Can landlords rely on ’24 hour’ inspection notices if they don’t actually give any date or time?

Here is a question to the blog clinic fast track from Steve who is a tenant.

How long can a time window be for a landlord’s notice of access to be valid (excepting genuine emergencies)?

I am in a one-year Assured Shorthold Tenancy, part of a scheme of approximately 700 flats owned by my employer. When the landlord requests access for inspection or works across the estate (there have been many requests) the notice is sent by email and always follows this form,

“Visits will take [insert time, usually less than an hour] and visits will take place between 9am and 4pm over the whole of next week. Due to the scheduling and number of apartments at [name of estate] we are unable to provide timed appointments.”

The email is sent with more than 24 hours notice but always states access will be at any time over a period, typically five days. Does this satisfy the requirement for 24 hours written notice because a five day window makes it difficult to ensure I can be present?

I ask because I suspect the landlord has previously relied on no response as implied consent to enter in our absence (myself and neighbours). This is especially worrying during the COVID pandemic because we often observe the contractors failing to observe social distancing outside and we don’t know where they spread their aerosols if/when they enter our homes in our absence.

Answer

The general underlying law relating to landlords access to a property is that the landlord cannot enter without the tenants’ permission. This is part of the misleadingly named ‘covenant of quiet enjoyment’ which is fundamental to all tenancies.

Basically, the covenant of quiet enjoyment is not about the property being quiet or enjoyable, it is about the right for the tenant to live in the property in peace and without disturbance from the landlord.

However, as the landlord has repairing and other obligations towards tenants, the law also provides for the landlord to be entitled to enter the property in order to inspect it and view its condition and state of repair. For example in section 11(6) of the Landlord & Tenant Act 1985. Always provided that the landlord has given the tenant notice of his intention to inspect first.

But how should this notice be drafted? The section merely says that the landlord shall give ‘24 hours notice in writing’.

The question here is ‘does that 24 hours notice in writing need to be for a specific date and time, or can the landlord give notice that he will be attending within a longer period of time?’ In your case specify a period of one week within which the inspection visit will take place.

A grey area of law

I have had a brief look at my reference material and cannot find any specific authority on this point (although I am sure you are not the only person who has had this problem). It looks as if this is a ‘grey area’ of law.

So if this problem came before a Judge, for example, if a tenant was claiming compensation for unauthorised access to his property, how would a Judge deal with it?

I suspect that a Judge would consider what the purpose of the legislation was. And my view is that the purpose of the legal requirement for the landlord to give not less than 24 hours notice of inspection visits is so that the tenant can arrange to be present at the time of the visit. Which is clearly impossible if the notice covers such a wide period of time. This makes me think that a notice which is so vague cannot really be held to comply with section 11(6).

A case for a test case?

If I am right – and there is no authority here, that I know of – then this would be a good situation for someone to bring a test case. Particularly now when, as you say, there is the danger of coronavirus infection.

For example, probably the best way to prevent infection is to have all the doors and windows open during the visit. But clearly, you cannot do this during a period of one week when the landlord may happen to visit!

However, litigation is expensive so can only really be contemplated if the costs are underwritten by insurers or perhaps a landlords association.

What you can do

If you feel strongly about this, you could send your landlords a letter saying that in view of the danger of infection, you cannot consent to any inspection visit unless you are present and that you, therefore, require them to provide a more precise appointment time.

I should add here that I can understand the difficulty faced by your landlords in providing precise times when they have so many flats to inspect, but I don’t think a court would consider this to be a satisfactory excuse. For example, I don’t see why they can’t specify the morning or afternoon of a specific day.

Landlords are not entitled to disregard tenants’ rights just because they happen to be inconvenient to them!

If the landlords go in anyway …

So what happens if you object to the landlords entering your property unless you are present and they go in anyway, relying on their notice?

My view is that they are not entitled to do this, and it will be trespass for which you are (technically) entitled to claim compensation and perhaps an injunction preventing further unauthorised access.

In fact, even if the notice had given a proper appointment, my view is that they can’t go in without your consent. This issue was discussed at length in my blog post here which attracted a large number of comments.

My view is that there are two rights:

• The landlords right to inspect after giving notice under L&TA1985s11(6), and
• The tenants right to exclude the landlord under the covenant for quiet enjoyment.

If these two rights are in conflict, which right will trump the other?

My view is that it is the tenants right to keep the landlord out which should prevail, even though this may put the tenant in breach of contract. I think most lawyers will agree with me although I know that many landlords don’t!

However as there is (so far as I am aware) no case law on this issue, my views are speculation only (although hopefully ‘educated speculation’!). I believe that they are right though.

What do others think of this? Have you experienced this problem and if so how was it resolved?