Gas Safety Law
As you probably know, as a landlord, you are obliged by law to carry out a gas safety check (using an installer registered with the Gas Safe Register) every year and give a certificate to the tenants
Its a criminal offence not to.
But what if your tenants won’t let you in? It sounds ridiculous – but many don’t.
- They may dislike the landlord and not want him coming into their home
- They may be suspicious and think that there is some ulterior motive
- They may be carrying on criminal activities at the properties (for example they may have converted it to a cannabis farm) and don’t want anyone coming in, or
- They may be ‘bloody minded’ or just plain stupid.
However this puts you in a spot. You are under a legal obligation to get the inspection done – but you can’t just go in anyway regardless of whether the tenants like it or not – that is a breach of their ‘covenant for quiet enjoyment’.
Neither does the tenants’ refusal give you the right to cut off the gas – that’s illegal too.
The Heath & Safety Executive who enforce these regulations will expect you to have at least three ‘documented attempts’ to gain access to get the safety check done.
But if the tenants still don’t let you in, you shouldn’t just sit back – you may be safe from prosecution (for now) but you still need to keep trying.
What you can do?
Here are some suggestions:
- Make your three letters really powerful so they will make your tenant think twice about refusing to let you in
- Get someone ‘official’ – for example someone from the Council – to talk to your tenants and explain that it really is necessary, its not just the landlord being nosey
- Consider evicting under section 21 (if you can), or if this is not possible
- Apply to court for an injunction order.
The Gas Access Kit
In order to help you with 1 and 4, and also to give you a procedure to follow, I have teamed up with Barrister Robert Brown of Arden Chambers to create a Gas Access Kit.
This also has background information on the law, links to helpful websites, eviction notices and other forms and anything else we can think of to help you and make it easier for you to comply with the law.
The procedures for getting the injunction are set out very clearly with screen shots of all the forms, all the wording you need (some of which you will have to adapt to suit the circumstances of your case) and guidance on what to do at court.
Hopefully you will never need to use it, but knowing that you can, will help you with your dealings with your tenant.
We also give guidance on getting an order for possession based on the tenants refusal to let you in – but don’t recommend this as there is a lot more that can go wrong (for more on this, listen to the podcast here).
Who is the Gas Access Kit for?
The kit has been written mainly for:
- Private Landlords, whether these are one property / accidental landlords or
- Large portfolio landlords, in particular
- Landlords with sitting protected tenants (i.e. who cannot be evicted easily under section 21)
- Social housing landlords, e.g. housing associations
- Property Managers, and
- Letting agents
However it will also be very useful for:
- Housing advisors (eg local authority staff, CABx etc), and
- Lawyers
Even if you have no intention of using the court injunction procedure, understanding how it all works and knowing that you COULD do this if necessary, will give you confidence when dealing with your recalcitrant tenants.
For more information and to buy the kit now >> click here.
Or why not sign up for our FREE 4 part information series >> here?
While I understand the risks of doing so, is it really a breach of quiet enjoyment to inspect the property?
After all, the landlord has a right of access for this purpose. Therefore if the right is used reasonably, the tenant, who is not entitled to refuse, has no ground for complaint, IMHO.
I am afraid it is.
The tenant as the owner of the tenancy (which is a form of ownership of property if only for a period of time) has the right to exclude everyone from the property, including the landlord, even if this puts him in breach of his tenancy agreement and other legal obligations.
The only time the landlord can gain access without permission is in cases of genuine emergency – and that means a REAL emergency such as a fire. Not just a vague suspicion that the gas may be a bit dodgy as it hasn’t been inspected for over a year.
The police acting under the authority of a warrant can enter, as can Local Authority Officers under some of their powers, but not landlords.
OK. My understanding was that quiet enjoyment is not absolute and depends on the rights of access agreed in the lease.
For inspection, the landlord has permission through the lease, what he must do is give notice.
Only in case of emergencies does he not need to give notice.
My understanding was that there is a difference between a notice and a request.
A tenant can always withdraw permission. So even if he has signed a tenancy agreement authorising the landlord access on 24 hours written notice (which most tenancy agreements do), if he then says he does not want the landlord to go in – the landlord cannot go in (save in emergency etc).
Thanks, Tessa.
Since the right of access for inspection is a contractual term implied by statute, I’m still not clear what could entitle the tenant to withdraw permission.
There are two rights here
1. The right of the landlord to go in and do his inspections and
2. The right of the tenant to refuse access to everyone under the covenant of quiet enjoyment.
If the tenant does not want the landlord to go in, the two rights are on conflict – but the tenants right overrides the right of the landlord. Even though this may put him in breach of the terms of his tenancy agreement etc.
In the short term, the tenants refusal may be entirely reasonable. For example it might be his daughter’s birthday party, or a family member may be sick. Or he may want to be present at the inspection.
Long term it may not reasonable but the landlord still cannot go in without the tenants agreement.
This is one of the madder bits of landlord/tenant activity.
I cant tell you the number of times down the years I have had complaints about tenants who request something be done but then for unknown reason just refuse to let the landlord in to do them, and yet a landlord would still be in breach of their statutory duties if they dont comply.
Mind you I have had even more complaints about landlords letting themselves in without permission of the tenant, which is probably why the law is biased that way.
Thanks, Tessa.
However, your answer brings me back to my previous point: my understanding is/was that the right of quiet enjoyment is not absolute but subject to the terms of the lease.
Indeed, my understanding is that quiet enjoyment is an implied term of the lease under common law, which can be modulated by other terms.
As such, my understanding is that a landlord will not be in breach of the right of quiet enjoyment if he reasonably gains access pursuant a right to do so set out in the lease.
If there is a course of dealing where the tenant has allowed the landlord to go in to do the inspections (after giving written notice) then the landlord is entitled to assume that he can carry on doing this – until the tenant contacts him and asks him not to go in.
So far as a clause in the tenancy agreement is concerned, you still have to give your written notice first and again, if the tenant refuses to allow you access you cannot ignore this and go in anyway.
If the tenant says nothing and you go in when he is not there, that may be all right, but you risk the tenant complaining about this and maybe reporting you for trespass.
Also of course if the tenant is minded to be malicious he can always allege that something was stolen or broken when you were there without his agreement – which is a claim you may find hard to refute.
So you need to be careful.
It is right that there is an implied covenant in most tenancies that the landlord, or any person authorised by them in writing, to enter the premises at reasonable times of the day to view the condition of the premises and state of repair, upon giving 24 hours’ written notice: Landlord and Tenant Act 1985, s.11(6). This does not, however, really affect the covenant for quiet enjoyment, which cannot be made conditional upon the tenant performing their covenants.
The point, I think, is that for there to be a breach of the covenant for quiet enjoyment, there needs to be a substantial interference with the tenant’s ability to use the property. The most obvious way in which this arises would be by way of dispossession from the premises, but mere interference with the tenant’s comfort may be enough to amount to a breach of the covenant for quiet enjoyment.
There may be cases where entering the premises, after giving sufficient notice etc, does not amount to a breach of the covenant for quiet enjoyment and is lawful, but this does leave it open to the occupier to challenge and the scope of s.11(6) is actually quite limited.
That is why all the large landlords that I’m aware of always seek an order before going in (except in an absolute emergency). That order can also go much further than s.11(6) provides for. Access injunctions are quite routinely granted by the courts, as the judges recognise that it is necessary to get in and that a court order is also necessary to both validate the landlord’s actions and to protect the landlord.
As Tessa has said, a landlord needs to be careful.
Just read this in a council tenancy agreement;
“If we cannot carry out the safety inspection because you do not respond to our request we will serve a seven-day notice telling you when we will call. If you do not allow us in, we will force entry to carry out the safety check. We will take reasonable care in forcing entry and we will secure your home as we leave. We will charge you for the cost if we need to force entry”
Seems that is how the experts do it.
I have acted for several LAs with similar provisions in their tenancy agreements. They all (I think) get court orders first.
Ah I did mention that it may not be a good idea to gain access when the tenant had made clear he refused ;-)
My point is that, as per my understanding, there would be no breach of the covenant of quiet enjoyment, and I think no trespass either, if the landlord did as he has the right to.
The kit is for situations where the tenant has refused to allow access.
In those circumstances the landlord should not go in, which is why we have done a DIY Guide to help.
What is sorely needed is clarification from the courts as to how the competing rights of landlord and tenant interact and guidance on how such rights as the landlord may have if he reserves them may be exercised.
Pending that, I am inclined to go with what Romain says. On what basis is a tenant entitled unilaterally to ignore any (reasonable) provision of the tenancy, express or implied, which allows the landlord access? In particular, if a tenant is entitled to ignore a provision implied by statute that is tantamount to saying that the statute only applies at the tenant’s will – and that surely cannot be right.