Here is a question to the blog clinic from Alison (not her real name) who is a tenant
We are tenants and have recently given notice to terminate our agreement. The agent has advised us of their intention to conduct viewing as per clause of our contract (please see below).
We explained to the agent that they will need our consent in order to enter the property and we also require to be there when potential viewings are conducted (we do not want strangers looking around at the property).
We also explained that we need at least 24 hours notice period in writing as they were calling us in the past for viewings to be conducted the next couple of hours (they said they will agree on that one – despite being our right – as a goodwill on their part).
Unfortunately agents insist that because they have given notice and they have the keys to the property are entitled to enter the premises without our agreement. We complained a thousand times about it and have received calls trying to persuade us that entering the property without our consent is the right thing (for them) to do under our agreement.
We also explained to them that this a violation of our “quiet of enjoyment” of the property and entering the property without our agreement is potential harassment (not to mention trespassing) but insist in doing it (in one of the cases they left the door unlocked).
We are due to leave the property so changing the locks is not an option (as it is quite expensive for a property that we are going to leave). The landlord is not responding to our calls or emails and we are left with an agent who persists in entering the property without our agreement. Can you please advise what can be done? Thank you.
The clause:
“To allow the property to be viewed at all reasonable times during normal working hours (between 9am and 8pm) by prior mutually convenient appointment or on reasonable Notice either via the Tenant or with keys, during the last two months of the Tenancy: following a request by any person who is (or is acting on behalf of) the Landlord or the Agent and who is accompanying a prospective purchaser or Tenant of the Property”
Answer
As you rightly say, all tenants have the benefit of the ‘covenant of quiet enjoyment’ which provides for tenants to be entitled to be left in peace in the property without disturbance from the landlord (or his agent).
It is customary for landlords and their agents to be allowed to have access to conduct inspections during the last couple of months of the property. However this is subject to the covenant of quiet enjoyment – 24 hours written notice must be given and the tenants are entitled to object and insist on being present.
If there is a history of the agents leaving the property unsecured as in your case then this will strengthen your case for insisting on being present during any inspections.
The clause you quote is not particularly clear, but if it purports to give the agents any rights to enter without your agreement it will be void under the Unfair Terms regulations (now to be found in the Consumer Rights Act).
If you have asked the agents to stop but they persist in entering without consent, the best thing to do is to complain to their Property Redress Scheme. If they find for you (and they should) then they have the power to award compensation.
TPO will take months to deal with any complaint. More urgent action would be achieved by complaining to the Police about intruders entering the property and asking them to warn the agent that they are guilty of Tresspass. Local TSO might be worth contacting too.
Another thought – if you are normally there when the agent comes round having ignored your instruction not to, when they next turn up with viewers make sure you have a chat with the viewers within earshot of the agent telling them that they can expect unwanted and unauthorised visits if they take the property. Doing this a few times should make the agent stop.
Haha I like the cut of your jib I/O Yes indeed, any prospective tenants need to bear in mind that they will also be going through this when it comes their time to leave.
The clause is setting itself up to fail by making an insistence on it being during working hours, clearly there to mean the agent’s working hours and requiring the tenants to take time off to facilitate the viewings should they wish to be there.
Reasonableness alone would dictate a bit of give and take but the agents want it all on terms convenient to them.
If I was the TRO contacted over this I would call the agents and warn them that they are trespassing and threaten to report them to the redress scheme and that I have advised the tenants to call the Police if they show up unwarranted again, another turn-off for viewing tenants.
Lock changes arent usually that expensive either. A yale lock is about £6 and is held in place by two screws. All of the above might bring the agents to the negotiating table to work out a mutually agreeable compromise
Whether the tenant is entitle to refuse access depends, as usual, on the term of the tenancy.
Certainly a reasonable clause allowing access is not a breach of quiet enjoyment. Such a clause gives consent so there is no requirement to seek further consent, but just to give notice.
You need the read the lease carefully before signing, this is the best piece of advice you can get.
Romain I have to disagree, well actually agree initially but then go one step further.
Having an access clause like this and thinking it can override statute if the tenant then changes their mind is like having an agreement for say 5 years but where in exchange the tenant agrees to take over some of the main s11 repairing obligations.
If the boiler blows up and the Landlord says “Thank you Mr Tenant the new boiler bill will be £2500” there is nothing the Landlord can do if the tenant then reneges on the deal. I have been there and seen this tested, just as I have seen the “We’ve given you 24 hours so we’ll be round at 3pm day after tomorrow whether you like it or not” tested as well.
You cannot sign away your statutory rights, at least not in lettings, another example the agreement has a clause making it the tenants responsibility to renew the gas safety record, though at Landlord expense. Tenant fails to do so, child gets carbon monoxide poisoning and dies. Who do you think the HSE will prosecute, the tenant because they failed in a contractual obligation? Or the Landlord because they failed on a Statutory one.
An English person’s home is their castle has long been one of the strongest tenets in English Land Law. For mortgages in the Law of Property Act 1925 and for tenants in the PFE 1977.
Barge in and find the wife in the bath when they have refused access despite the agreement clause and watch what happens. If the tenant specifically refuses access any agent or Landlord would be extremely unwise to ignore that refusal, no matter what the tenant may have signed.
One other trick for these tenants is not to say anything, be in the property, lock the door on the inside and when the agent tries to let themselves in, start shouting through the door that they are fed up with unauthorised access.
Too much of this unauthorised access goes on, especially dare I say it, by private landlords.
The key is that a reasonable clause for access does not override any statute or statutory right. Even better, such clause may be inserted in the lease by statute (see s.11 of the Landlord and Tenant Act 1985).
Access pursuant a clause in the lease, and as long as the conditions have been met, cannot be ‘unauthorised’ by definition whether the tenant likes it or not (he cannot ‘change his mind).
Of course it should all be reasonable so a landlord may want to take her tenant’s preference into account.
Romain which is it?
In first paragraph you say Statute outweighs agreement/lease
In the second you say it doesn’t.
Key question is this:-
If an agent has given 24 hours notice in a sensible, quality worded clause, can he simply barge in whenever he feels like it even if the tenant expressly says they cannot?
SAilence is acceptance e.g. on surrender offered by tenant, so if silence is the response to the notice being given there is an argument that says the agent can go. But surely not in the face of express refusal by a tenant (Ben I think we know what a LA attitude would be)