Strange request by a landlord?

[alfwithhair]

My son rents a property from a private landlord. He telephoned him early tonight and said

 

" I am changing my morgage provider so a surveyor will be coming round on Tuesday at 10.30am. Could you make sure you are not in the property when myself and the surveyor call."

 

Now my son is a little worried by this request as he think that if he does go out while they visit, he may not be able to get back in on his return because the locks might of been changed.

 

He is not in arrears with the rent or any other household bills, but thinks this is a very odd request for a landlord to make.

 

Is there any legal requirement that he has to be out of the property for this visit to take place?

 

Thanks for your advice

[Ed999]

The tenant's legal rights in this respect are set out in the tenancy agreement.

 

If the agreement contains a clause reserving a right of entry for the landlord for this purpose, then he is entitled to enter the property, provided he gives the period of notice required by the clause (or reasonable notice - usually 7 or 14 days notice - if the clause is silent as to how much notice must be given). And the notice must be in writing if the clause requires that.

 

This is clearly NOT an emergency, so any clause in the agreement that permits short notice to be given in an emergency will NOT apply.

 

The landlord has NO right of entry if the agreement does not contain an express right of entry, as there is no implied right of entry.

 

The landlord CANNOT require the tenant to not be present. The tenant has the legal right of occupation of the premises, and cannot be asked to vacate them until the tenancy is terminated (which requires 2 months notice).

 

It would be prudent to be present at all times while the landlord is actually in the premises, to monitor his activities.

[dpick]

Hi a possibility could also be that his landlords mortgage does not allow him to let the property, I cannot remember the type of morgage but I do know that my old morgage I got a discount for signing up with a clause that I would not be buying to rent.

 

dpick:)

[MrShed]

Agree with Ed. I would speak to the landlord, and refuse access should your son not be present. I would also be asking the question why he requires your son to not be present.

[Ed999]

Agree with Ed. I would speak to the landlord, and refuse access should your son not be present. I would also be asking the question why he requires your son to not be present.

 

 

The tenant CANNOT refuse access if the tenancy agreement allows the landlord to enter the property and the landlord gives the correct notice that is required.

 

But the landlord has no legal power to compel the tenant not to be there.

 

The tenant is not entitled to question the landlord. Nor is the tenant entitled to refuse access on some pretext if the landlord has a contractual right of entry and gives the correct notice.

[Planner]

Ed999 - Are you suggesting that a contractural right of entry overides the common law "right to quite enjoyment" and the protection from eviction act 1977?

[MrShed]

Not true Ed, at all. Nothing in the contract can override the tenants statutory rights, and such a clause would. I'm surprised at someone so knowledgeable getting such a fundamental wrong? No offence intended, just genuinely surprised!

[alfwithhair]

Well son's landlord has telephoned again and said the surveyor cannot make the appointment. So I have passed all your comment on to him, so lets see what happens if he phones again to make the same arrangment.

 

Thanks for all your help

[Steve__M]

Are you sure he's not showing potential new tenants or buyers round?

 

When a landlord of mine wanted to get rid of me and my friends, the first we heard was when the future new tenants turned up at the door to "have another look round".

[topletters]

Hi

 

I take it that your son's landlord is not one who resides at the property. By law, the landlord is first of all obliged to give your son at least 24 hours prior notice in writing (Landlord & Tenant Act 1985). Even having done that, your son is legally entitled to refuse access to the landlord or anyone acting on his behalf. Although your son does not own the property, it is still his home and the law grants him the right of 'quiet enjoyment.'

 

In his shoes, I would be suspicious of the landlord's motives in asking him to be absent from the property while the visit takes place. I would be saying no way and that any visit takes place while he is present. Should the landlord enter without your son's permission, he would be breaking the law. Refusal to comply with the law could be construed as harassment under the Protection From Eviction Act 1977. If the landlord did refuse you son access back into the property, a criminal offence would have taken place under the same Act. The police and your local council would have powers of prosecution under that Act. He could also get a solicitor to issue an injunction against the landlord requiring access be granted. Hopefully it wont come to that.

 

Regards

[alfwithhair]

Well I have just spoke to my son and asked if the landlord has been round yet. He said

"yeh he's been, but he didn't make us leave - even though he said he would - he just pretended it was his house and we were his "workmates" and we'd all come from work to meet the surveyor; but any moron with half a brain cell could have seen through that"

So the plot thickens, what he is up to I have no idea and I think my son went along with his charade as he was worried about him throwing them out.

[MrShed]

Sounds like potential tax evasion and non-notifying of the mortgage company to me...

[topletters]

Hi

 

If your son feels in anyway harassed or intimidated by the landlord's actions, I would advise for him to contact your local authority to see if they will liaise with the landlord on his behalf. Shelter are also a good service to speak to as they have extensive knowledge of landlord & tenant law. I know that our own local authority provides such a service, and hopefully your own will do likewise. Legally, he is within his rights to refuse access to his landlord (Housing Act 1988).

 

Regards

[Ed999]

Ed999 - Are you suggesting that a contractural right of entry overides the common law "right to quite enjoyment" and the protection from eviction act 1977?

 

 

Neither the right to quite enjoyment nor the 1977 Act are in issue here, since the landlord is not seeking to evict the tenant. This is merely a contractual request for access to inspect the premises.

[Ed999]

Not true Ed, at all. Nothing in the contract can override the tenants statutory rights, and such a clause would. I'm surprised at someone so knowledgeable getting such a fundamental wrong? No offence intended, just genuinely surprised!

 

Neither the right to quite enjoyment nor the 1977 Act are in issue here, since the landlord is not seeking to evict the tenant. This is merely a contractual request for access to inspect the premises.

[Ed999]

I take it that your son's landlord is not one who resides at the property. By law, the landlord is first of all obliged to give your son at least 24 hours prior notice in writing (Landlord & Tenant Act 1985). Even having done that, your son is legally entitled to refuse access to the landlord or anyone acting on his behalf. Although your son does not own the property, it is still his home and the law grants him the right of 'quiet enjoyment.'

 

You have overlooked the fact that the tenancy agreement gives the landlord a contractual right to have access occasionally, on notice, to inspect the premises.

 

More than 24 hours notice was given in this case, but we have not been told by the o/p what the terms of the relevent clause in the tenancy agreement says, so we don't know how much notice the landlord is contractually obliged to give. It is probably more than 24 hours notice, since the landlord did in fact give about 3 days prior notice.

 

 

Should the landlord enter without your son's permission, he would be breaking the law.

 

No, he would not be. You have overlooked the fact that the tenancy agreement gives the landlord a contractual right to have access, on notice, to inspect the premises.

[Ed999]

Well I have just spoke to my son and asked if the landlord has been round yet. He said

"yeh he's been, but he didn't make us leave - even though he said he would - he just pretended it was his house and we were his "workmates" and we'd all come from work to meet the surveyor; but any moron with half a brain cell could have seen through that"

So the plot thickens, what he is up to I have no idea and I think my son went along with his charade as he was worried about him throwing them out.

 

 

It is perfectly obvious that the landlord wished to conceal from the mortgage company's surveyor the fact that the property is rented out to tenants.

 

Renting is probably forbidden by the terms of the mortgage he is trying to obtain, so he is attempting to deceive the new mortgage lender accordingly.

 

Buy-to-let is not popular with some lenders, who will refuse to lend on such properties. This must be one of those lenders.

[wotnot]

Have you ever thought it may be as simple as the L is remortgaging for whatever reason and maybe he has put a higher rental figure and valuation on the application form and does not want the tenant to put a spanner in the works.

[MrShed]

 

No, he would not be. You have overlooked the fact that the tenancy agreement gives the landlord a contractual right to have access, on notice, to inspect the premises.

 

But that contractual right attempts to override the statutory right of the tenant to have quiet enjoyment and possession of the property during the tenancy. This is unenforceable, as a contractual term cannot do this.

[onlynameleft]

I think Mr Shed and Ed you're both part right.

An implied right of quiet enjoyment is subject to modification by any express clause to the contrary in the tenancy agreement. So the contractual clause means the tenant is contractually obliged to give access on the prescribed notice.

The issue arises if he refuses to do so. The landlord cannot simply break in because of the protection from eviction act. He would need a court order but if would effectively be an injunction requiring the tenant to give access in accordance with the agreement rather than necessarily an order for possession. landlords often have to go down this route if the tenant refuses access to carry out gas safety tests for example.

[Planner]

Neither the right to quite enjoyment nor the 1977 Act are in issue here, since the landlord is not seeking to evict the tenant. This is merely a contractual request for access to inspect the premises.

 

Really 1977 Act;

 

(3A) Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if -

(a) he does act likely to interfere with the peace or comfort of the residential occupier or members of his household, or

 

The act isnt just concerned with eviction you know (obviously you dont).

 

The majority of your 'advice' is beyond poor as of late.

[blazing-badger]

I would suggest that those who claim that the Landlord has no right of access read the very helpful sticky on this point :-

 

http://www.consumeractiongroup.co.uk/forum/landlords-tenants/74053-access-property-landlord.html

 

Reasonable access from the L/L, after due notice has been given, does not breach the Tenant's right to quiet enjoyment. This would only be the case if the frequency of the L/L's visits were unreasonable or notice were not given.

[MrShed]

But the tenant has the right to refuse such visits.

[blazing-badger]

No. The right to quiet enjoyment is not absolute. Furthermore with regard to S3(A), the question is whether the L/Ls request for access is "likely to interfere with the peace or comfort of the residential occupier or members of his household". A short visit necessary for the L/Ls business does not fall into this category.

[onlynameleft]

And what happens if the tenant simply says no? What does the landlord do then? Break in? No, because that is a criminal offence. The landlord would have to go to court for an Order permitting him access to the property in accordance with the agreement.

The landlord who relies on the wording of section 3A to decide whether or not the length and timing of his visit affords him a defence to a criminal prosecution is playing with fire imho.