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Oct, 2014

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  1. #1
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    Default A landlord's right of access

    What follows is my analysis of the position. It should not be treated as gospel.

    Part 1

    It is often asserted that a landlord, even if the tenant has agreed to it in the tenancy agreement or lease, may not enter premises without the consent of the tenant. Whilst on the whole it is wise for a landlord (and especially a landlord of residential premises) to proceed on the basis that that is the law, I do not think it is in fact the law.

    There is no rule of law that says that a landlord may not exercise any right of entry he reserves. A tenant must of course not be harassed. Apart from that he has a right to quiet enjoyment, but that right needs to be read as if it were qualified by any right reserved that allows the landlord to enter, so long as he behaves reasonably. It is not easy to say what is reasonable. Since the exercise of the right is not dependent upon a court saying it can be exercised there must be circumstances, apart from a case of genuine emergency, where it is not unreasonable for a landlord to enter without consent and even where consent is refused, but it is a brave landlord who thinks he knows what the circumstances are.

    If you want a more detailed consideration of the question, read on.

    To put the question is a wider context, no interest in land, whether freehold or leasehold, is ever absolute in the sense that the whole world can be excluded or that the law permits you to do what you like on your own land. First and obviously you cannot commit a crime. The law allows aircraft to invade your airspace. The ownership of mines and minerals such as coal, gas and oil is determined by statute and such as gold and silver by the common law. You may not do anything on your land which interferes with any natural rights of drainage or support enjoyed by your neighbour. The law does not allow you to commit a legal nuisance on your land. Certain activities or changes may require the permission of a competent authority. There are any number of statutory rights of entry.

    When it comes to land law, which is private and not public law, rights exercisable over land may be agreed (and in some cases implied) and a landowner may agree to restrict the use of his land in some way. In particular, rights of access (not to be confused with rights of way) may be granted or reserved.

    If the owner of a property wishes to go onto his neighbour's land to carry out repairs there are two possibilities:

    A. He has an easement that allows him to go onto the land. The easement can only be exercised for the purposes stated and according to the terms of the grant and must in any event be exercised reasonably. If the neighbour declines to allow or prevents access an application may be made to the court to enforce the right.

    B. He does not have an easement and the neighbour refuses consent. In that case, if certain conditions are fulfilled, the court may, if asked, make an order allowing access under the Access to Neighbouring Land Act 1992. Access is then allowed for the purposes specified in and subject to any conditions imposed by the order. Once the works permitted have been carried out and all conditions complied with the order effectively becomes a dead letter and any future access requires a new order.

    The difference between A and B is that in A the right of access exists without the intervention of the court, even if it may prove necessary to ask the court to enforce the right, but that in B the right only exists by virtue of the court order. This distinction should be kept in mind.

    When it comes to tenancies the starting point is this: a tenancy is an arrangement in which the landlord gives up his right to exclusive possession (that is possession in the sense of occupation) and hands it to the tenant in exchange for (usually) money. Ignoring the intervention of statutes such as the Protection From Eviction Act 1977, the tenant's right to exclusive possession is strengthened by two things:

    1.The landlord's covenant for quiet enjoyment, which if not express is implied. (Theoretically, I suppose it may be expressly excluded, but I have never heard of this being done.) This covenant is essentially a promise by the landlord not to interfere with the tenant's enjoyment of the property. It is a right that arises as a matter of contract; a breach by a landlord of his covenant for quiet enjoyment is not a tort. The distinction is important because the remedies are different. Whilst in an action for both breach of contract and in tort the court may make an order restraining the defendant from repeating the action complained of, the measure or quantum of damages is different. Simplifying and without going into the matter in detail (something I am in any event not competent to do since I was never a litigator) where there is a breach of contract the measure of damages is the financial loss suffered. It is important to bear this in mind.
    2.The rule that a landlord may not derogate from his grant, that is that he cannot give something with one hand and take it away with another.

    There is some overlap between a breach of a covenant for quiet enjoyment and derogation from grant, and some actions may amount to both. However, no discussion is required for the purpose of this post and any further reference to a breach of a covenant for quiet enjoyment should be taken to include a reference to a derogation from grant.

    In a tenancy agreement or lease a landlord may do one of two things, or may do both:

    (a) impose an obligation on the tenant to allow access for specified purposes

    (b) reserve a right of entry for specified purposes.

    The effect is the same, which is that the landlord has what we may call “the landlord's right of access” - or at least that is what I hope to show.

    There is no statute or any common law rule that says that the landlord's right of access is void or unenforceable. Indeed, in certain cases the law implies a landlord's right of access into the terms of a tenancy. It would be nonsense for statute to imply a right that was void or unenforceable. It cannot be the case that the right only exists where the court says it exists (like a right granted by the court under the Access to Neighbouring Land Act 1992) because there is no statute that allows the court to create such a right. Further, it cannot be the case that you can ask the court to enforce a right that does not exist. I think therefore that we can say that the landlord's right of access exists by reason of it having been agreed, whether expressly or impliedly, and that it exists from the moment that it is agreed.

  2. #2
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    Part 2

    If it has been established, as I hope it has, that the landlord's right of access must exist if it is agreed, we can then ask how that right is to be reconciled with the tenant's right to quiet enjoyment and, if some reconciliation can be made, what restrictions may be imposed on the exercise of the right. I think the two questions are related and can conveniently be dealt with together.

    The right to quiet enjoyment is, like most if not all rights, not absolute. It has to be subject to exceptions, even if not agreed. Where an exception is agreed, whilst a landlord can with some justification point out that it was agreed, I think it comes down to whether the exception strikes at the heart of what a tenancy is – the right to enjoy exclusive possession in substantially the same way that a freeholder would enjoy it. However, discounting long leases of houses, the fact is that being a tenant is not the same as being a freeholder. It is therefore a question of whether the right is intrinsically reasonable and, if it is, whether the manner in which the right is exercised is also reasonable.

    Landlords may require their tenants to allow access for two main reasons.

    The first is to allow access (including access for inspection) for some estate management purpose connected with:

    (i)carrying out such maintenance as is necessary to preserve the value of the property
    (ii)complying with the repairing obligations owed to the tenant
    (iii)complying with statutory obligations

    It is not too difficult here to assess whether a landlord's right of access is being exercised reasonably. I cannot imagine a court refusing a landlord an order requiring the tenant to allow access if it is reasonable to do so.

    The second is to allow access for inspection for some purpose connected with a proposed dealing with the property by the landlord which requires:

    (i)allowing prospective tenants to inspect
    (ii)allowing prospective buyers to inspect
    (iii)allowing a valuer or surveyor to inspect

    Apart from (iii), which should not be frequent, this is more problematic. For a right to allow prospective tenants and buyers to inspect to be useful it has to involve allowing all prospective tenants and buyers to inspect at short notice. A succession of people calling is soon going to amount to a significant annoyance even if you are easygoing; it is annoying enough when you have a vested interest in selling. A reasonable compromise may be to agree viewings should take place on only one day a week during an agreed period of an hour or two. It would be interesting to know what a court would decide.

    Obviously in either case there is no problem if the tenant allows access, but what if he does not? Clearly a landlord or anyone acting on his behalf is ill-advised to force his way in. Whether when the tenant is absent and has objected to entry a landlord or his agent should let himself in is difficult to answer. I think it has to come down what the tenant can do about it. As I said above, the tenant can only ask for damages equal to his loss and it is difficult to see what the loss is if the premises are left as they were found. Whether if a landlord without permission but having the right to enter for a specific purpose persistently, but not unreasonably, enters for that purpose a court would order him to refrain from further entry I would not like to say.

    All the above is all very well, but in practice and in the absence of harassment by either party, when the tenancy is short term no one is going to take the time and trouble to go to court. It really has to come down therefore to the parties behaving reasonably and not adopting entrenched positions, each bearing in mind that if he goes too far he may end up paying the other damages.

    The above applies to residential property only – different considerations may apply to non-residential property.

  3. #3
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    Sorry but too long to read. Are you asking us anything or just telling us the position, please?
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

  4. #4
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    Quote Originally Posted by jeffrey View Post
    Sorry but too long to read. Are you asking us anything or just telling us the position, please?
    Just setting out what I think the position is. A short summary precedes a longer exposition.

  5. #5
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    But who would be stupid enough to risk going in - just in case! Whatever the letter of the law (not read all the above, sorry) I would rather not be in a position to have to defend myself from an accusation of harrassment etc by entering the house when the tenant had refused.

  6. #6
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    I think this needs boiling down into some short easy-to-understand paragraph that we can trot out whenever the question arises, the most common topics being the LL wants access to do gas certificate / repairs / inspection / viewings.

  7. #7

    Default Reasonable notice and terms for access

    As a landlord of an HMO the local authority have quite forcefully told me that they WILL be visiting both the common areas and all the tenanted flats on a certain day and at a time that suits themselves.
    The common areas are not a problem.
    But previously, whenever I have needed access to any flats, out of courtesy I always arrange a mutually convenient time and give the tenant the opportunity to be in attendance should they wish – also gives them an opportunity to have a bit of a tidy up – or am I being cynical?.
    If now a tenant does request being present can I request a time that will suit – even if that means outside of normal working hours.
    Personally I would not want a third party wandering around my bedroom if I was not there, and as I do enjoy a good working relationship with my tenants I do not want to lose it by a heavy handed approach.
    I’m not too sure how tenant’s human rights are affected if they wanted to be awkward anyway.
    Thanks in anticipation.
    TT

  8. #8
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    Default

    You are supposed to make inspections/visits at reasonable times of the day so that might exclude evenings, or even Sundays.
    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

  9. #9

    Default Landlord access rights question

    Hi there

    We are newish landlords on a steep steep learning curve!! We've read Lawcruncher's guide on landlords rights of access, which is really helpful, but we are still unsure as our tenant isn't blocking our access, but just not responding to calls/texts/notes. We need access this week to get a survey done. We advised them last week this would need done at some point the following week, and advised them at the weekend that it would be in tuesday. This was done by text, which is how we normallly sort things out (very amicably). There was no reply, so we popped a note through the door this morning, and left a voicemail tonight when we phoned. A neighbour of the propertyhas said that one of the tenants have moved away, and their partner is staying to finish work, then will be moving also, but as yet they haven't gave notice and the rent is being paid. We've checked our tenancy agreement and it says:
    The tenant will permit the landlord and his agents, with or without workmen and others, with all necessary appliances at all reasonable times, to enter upon and examine the condition of the property, fixtures and effects and to execute repairs to the same.

    Sorry for the long post, but can't seem to get a definitive answer in much of the info available.
    Our question therefore is, can we enter the property tomorrow morning with the surveyor? Thanks muchly for taking the time to read this.

  10. #10
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    Not unless you wish to open yourself up to a whole boatload of trouble! What is in your agreement cannot be enforced unless you were to go to court. If it were me, I would certainly NOT go in.

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