each case would need to be looked at in order to establish if a tenancy situation has been created. It is safe to say however that occupation of a hotel room or a care home is more likely than not to be on the basis of a licence.
Entering without tenants consent
Access cannot be obtained by physical force or without the consent of the tenant, as by doing so may result in the landlord or their agents guilty of the criminal offence of harassment set out in the Protection From Eviction Act 1977. Section 1(3) of this Act states that landlords or their agents will be guilty of an offence if he/she does an act that likely interferes with the peace or comfort of the residential occupier or a member of the household. If you are found guilty of this offence you will be liable on conviction to a fine or to imprisonment for up to 6 months, or both.
The landlord or agent may also be guilty of committing a civil trespass or nuisance. Tenants could seek damages that flow naturally from the breach such as for inconvenience, alleged damage caused to their property and for the cost of any court proceedings. In some cases tenants may also be able to claim mental distress and in rare cases exemplary damages where landlords have made a profit by performing the trespass. The tenants could also obtain an injunction against the trespasser preventing them from continuing to enter their property.
Our Guide to Practical Steps for gaining access to rented properties
We shall assume that you have already sent a letter to the tenants requesting entry and you have either turned up at the property and they have not been there or told you that you cannot gain access. Unless you need to gain access for an emergency situation (see separate article on what classes an emergency here) then we would suggest that you send two further notices to your tenants setting out the following:
- 1. State a reasonable time of the day that you or your agents will be visiting the property and the reason behind it i.e. routine inspection; intended repair work, gas/electric inspection. Consider stating that if for any good reason the date and time is not convenient to the tenant then can they provide dates and times that are convenient.
- 2. If you are sending contractors around state who they are, their company details and what work they intend to do.
- 3. Unless it is an emergency situation, you must give at least 24 hours’ notice of your visit (s.11(6)of the L & T Act 1985). It is not sufficient to phone the tenants just before you are about to visit.
- 4. Refer to lease terms which may state for example that the tenant must allow landlord access upon giving reasonable notice.
- 5. Make clear that the tenant will be liable for any costs related to failed appointments e.g contractors call out fee and state what these charges are going to be. Make reference to terms of the lease that refer to the tenant being liable for payments incurred as a result of enforcing compliance with lease terms.
- 6. Repeat points 1 and 2 above;
- 7. State if appropriate in your letter that tenant will be liable for any deterioration in the property due to the landlord being unable to carry out repairs and that you the Landlord will not be liable for any injuries incurred as a result of a damaged item. State that tenant is now liable for costs related to the failed appointments.
- 8. Inform tenant that you will have to apply to court for an injunction to gain access together with a claim for tenant to pay associated legal costs. Consider notifying tenant that you will serve them with a notice to vacate the property pursuant to schedule 2 of section.8 of the Housing Act 1988 relying upon grounds 12 and or 13 (based on their breach of the covenant to permit access).
- 9. Contact the local council if there is a health and safety issue as they can appoint someone to contact your tenants directly.
TIP – send the next two letters via special delivery post and via email to the tenant allowing at least 7 days notice. A few days before your visit, call the tenant and send a second email reminding them of your visit.
The Last Resort
If after following the above steps tenant does not allow you to gain access then you will have to apply the court to obtain an injunction which will force the tenant to allow you into the Property. An injunction is a last resort as save in unusually urgent cases it can take several weeks to obtain and the Landlord can expect legal costs likely to be in excess of £2,000. It is likely that a Landlord will obtain judgment for the tenant to pay associated costs however often tenants cannot pay this or the court award less than the actual costs incurred leaving the landlord to foot the bill. Often we find it quicker and cheaper to evict a tenant under breach of lease terms than to obtain an injunction as lets face it if you have to incur such large sums to access the property you are unlikely to want the tenants to remain in possession.
For more information about this topic please contact me, Nicola Davies Property Litigation Solicitor.
Visit our Property Litigation website for more information on the services we provide.