Letting Agents access to property without permission?

[caroli]

Hi

I was wondering whether anyone can help me as I am unable to contact my local CAB as the power is down in Dartford at the moment.

A couple of months ago I called my letting agent to inform them I would not be renewing my lease. I asked if they wanted it in writing and they said no it was ok. The next day they put a sign up outside the apartments to let.

I looked in my contract and it said I had to make the property ready for viewing 6 weeks prior to the end of the lease and also the letting agent will provide me with 24 hours notice of any access that they required.

I was away last Thursday returning on the Sunday and I found that some property had been moved and I thought I had been burgled. First of all I put it down to me loosing my marbles but yesterday my landlord called me to say that the letting agents had found new tenants. I was a little confused and questioned how have they viewed the property? I spoke with the letting agents this morning and they said they did let someone view it on Friday!!! they said they were trying to contact me but had the wrong number despite me advising them 4 months ago of the change in number and they said they sent me a letter but posted it through the wrong door!!!

Where do I stand regarding this? Surely they are in breach of contract!? Is there anything I can do?

When I tried to tell the agents today they were in breach they refused to admit it and even accused me of being in breach because I never sent in a written notice of termination even though they said I didn’t need to!!

HELP!!!!

[Paul_f]

Hi

I was wondering whether anyone can help me as I am unable to contact my local CAB as the power is down in Dartford at the moment.

A couple of months ago I called my letting agent to inform them I would not be renewing my lease. I asked if they wanted it in writing and they said no it was ok. The next day they put a sign up outside the apartments to let.

I looked in my contract and it said I had to make the property ready for viewing 6 weeks prior to the end of the lease and also the letting agent will provide me with 24 hours notice of any access that they required. Your agent cannot enforce this and you are within your rights to refuse entry to the agent or any prospective tenant/purchaser etc. The 24 hours notice is a minimum and MUST be in writing, unless you agree to waive this on each occasion.

I was away last Thursday returning on the Sunday and I found that some property had been moved and I thought I had been burgled. First of all I put it down to me loosing my marbles but yesterday my landlord called me to say that the letting agents had found new tenants. I was a little confused and questioned how have they viewed the property? I spoke with the letting agents this morning and they said they did let someone view it on Friday!!! they said they were trying to contact me but had the wrong number despite me advising them 4 months ago of the change in number and they said they sent me a letter but posted it through the wrong door!!! Agent and landlord in deep do-do as they are trespassing

Where do I stand regarding this? Surely they are in breach of contract!? Is there anything I can do? You could change the locks if you like and charge it to the landlord by deducting it from the rent, but do let them know and explain why.

When I tried to tell the agents today they were in breach they refused to admit it and even accused me of being in breach because I never sent in a written notice of termination even though they said I didn’t need to!! There's is absolutely no requirement to serve notice to end the fixed term of the tenancy, only if it were periodic

HELP!!!!There are plenty of threads on this very subject so you might want to search for them using the search facility?

[dominic]

If you really want to put the cat amongst the pigeons, you can inform your agent that if such behaviour continues you will have no option but to report him to police, as the agency (and the individuals responsible) have committed a criminal offence (harassment) contrary to the Housing Act 1988 which carries a custodial sentence if convicted.

A police investigation into the practices of the agency should focus their attention some what.

[caroli]

thankyou for getting back to me. i really appreciate it.

i spoke with CAB and they have gave me contradicting advise. they are saying that there is nothing i can do as there was no damage to my property! They also said that this is not a criminal matter its a civil matter.

i have tried to speak to a solicitor but as of yet i am unable to speak to one.

i dont want to ring the estate agents up and falsely accuse them and risk losing my bond next month because they are discruntled! although if they try that my landlord has told me to tell them that he is fine with the property and they are to give me my full bond back....

Would it be in my interest to call the estate agents up explaning that i have seeked legal advise and i have been informed that they have tresspassed and it is a criminal offence and that i will be looking at calling the police unless they offer me some kind of apology/olive branch (not paying my last months rent for example)

[jeffrey]

CAB is talking nonsense. Harassment is a clear criminal offence; buth the PEA 1977 and the Housing Act 1988 make that very clear.

[caroli]

Thanks :-)

just spoke to letting agents again. told them i wanted to speak to senior management or a director. none are available. surprise surprise.

they said they were very sorry and basically admitted they were wrong but when asked what they were going to do about it, they replied by saying sorry!! when i mentioned they illegally entered my property and i was considering calling the police, they just replied saying they are legally allowed to enter the property as i could of trashed it!! They really havent got a clue!

i dont want to start a massive legal case against them especially seen as i am leaving next month, but i dont want them to get away with it.

the man who i spoke to (who i believe is just an agent) said he will get a director to send me a letter of apology.

still not happy though. so i think i am going to send a letter of complaint and copy in the council, local paper and any obudsmen agencys.

does anyone else have any other ideas of what i should do?!?!

[jta]

Would it be in my interest to call the estate agents up explaning that i have seeked legal advise and i have been informed that they have tresspassed and it is a criminal offence and that i will be looking at calling the police unless they offer me some kind of apology/olive branch (not paying my last months rent for example)

That would hardly be fair to your LL would it, he's the one that would lose the rent, Your beef is with the LA.

[agent46]

CAB is talking nonsense. Harassment is a clear criminal offence; buth the PEA 1977 and the Housing Act 1988 make that very clear.

Sigh. Jeffrey, you are talking nonsense.

It is only a criminal offence if the actus reus (the entry to property etc) is combined with mens rea (the intention to cause T to give up possession or forgo some right or remedy or if he knew or ought to have known that his actions would cause the same).

We only had this very discussion couple of days ago here: http://www.landlordzone.co.uk/forums/showthread.php?p=147613#post147613 In any case, it is an issue that periodically recurs on LLZ and when it does, everyone almost always omits the requirement for mens rea, and then I have to post a correction (which is quite annoying).

[jeffrey]

(Sigh) We're both right, as you know.
It is a criminal offence for L to harass T.
However, L cannot be convicted of it unless:
a. prosecuted for it;
b. proven to have committed actus reus; and
c. found to have necessary mens rea.

[agent46]

(Sigh) We're both right, as you know.
It is a criminal offence for L to harass T.

The offence of harassment according to the provisions of the PEA 1977 requires an intention on the part of the harasser to cause T to give up possession etc (the mens rea). If that mens rea is not present, then no offence (well at least under the PEA 1977) has been committed.

Therefore, it is not enough to just look at the actions of the landlord/agent in isolation; if you omit to mention or consider intention, you cannot be "right", as you claim, because an essential element of the offence is missing. It would be a bit like presenting someone with a raw mixture of egg, water and sugar (but no flour) and attempting to pass it off as a cake.

There is also the offence of harassment contrary to the Protection from Harassment Act 1997 s.1, but that requires both a course of conduct (the actus reus) and an intention to cause fear alarm or distress to another person or for the accused to have known or ought to have known their conduct would cause the same (the mens rea). However, the PHA offence would not be made out by conducting a single viewing (as there would be no "course of conduct"), and even if there had been more than one viewing, then it would be difficult for the Crown to show that viewings pursuant (presumably) to a contractual term would be intended to cause (or be known to cause) fear alarm or distress. Even if the Crown could prove those matters, by s.1(3) of the same Act, it is a defence for an accused to show that the course of conduct was, in the particular circumstances, reasonable (at the most, the accused would only need to prove this defence on the balance of probabilities, and may in fact only need to show some evidence in order to raise the defence).



However, L cannot be convicted of it unless:
a. prosecuted for it;
b. proven to have committed actus reus; and
c. found to have necessary mens rea.


Those are just trite statements and merely reiterate the point I was making. However, you omitted (c) (mens rea) from your previous post.



So, "Sigh" right back at ya.

Stop trying to put up smokescreens! :D

[johnboy]

So the upshot is that although a L/L should not let himself into a property without permission if he did it is very unlikely he will find himself in court. That will please a lot of dodgy landlords and agents.

[mind the gap]

So, "Sigh" right back at ya.

Stop trying to put up smokescreens! :D

Is Jeffrey lighting a bonfire?

[agent46]

So the upshot is that although a L/L should not let himself into a property without permission if he did it is very unlikely he will find himself in court. That will please a lot of dodgy landlords and agents.

It's not quite as simple as that.

If the tenancy agreement is silent on the issue of viewings, then if the LL/LA enters without permission, he/she is trespassing and can be sued by the T. If the tenancy agreement contains a provision to allow viewings on reasonable notice in (say) the last month of the tenancy, it is difficult to see how trespass would be made out as trespass requires entry onto land without permission, but permission has been granted by the T by way of their assent to the relevant provisions contained in the tenancy agreement.

Re: harassment - I suppose a LL/LA could be guilty of an offence under the Protection from Harassment Act 1997 (even if there is a provision for viewings in the tenancy) if they repeatedly carry out viewings in such circumstances where it would be obvious to a reasonable person that fear, alarm or distress (as opposed to mere annoyance or inconvenience) is being caused to the T by the viewings. However, given that the Act was passed in order to remedy the mischief of stalking and similar nefarious activities and was not intended to be relied upon by Ts who wish to make their LLs' lives difficult, I would suggest that the threshold would be set quite high and occasional, unauthorised but politely and reasonably conducted viewings would generally not cross that threshold. However, what a LL/LA must NEVER do, is use or threaten violence to gain entry to premises, as that most certainly IS an offence under the Criminal Law Act 1977.


WARNING: I would just like to add a cautionary note. The above discussion is merely my reasoned opinion of the law on the matter. I believe my conclusions are correct, but I may be wrong. Therefore, LLs and LAs should judge for themselves, in the light of their particular circumstances, whether or not they wish to risk attracting the attentions of the Authorities. Better still, take specialist legal advice on the matter. Remember, this is the criminal law we are talking about here and even if you are eventually acquitted, arrest, interview, charge and trial are extremely unpleasant experiences indeed!

[johnboy]

Excellent detailed reply thanks.

[jeffrey]

Those are just trite statements and merely reiterate the point I was making.
Now, they might be trite to you; but other members may find the summary useful. Do not condescend to them.

[dominic]

It's not quite as simple as that.

If the tenancy agreement is silent on the issue of viewings, then if the LL/LA enters without permission, he/she is trespassing and can be sued by the T. If the tenancy agreement contains a provision to allow viewings on reasonable notice in (say) the last month of the tenancy, it is difficult to see how trespass would be made out as trespass requires entry onto land without permission, but permission has been granted by the T by way of their assent to the relevant provisions contained in the tenancy agreement.

Re: harassment - I suppose a LL/LA could be guilty of an offence under the Protection from Harassment Act 1997 (even if there is a provision for viewings in the tenancy) if they repeatedly carry out viewings in such circumstances where it would be obvious to a reasonable person that fear, alarm or distress (as opposed to mere annoyance or inconvenience) is being caused to the T by the viewings. However, given that the Act was passed in order to remedy the mischief of stalking and similar nefarious activities and was not intended to be relied upon by Ts who wish to make their LLs' lives difficult, I would suggest that the threshold would be set quite high and occasional, unauthorised but politely and reasonably conducted viewings would generally not cross that threshold. However, what a LL/LA must NEVER do, is use or threaten violence to gain entry to premises, as that most certainly IS an offence under the Criminal Law Act 1977.


WARNING: I would just like to add a cautionary note. The above discussion is merely my reasoned opinion of the law on the matter. I believe my conclusions are correct, but I may be wrong. Therefore, LLs and LAs should judge for themselves, in the light of their particular circumstances, whether or not they wish to risk attracting the attentions of the Authorities. Better still, take specialist legal advice on the matter. Remember, this is the criminal law we are talking about here and even if you are eventually acquitted, arrest, interview, charge and trial are extremely unpleasant experiences indeed!

I agree re the Protection from Harassment Act 1997, but the is another criminal offence of harassment under the Housing Act 1988 specifically aimed at LL and agents under which I think it would be relatively non-complex to prove beyond reasonable doubt and get a conviction.

[agent46]

I agree re the Protection from Harassment Act 1997, but the is another criminal offence of harassment under the Housing Act 1988 specifically aimed at LL and agents under which I think it would be relatively non-complex to prove beyond reasonable doubt and get a conviction.

I think you're slightly confused. There is no "offence" of harassment under the HA 1988.

(1) HA 1988 s.27 & s.28 set out in what circumstances and to what extent damages will be awarded against a landlord when they unlawfully evict a tenant. The conduct (and the requirement for intention/knowledge) is the same as that set out in the PEA 1977, but the liability is civil, and so the standard of proof is "on the balance of probabilities". Also, for damages to be payable, the T must actually have given up possession; see s.27(1) "This section applies if...unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises", and s.27(2) "...and, as a result, the residential occupier gives up his occupation of the premises as a residence"

(2) HA 1988 s.29 & s.30 do deal with harassment but these sections of the Act do not create a free-standing criminal offence under the 1988 Act, but instead amend the PEA 1977 to create the offences that have already been discussed in the rest of this thread. In other words, don't make the mistake of 'double-counting' the offence because it appears in two separate Acts.

[Sportingdad]

Ah,:confused: the wonderful world of letting nothing is simple...but one bit of advice don't trust the CAB, I imagine them to be good meaning socialist's with knitting needles and ena sharples hairnets with books that specialise on nothing.

[agent46]

Now, they might be trite to you; but other members may find the summary useful. Do not condescend to them.

(1) I had already discussed the requirement for both actus reus and mens rea. There was probably no need for repetition of the point or for your 'stamp of approval'.

(2) I was not being condescending to other members. On the contrary, I was addressing your apparent condescension towards me.* I clearly had the better of you on this point, so there was no need to hand me down a patronising and didactic little tutorial on the basics of criminal law, unless of course you were doing so in an attempt to make it look like you haven't been caught out in an omission, oversight or mistake. If, however, you did believe there may be scope for general confusion which requires clarification, then perhaps, out of courtesy at least, you should have made it clear that you were addressing the audience and not the players.


Stop wriggling!


* Your post was, it seemed, addressed to me, as it commenced with the word "We're" (as in "you and me both").

[jeffrey]

Abusive post reported.

[agent46]

Abusive post reported.

In what way?

I'm sorry if what I've written has annoyed you, but it doesn't amount to abuse.

Stop being so sensitive.

[jeffrey]

agent46's last post [extract, with annotations]:

I was not being condescending to other members. On the contrary, I was addressing your apparent condescension (1) towards me. I clearly had the better of you on this point, so there was no need to hand me down a patronising (1) and didactic (1) little tutorial (2) on the basics of criminal law (3), unless of course you were doing so in an attempt to make it look like you haven't been caught out (2) in an omission, oversight or mistake (4). If, however, you did believe there may be scope for general confusion which requires clarification, then perhaps, out of courtesy at least (2), you should have made it clear that you were addressing the audience and not the players (5).

(1) Where?
(2) Sarcasm uncalled-for.
(3) The 'basics' were for all LZ members; you're not the only LZ member.
(4) None noted so far in this context.
(5) No posts are 'addressed' to anyone- except private messages.

Who of we two is now being patronising, didactic, and lacking courtesy? [clue: it's not I].

[agent46]

agent46's last post [extract, with annotations]:

I was not being condescending to other members. On the contrary, I was addressing your apparent condescension (1) towards me. I clearly had the better of you on this point, so there was no need to hand me down a patronising (1) and didactic (1) little tutorial (2) on the basics of criminal law (3), unless of course you were doing so in an attempt to make it look like you haven't been caught out (2) in an omission, oversight or mistake (4). If, however, you did believe there may be scope for general confusion which requires clarification, then perhaps, out of courtesy at least (2), you should have made it clear that you were addressing the audience and not the players (5).

(1) Where?
(2) Sarcasm uncalled-for.
(3) The 'basics' were for all LZ members; you're not the only LZ member.
(4) None noted so far in this context.
(5) No posts are 'addressed' to anyone- except private messages.

Who of we two is now being patronising, didactic, and lacking courtesy? [clue: it's not I].

I'm not going to explain all over again as all of the above points have been dealt with in my previous posts, and I have nothing to add to or retract from them.

[jeffrey]

Good. Let's instead get on with more sensible problem-solving.