This is a question to the blog clinic from Ellie who is a tenant in England.
My landlord asked to view the property with new tenants as stated in my contract I have to allow this after giving notice. The date she gave me I would be away and I told her no, but I was happy to make another date when I was in .
She then became very stroppy and said she had a legal right to gain access whether I was in or not. Is this the case?
Answer
All tenancies have a clause implied into their tenancy agreements (i.e. it is always there whether it is in the written document you signed or not) called the ‘covenant for quiet enjoyment’.
This is the right for tenants to live in their property in peace without interference from anyone, including (and in particular) their landlord.
If the landlord enters the property without your permission, or harasses you to allow them access, then this is a breach of the covenant of quiet enjoyment. Breach of the covenant of quiet enjoyment is a breach of your contract and ultimately is something you can sue for compensation for.
If your tenancy agreement provides for your landlord to access the property to show around future tenants, then this does not mean she can come round whenever she likes! You need to give her access but are entitled to insist that it is at a time convenient for you.
So long as you are prepared to allow the landlord access at a mutually agreed time, then that is sufficient to satisfy your obligations under your tenancy agreement. It is only if you refuse to allow her access at all, that you will be in breach of your tenancy agreement.
Even then, this does not mean that the landlord can use her keys to enter without your consent! It means that she can apply to the Court for an injunction requiring you to give her access.
However, if you are willing to work with her to agree a mutually convenient access time, this is not something you need to worry about.
Make sure you keep a record of your correspondence with your landlord so you can prove this if necessary.
Tessa – I disagree with this: ‘Even then, this does not mean that the landlord can use her keys to enter without your consent! It means that she can apply to the Court for an injunction requiring you to give her access.’
In Street v Mountford (1985) Lord Templeman said, ‘A tenant armed with exclusive possession can keep out strangers and keep out the landlord unless the landlord is exercising limited rights reserved to him by by the tenancy agreement to enter and view and repair.’
I think this was the first modern case to state the landlord’s right to enter if this is reserved by the tenancy agreement.
Then there is New Crane Wharf Freehold Ltd v Dovener, in which a lease of a flat contained a covenant by the tenant to permit the landlord and its agents and workmen to enter the premises at all reasonable times (and for various usual purposes) on giving not less than 48 hours’ notice (except in case of emergency). The Upper Tribunal (Lands Chamber) held that there was nothing in the wording of the clause which required the tenant to grant express permission….
In fact the case turned not on the existence of the right but the tenant’s obligation to respond to notices, but the words quote above are very clear and unambiguous.
And there are now rights pursuant to landlord’s statutory obligations.
I think that a well-written tenancy agreement can grant the landlord a right to enter provided the entry is in accordance with the rights reserved by the agreement, and (I am assuming this, it’s not in the cases I know) the rights are exercised reasonably. I do not agree that a landlord with such reserved rights has to rely on an injunction to overcome a tenant’s objection to the entry.
The Property Ombudsman’s Code of Practice for Residential Estate Agents states “If you are arranging for someone to view an occupied property, you must agree the arrangements with the occupier (including any tenants) beforehand, wherever possible.”
In NCWF v Dovener cited above the landlord brought the case on the premise that entry had implicitly been refused and his appeal was then dismissed by the UT as it was held that the tenant’s failure to respond was not an outright refusal, hence the landlord would have then been expected to attempt entry at the time and date notified and been prepared to be refused entry at that point (at which point he could have then justified bringing his case).
I guess a landlord might try to use an access clause in the tenancy to defend an accusation of harassment, having attempted entry or having entered without permission whilst the tenant was out, however in practice he still could not enter without an injunction if the tenant physically prevented him from doing so and obtaining one and then booking bailiffs to enforce it would easily take longer than the notice period given by the tenant in this example, or, in most other cases, possession would already be being sought, so obtaining an injunction would usually be moot anyway, surely?
Have you got a transcript of New Crane Wharf Freehold Ltd v Dovener? All I have is a very brief summary, not even a complete report.
There is a bailii report here: https://www.bailii.org/uk/cases/UKUT/LC/2019/98.html
I am grateful for the link to the full judgement in the New Crane Wharf case.
My original comment can usefully be split into two parts:
(A) I think that a well-written tenancy agreement can grant the landlord a right to enter provided the entry is in accordance with the rights reserved by the agreement, and (I am assuming this, it’s not in the cases I know) the rights are exercised reasonably.
(B) I do not agree that a landlord with such reserved rights has to rely on an injunction to overcome a tenant’s objection to the entry.
New Crane Wharf supports part (A) of my argument because paragraph 12 cites without criticism paragraph 36 of the First-tier Tribunal (“F-tT”) judgement: ‘Provided the purpose is a proper one then the Respondent must permit access on being given not less than 48 hours’ notice’ – ie: the right of entry reserved in the agreement is valid. This follows Lord Templeman’s dictum. It seems clear that tenancy agreements can reserve rights of entry for the landlord even if these might seem to contradict the tenant’s right to quiet enjoyment.
Turning to part (B) of my comment, paragraph 12 in New Crane Wharf also refers to paragraph 37 of the F-tT judgement: ‘There is nothing contained in or — in our view — implied by the wording of the covenant to indicate that the landlord may only gain access after first securing the tenant’s confirmation that the chosen day and time is convenient. The landlord must give 48 hours’ notice but then, having done so, it may exercise the right at the stipulated time provided that it is a reasonable time (not, for example, in the middle of the night).
Unfortunately the U-tT judge declined to give a definite answer to the issue in part B of my comment because paragraph 15 says: ‘ …I make it clear that nothing in this decision is intended to address the remedies that may be available to the Landlord in the event of the refusal of permission.’ Note that while this part of the New Crane Wharf judgement does not positively support my contention that a landlord can use its key to enter, it does not refute it either.
I still think a landlord can use its own key if the reserved right of entry has been well drafted because I have not been shown any statute or case law which refutes that.
For the avoidance of doubt I agree with John that if a tenant physically prevents a landlord entering then an injunction and/or a claim for possession are the remedies.
It looks as if the New Crane Wharf case concerns a long lease rather than a short let. However in that case the tenant did not respond to the landlord’s request.
In the post above, the tenant did respond and offered to liaise to find a more convenient date and time. It is arguable that this is the whole point of requiring 24 hours notice – so the tenant can confirm if the appointment is a convenient one. It does not entitle the landlord to enter willy-nilly if the tenant refuses permission.
My personal view is that, for residential short lets, landlords cannot use their keys to enter against the tenant’s wishes, whatever the tenancy agreement says.
The property is the tenant’s home and they are entitled to live there in peace. If an appointment time and date is inconveneint for a tenant, they have a right to refuse consent for that visit.
To give an extreme example, what if the tenants had told the landlord they did not agree to an inspection but the landlords went around anyway, knocked and the tenants did not respond because they were engaged in intimate relations in the living room. Is it acceptable for the landlord to walk in on them? Or the tenants could have arranged a party for their young daughter. Clearly they would not want this interrupted by an inspection visit.
There is also the point that if landlords enter when the tenants are not there and against the tenants’ wishes, they are laying themselves open to accusations of theft of the tenant’s possessions. Or other similar accusations which it may be difficult for them to refute.
However, if you decide to enter your rented property against your tenant’s wishes, this is a matter for you. I would advise against it, though.
Once the Renters Rights Bill has been made law and the new Redress Scheme has been launched, no doubt this is a situation the Ombudsman will need to adjudicate on in due course.
In my original comment I said: ‘I think that a well-written tenancy agreement can grant the landlord a right to enter provided the entry is in accordance with the rights reserved by the agreement, and (I am assuming this, it’s not in the cases I know) the rights are exercised reasonably. I do not agree that a landlord with such reserved rights has to rely on an injunction to overcome a tenant’s objection to the entry.
You have said nothing to convince me that I am wrong.
I have done my best to find a case which specifically addresses the point, including speaking to some notable people in the business. So far I have not found anything apart from the dictum in Street v Mountford. I no longer subscribe to Woodfall or Lexis/Nexis, perhaps there is something there which might prove me wrong. But right now, based on all Ii have read, I think I’m right.
You may be right. In which case, as Ben says, you have nothing to fear.
However, if you are wrong, then:
– your tenants could complain to the Local Authority who could bring a prosecution for harassment under the Protection from Eviction Act
– your tenants could bring a civil claim for compensation and an injunction ordering you to refrain from entering without their specific permission. Or
– your tenants could apply to the First Tier Tribunal for a Rent Repayment Order, which is available for breaches of the Protection from Eviction Act. The potential penalty for this is one year’s worth of rent. After the Renters Rights Bill comes into force, this will go up to two years’ worth of rent. A substantial sum.
The last is probably the most likely outcome, and Local Authorities will often assist tenants.
In the circumstances of this question – ie that the tenant had objected on reasonable grounds to the date suggested by the landlord but who had offered to liaise to find a more convenient date – a landlord who entered anyway without permission could expect a substantial penalty.
A clause in the tenancy agreement (which most tenants don’t read anyway) would be unlikely to impress the Judge.
But if you wish to proceed and enter your tenant’s property anyway against their wishes, on the basis of a tenancy agreement clause, that is a matter entirely for you. Good luck.
All interesting arguments. New Crane and Lord Templeman in Street do talk of contractual rights to enter. Nobody in this thread has mentioned statutory rights and reasons for entering.
s11(6) Landlord and Tenant Act 1985 states “enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.” So clearly this does not cover viewings by prospective new tenants.
Then we have s16 Housing Act 1988 “For executing therein any repairs which the landlord is entitled to execute.”, again no viewings there.
So access for viewings by new tenants remain solely a contractual right but I always wonder where this sits with s1 Law of Property Act 1925 where a tenancy is defined as a form of ownership of land and the later comments of Lord Templeman that “Exclusive possession is the essence of a lease”.
One of the basic tenets of contract law is you can’t contract out of statute, so Lord Templeman’s comment mentioned above ‘unless the landlord is exercising limited rights reserved to him by by the tenancy agreement to enter and view and repair” seems to be at odds with s1 LPA. Having a well written contract should be essential but would any clause allow a landlord to disregard s1 LPA?
You have to then take in possible issues with trespass, which isnt just entering without someone else’s permission but also encompasses where in the property you go.
In Hillen & Pettigrew v. ICI (Alkali) (1935), 2 stevedores tried to sue ICI for injuries sustained when falling through an unsecured hatch. They lost their case because whilst they were instructed to go into the Hold to unload the ship they werent entitled to go onto another part of the ship, so were trespassing.
And then I wonder what happens to contractual rights of entry when a person enters with permission and is subsequently told to leave but doesnt, another form of trespass, or even when permission is given for a landlord to do one thing, in this case conduct viewings and does something else whilst there that they are not entitled to do.
So it’s not as clear cut as a straight contractual v. statutory argument and on a purely practical level a landlord would be unwise to put themselves in a position where a tenant could complain that money had gone missing and the only person who had entered whilst they were not there was the landlord and in this context prospective tenants.
These difficult arguments are precisely why many large social landlords have teams solely dedicated to obtaining injunctions where tenants won’t allow entry – in order to avoid any faff or accusations.
In any event, after 35 years of such arguments I have learnt not to be combative about it. My sanguine response when dragged into such arguments is “Well if you are right you have nothing to worry about. If I am right you could well be committing a criminal offence, so its really down to how confident you feel”
Thanks Ben Reeve-Lewis, an excellent response.
Today I received the latest Landlord Law Blog email – it includes this statement:
‘This also highlights the need to carry out regular inspections so that you have photos or documented evidence to provide to your insurer should you ever need it.’
What if the tenant refuses entry for such an inspection?
A recent thread on another forum was all about tenants refusing access – for gas safe inspections, to investigate leaks, etc. etc.
The law shouldn’t have it both ways when something as important as this is concerned. Either landlords have a right to enter (subject to whatever restrictions do apply at law) or they don’t.
Maybe landlords have right to enter for some reasons but not others. Is that right? Maybe landlords have a right to enter if the lease contains provisions to that effect – but maybe not.
I have said what I think and I won’t repeat it.
But this thread really just illustrates the unsatisfactory state of the law in this matter. And the only references to entry in the renters’ Rights Bill are in chapter 3 relating to LHA investigatory powers
what aren’t we going with “a landlord’s right to enter is enforced by the courts – no order, no entry”? That’s essentially what they epic thread from aeons ago concluded. None of the law cited here is is new, is it?