Commercial landlords often face the frustration of trying to arrange viewings of premises with unwilling tenants. This article sets out what steps you can do to gain access to commercial premises.
Tenants right to quiet enjoyment
When you rented out the property to the tenant you would have committed to abide by a covenant allowing the tenant quiet enjoyment of the property. This is implied in to every tenancy but frequently it is set out in writing and typically there will be other express covenants on you as landlord to notify the tenant before gaining access.
Practical steps to take to gain access
I 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.
I would recommend that unless you need to gain access for an emergency situation that you send two further notices to your tenants setting out the following:
1. State day and time you 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 the tenant 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. Refer to lease terms which may state for example that the tenant must allow landlord access upon giving reasonable notice.
4. 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 such payments. Arguably they will be chargeable anyway if it can be shown that the charges incurred are as a result of breach of the lease terms by the tenant.
5. Repeat steps 1 to 3 above.
6. Consider serving a formal notice to tenant seeking possession of the premises on the basis that the lease is forfeited due to tenant’s breach of the lease. The notice you will need to serve is commonly referred to as a s.146 Notice (L &T ACT 1925). You will state in the notice a reasonable period for the tenant to allow you to gain access and if they still refuse you will be able to apply for both an injunction requiring you to gain immediate access as well as possession of the property as lets face it you are unlikely to want the tenant to remain in occupation at this stage.
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.
We would not recommend the service of formal notices such as s146 notices unless you are legally trained to do so. There are many pitfalls for the unwary landlord particularly as regards the forfeiture process using s146 LPA notices.
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 as well as a claim for associated legal costs. Just because your tenant is in breach of a covenant that requires him to give access to the Landlord does not give the Landlord the right to force an entry against the wishes of the tenant and doing so may involve a criminal offence.
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 £3,000. 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.
For more information about this topic please contact me, Nicola Davies Property, Litigation Solicitor
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