Can landlords enter their rented property even if their tenants don’t want them to?

Knock KnockThe question of landlord access to rented property is a difficult one.

Landlords will want, and indeed need, to visit their rented properties from time to time and carry out inspections. For example

  • They are required by law to arrange for gas safety checks and checks of the electrical wiring
  • They need to check that the property is in good condition and, if there are issues, arrange for repair or other works to be done.  Landlords have statutory obligations to keep the property in repair and fit for human habitation.
  • They need to make sure that the property is not being used for illegal purposes. For example, if the property is being used for growing cannabis – the worst case scenario being a cannabis farm – which can cause severe damage to the property
  • They need to ensure that no unauthorised occupiers are living at the property – as this could unwittingly put landlords in breach of the HMO licensing rules, and
  • Many insurance policies now require landlords to carry out regular property inspections, normally not less than every six months.

Tenants, on the other hand, are often hostile to these visits

  • They may dislike the landlord and object to him coming into their home
  • They may have someone staying at the property they do not want the landlord to know about
  • They may have damaged the property and want to conceal this from the landlord
  • They may be carrying on criminal activities and don’t want anyone coming in.
  • Or even if they do not object in principle to the visit, they may want to be present (which is entirely reasonable) but can’t take time off work

So what is the legal position?

There is a conflict of rules.

Landlords rights

Landlords have a legal right to inspect the property, which is laid down in law. For example:

  • The Landlord and Tenant Act 1985 provides in section 11(6) that it is an implied term in tenancy agreements that landlords shall have access to view the condition and state of repair of the property upon giving 24 hours notice
  • The Housing Act 1988 then provides in section 16 that it is an implied term in every tenancy agreement that the landlord shall have access to carry out repairs
  • The tenancy agreement will also normally provide that the landlord will have access (which should be on giving not less than 24 hours notice in writing) to carry out inspections and show round prospective new tenants or purchasers.

Tenants rights

Tenants, on the other hand, have what is called the ‘covenant of quiet enjoyment’.

This right is fundamental to all tenancies and provides that tenants can prevent anyone, including (or maybe particularly) the landlord, from entering without their consent. Apart from people with special authority, such as police with a search warrant.

There is also an overriding right for landlords to enter ‘in case of emergency’. However this must be a real emergency, such as a serious fire, flood, or the need to rescue someone trapped in the property who is in danger, etc.

The fact, for example, that there ‘might’ be a gas issue simply because the tenants have not allowed a gas safety inspection will not be sufficient!

Indeed if anyone smells gas, they should not enter the property at all but contact the National Gas Emergency Number on 0800 111 999. They will advise and if necessary, the emergency services have a statutory right of access.

So, in the vast majority of cases, tenants can rely on the ‘covenant of quiet enjoyment’ to keep everyone out.

Resolving the conflict

So how do we deal with this conflict between the rights of landlords and tenants?

Most lawyers agree that if there is a conflict, the tenant’s rights under the covenant of quiet enjoyment will take priority.

So at any one time, the tenant can forbid the landlord to enter the property.

If the landlord goes against the tenant’s wishes and enters anyway, perhaps using his keys, then this will be trespass and harassment, which is both a criminal offence and a breach of the tenant’s rights.

This will, in serious cases, both allow the tenant to sue the landlord for compensation and apply for an injunction forbidding the landlord to do this again.

Landlords legal rights where permission is refused

However, this does not mean that the landlord’s rights don’t mean anything. If the landlord is seeking access for a lawful purpose, such as carrying out the gas safety inspection, then if the tenant persists in refusing access, this will put the tenant in breach of his tenancy agreement.

Although the landlord cannot enter without the tenant’s permission, he can enforce his rights through the courts, for example, by applying for an injunction.

Gas injunctions

The most common example of this is where tenants refuse access for the annual gas safety inspection. Landlords are required to do this by law, the reason being that defective gas appliances can be very dangerous – not just for tenants but also for neighbouring properties.

So if the landlord applies to the court for what is known as a ‘gas injunction’ the Judge will invariably grant this – and will probably also order the tenant to pay his landlord’s legal costs of doing this.

Eviction

Note also that if the tenant persistently refuses to allow access, this may well prompt landlords to consider eviction.

This is reasonable, as landlords cannot carry out their legal obligations if they are permanently prevented from inspecting the property.

Rent repayment orders

Finally, let’s take a quick look at Rent Repayment orders. These are most commonly used by tenants where landlords have failed to obtain an HMO or selective license, where the property is licensable.

However, what is less well-known is that they can also be used:

  • where the landlord has either evicted the tenants illegally or has been guilty of harassment under the Protection from Eviction Act 1977, or
  • Where the landlord has used violence in securing entry to the property under the Criminal Law Act 1977.

See the video with barrister Brooke Lyne here.

If, on the other hand, tenants are unreasonably refusing access to their landlord for perfectly proper inspection visits, this can reduce any damages they would otherwise be entitled to where they are bridging a claim for breach of the licensing rules.

And finally

Where parties are behaving reasonably and develop a working relationship, there should not be a problem.

  • If a particular inspection appointment is inconvenient for a tenant it he is perfectly within his rights to ask for a different appointment date and time
  • However, a tenant should not permanently refuse access to their landlord.  This will, long term, entitle the landlord to either obtain an injunction or to bring proceedings for possession.

Further help

Landlords – if you are experiencing problems gaining access for inspections, our Property Access Kit (which contains barrister drafted forms for obtaining a gas injunction) can help.

Tenants – if your landlord is constantly entering your property without your permission, you can buy a guide with draft letters here.  See also here.

The post Can landlords enter their rented property even if their tenants don’t want them to? appeared first on The Landlord Law Blog.

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