Here is a question from Ron who is a seeker after the truth:
The Landlord and Tenant Act 1985 (c. 70) section 11(6) says that there is a covenant that the lessor, ie the landlord, may give 24 hours notice and then enter the premises.
This contradicts the covenant of quiet enjoyment (because the time may be inconvenient for the tenant). Legally, which covenant prevails?
There is some confusion here and different people hold different views.
My view is that the covenant of quiet enjoyment prevails. The landlord can enter under s11(6) but NOT if the tenant says he can’t.
This may put the tenant in breach of the terms of his tenancy agreement, but this will still not entitle the landlord to enter against his will. If he does, then this will be trespass and may also be deemed to be harassment (which is a criminal offence).
The only time the landlord has an absolute right to go in, is in case of emergency. For example if the property is on fire.
Some examples
So if the landlord or his agent give the proper 24 hours notice (although I would actually recommend giving a longer time if possible) and the tenant does not reply, then it will probably be all right for the landlord / agent to use their keys and enter to do the inspection.
Particularly if this is what they have done before, and the tenant has been happy with this.
However if the tenant rings the agent up and says that that time is inconvenient for them and can they make another appointment, then it will be trespass / harassment if they still go in at that time.
Also if the tenant writes and puts them on notice that he (the tenant) must always be there at an inspection and that they must not use their keys to go in if the tenant is not there, then the agent / landlord must abide by that.
Note that if the landlord or agent go into the property when the tenant is not there, they may be making themselves vulnerable to a claim by the tenant that they have damaged or stolen something. This is one reason why having the tenant there is a good idea.
This single issue is responsible for about 50% of all complaints made to me by tenants, probably true for all TROs I would think. Hardly a day goes by when I dont get at least a couple of phone calls asking about this.
Either it is landlords or agents insisting on their right to enter on a date and time that suits them because it is “Their property”.
On the other side you get tenants being inflexible and difficult about making arrangements for the most innocuous things.
A bit of give and take and mutual understanding on both sides always solves the problem, conversely when parties wont budge an inch, I simply draw the line in the sand, cite quiet enjoyment and tell them to stop acting like argumentative brothers and sisters, or I’ll play the parent and take the toys away from both of them.
Most commonly it is the clause in so many contracts saying that the outgoing tenant must allow access for viewings during the last 28 days of the tenancy which always begs the question, what exactly is the last 28 days? Does it mean the last 28 days of the fixed term or the last 28 days before possession takes effect? Or does it mean 28 days before the tenant is due to leave when they have terminated? It’s never entirely clear and arguments abound.
Also, Section 11 (6)rights of entry seem to relate solely to the repairing covenants. This is one of plugs I pull if people wont meet in the middle
That is very true Ben and actually something I had intended to include in the post but forgot.
S11(6) will only entitle a landlord to enter “for the purpose of viewing their condition and state of repair”.
Not for any other purpose. Such as showing round new tenants for example.
What are your thoughts on what constitutes the last 28 days? or anyone’s thoughts on that?
It will depend on the circumstances.
For example, whatever the tenancy agreement says, if the tenants have told the landlord that they are not moving out, it will be unreasonable for the landlord to enter to show round new tenants during the last month of the fixed term.
One is a legal (i.e. statutory) right and the other a lawful (i.e. common law) right.
You’re walking a very thin line if you enter someone’s property without permission unless it’s a genuine emergency where someone’s life is in serious and imminent danger.
For sure Jamie, there are the two elements to balance out but I regularly encounter situations where agents and landlords dont acknowledge either, even with the best will in the world.
As a Tenant I remember calling my agent with a hot water problem which they said they would fix. I said we need to arrange a suitable time and the agent said “Oh dont worry, we have keys, we can just come in when you are at work”.
This wasnt said with any malice at all, far from it, but it highlights a common mis-perception commonly held
Agree with virtually everything from Tessa and Ben (yes even you Ben on this occasion!!!) but the answer I think lies in the two Statutes.
The L&T 1985 will not, unless the LL kills the tenant while at the property, result in a custodial sentence if tenant rights are breached.
Offences under The Protection From Eviction Act 1977 are far more specific, carry potentially huge damages awards and can result in a custodial sentence.
So PFEA on balance is the better one to definitely observe
And what happens if a burly tenant comes storming out of the kitchen when he hears someone coming into his home and a later claims ‘proportionate force’ in court?
Ben, I’m sure lots of agents and landlords don’t have a clue, but we always err on the side of caution and a tenant’s right to quiet enjoyment; mainly for the reasons already given in that it’s too easy to be accused of harrassment and unlawful eviction, where the penalties are harsher.
All valid comments but I am still interested, particular with you Jamie being a working agent, what your thoughts are on the common clause allowing viewings during the last 28 days.
Clearly a landlord doenst want to end up with void periods by not having access to viewings until the property is vacant but also, as anyone who has ever sold a house will testify it’s a major inconvenience for the occupier and with tenants they gain nothing from it, unlike a vendor.
Industry Observer? Having had to have a lie down to get over the shock of you agreeing with me, haha what are your views on what constitutes the last 28 days?
We have similar clauses in our agreements but rarely rely on them. Most of our tenancies are fairly long assured tenancies (average 5 years) so most need work after the tenancy has ended before they are in a suitable condition for viewing.
Even with those that are let on ASTs we usually try and hold off viewings until the tenant has moved out and a proper check-out has taken place so we can verify the conditon of the property. Landlords rarely question our approach and if they do, we warn them of the dangers of trying to force new tenants in too quickly.
The only time we really do viewings before the tenancy has ended is when the tenant want’s to be released early, then they’re quite happy to allow viewings anyway!
But then we’re not you’re average high street agent and even out ASTs are generally for a least 2 years min.
Hi Ben and Jamie T
The last 28 days would be the last 28 days of the fixed term unless therte is some known reason those are not going to be the 28 days that matter i.e. tenant leaving early or known to be lingering. The standard clauses are last 3 months of OCCUPANCY for a sale and viewings and last 2 months for a re-let – or maybe 6 weeks.
What matters as with everything is the exact wording of the clause. Important to emphasise it is during the last period of time whatever that is of the fixed term.
Good to hear Jamie, we have a fair few agents in my locale who take a different approach though. At least once a week I have to have the same argument about quiet enjoyment/rights of entry/contractual terms.
Thinking off the top of my head I recall that the wording of the clause is usually “During the last 28 days of the tenancy” but my point is always “Which tenancy?” the fixed term or the periodic?
And it’s a bit of a nonsense clause when you think about it. If the tenant doesnt comply, all the landlord can do is sue them for breach of contract, but they will be planning to re-let anyway, hence the requirement for the viewings.
A bit like the forfeiture clause which usually states that if 14 days rent becomes due the landlord can re-enter the property and immediately take back the tenancy (Not in such blunt words) Try doing it and watch the Protection from Eviction Act 1977 jump on your toes.
Or the ‘No parties, no overnight guest’ clauses I see so often. All very well but try actioning it.
‘“During the last 28 days of the tenancy” but my point is always “Which tenancy?” the fixed term or the periodic?’
Both I would say.
The clause is included in the fixed term tenancy agreement, and thus obviously applies to it.
Then any Statutory Periodic Tenancy will inherit it and thus the clause will also apply to that tenancy.
In principle the landlord could apply for a court injunction in order to enforce access, but I don’t think that this would make any sense to try in practice.
Hate to be picky Ben but there is only ever one tenancy as stated in Superstrike.
During the fixed term it is the fixed term.
Whan a NEW periodic tenancy has arisen, it is the periodic tenancy.
The answer is a common sense one – these clauses, usually viewings for sale for last 3 months and re-lets for last 6 weeks are referring to the intended, last known period.
Cours if tenants don’t want people tramping about all they have to do is not move!!!