A landlord's right of access

[Aequitas]

It is often asserted that a landlord, even if the tenant has agreed to it in the tenancy agreement or lease, may not enter premises without the consent of the tenant. Whilst on the whole it is wise for a landlord (and especially a landlord of residential premises) to proceed on the basis that that is the law, I do not think it is in fact the law.

 

There is no rule of law that says that a landlord may not exercise any right of entry he reserves. A tenant must of course not be harassed. Apart from that he has a right to quiet enjoyment, but that right needs to be read as if it were qualified by any right reserved that allows the landlord to enter, so long as he behaves reasonably. It is not easy to say what is reasonable. Since the exercise of the right is not dependent upon a court saying it can be exercised there must be circumstances, apart from a case of genuine emergency, where it is not unreasonable for a landlord to enter without consent and even where consent is refused, but it is a brave landlord who thinks he knows what the circumstances are.

 

If you want a more detailed consideration of the question, read on.

 

To put the question is a wider context, no interest in land, whether freehold or leasehold, is ever absolute in the sense that the whole world can be excluded or that the law permits you to do what you like on your own land. First and obviously you cannot commit a crime. The law allows aircraft to invade your airspace. The ownership of mines and minerals such as coal, gas and oil is determined by statute and such as gold and silver by the common law. You may not do anything on your land which interferes with any natural rights of drainage or support enjoyed by your neighbour. The law does not allow you to commit a legal nuisance on your land. Certain activities or changes may require the permission of a competent authority. There are any number of statutory rights of entry.

 

When it comes to land law, which is private and not public law, rights exercisable over land may be agreed (and in some cases implied) and a landowner may agree to restrict the use of his land in some way. In particular, rights of access (not to be confused with rights of way) may be granted or reserved.

 

If the owner of a property wishes to go onto his neighbour's land to carry out repairs there are two possibilities:

 

A. He has an easement that allows him to go onto the land. The easement can only be exercised for the purposes stated and according to the terms of the grant and must in any event be exercised reasonably. If the neighbour declines to allow or prevents access an application may be made to the court to enforce the right.

 

B. He does not have an easement and the neighbour refuses consent. In that case, if certain conditions are fulfilled, the court may, if asked, make an order allowing access under the Access to Neighbouring Land Act 1992. Access is then allowed for the purposes specified in and subject to any conditions imposed by the order. Once the works permitted have been carried out and all conditions complied with the order effectively becomes a dead letter and any future access requires a new order.

 

The difference between A and B is that in A the right of access exists without the intervention of the court, even if it may prove necessary to ask the court to enforce the right, but that in B the right only exists by virtue of the court order. This distinction should be kept in mind.

 

When it comes to tenancies the starting point is this: a tenancy is an arrangement in which the landlord gives up his right to exclusive possession (that is possession in the sense of occupation) and hands it to the tenant in exchange for (usually) money. Ignoring the intervention of statutes such as the Protection From Eviction Act 1977, the tenant's right to exclusive possession is strengthened by two things:

 

1.The landlord's covenant for quiet enjoyment, which if not express is implied. (Theoretically, I suppose it may be expressly excluded, but I have never heard of this being done.) This covenant is essentially a promise by the landlord not to interfere with the tenant's enjoyment of the property. It is a right that arises as a matter of contract; a breach by a landlord of his covenant for quiet enjoyment is not a tort. The distinction is important because the remedies are different. Whilst in an action for both breach of contract and in tort the court may make an order restraining the defendant from repeating the action complained of, the measure or quantum of damages is different. Simplifying and without going into the matter in detail (something I am in any event not competent to do since I was never a litigator) where there is a breach of contract the measure of damages is the financial loss suffered. It is important to bear this in mind.

2.The rule that a landlord may not derogate from his grant, that is that he cannot give something with one hand and take it away with another.

 

There is some overlap between a breach of a covenant for quiet enjoyment and derogation from grant, and some actions may amount to both. However, no discussion is required for the purpose of this post and any further reference to a breach of a covenant for quiet enjoyment should be taken to include a reference to a derogation from grant.

 

In a tenancy agreement or lease a landlord may do one of two things, or may do both:

 

(a) impose an obligation on the tenant to allow access for specified purposes

 

(b) reserve a right of entry for specified purposes.

 

The effect is the same, which is that the landlord has what we may call “the landlord's right of access” - or at least that is what I hope to show.

 

There is no statute or any common law rule that says that the landlord's right of access is void or unenforceable. Indeed, in certain cases the law implies a landlord's right of access into the terms of a tenancy. It would be nonsense for statute to imply a right that was void or unenforceable. It cannot be the case that the right only exists where the court says it exists (like a right granted by the court under the Access to Neighbouring Land Act 1992) because there is no statute that allows the court to create such a right. Further, it cannot be the case that you can ask the court to enforce a right that does not exist. I think therefore that we can say that the landlord's right of access exists by reason of it having been agreed, whether expressly or impliedly, and that it exists from the moment that it is agreed.

 

If it has been established, as I hope it has, that the landlord's right of access must exist if it is agreed, we can then ask how that right is to be reconciled with the tenant's right to quiet enjoyment and, if some reconciliation can be made, what restrictions may be imposed on the exercise of the right. I think the two questions are related and can conveniently be dealt with together.

 

The right to quiet enjoyment is, like most if not all rights, not absolute. It has to be subject to exceptions, even if not agreed. Where an exception is agreed, whilst a landlord can with some justification point out that it was agreed, I think it comes down to whether the exception strikes at the heart of what a tenancy is – the right to enjoy exclusive possession in substantially the same way that a freeholder would enjoy it. However, discounting long leases of houses, the fact is that being a tenant is not the same as being a freeholder. It is therefore a question of whether the right is intrinsically reasonable and, if it is, whether the manner in which the right is exercised is also reasonable.

 

Landlords may require their tenants to allow access for two main reasons.

 

The first is to allow access (including access for inspection) for some estate management purpose connected with:

 

(i)carrying out such maintenance as is necessary to preserve the value of the property

(ii)complying with the repairing obligations owed to the tenant

(iii)complying with statutory obligations

 

It is not too difficult here to assess whether a landlord's right of access is being exercised reasonably. I cannot imagine a court refusing a landlord an order requiring the tenant to allow access if it is reasonable to do so.

 

The second is to allow access for inspection for some purpose connected with a proposed dealing with the property by the landlord which requires:

 

(i)allowing prospective tenants to inspect

(ii)allowing prospective buyers to inspect

(iii)allowing a valuer or surveyor to inspect

 

Apart from (iii), which should not be frequent, this is more problematic. For a right to allow prospective tenants and buyers to inspect to be useful it has to involve allowing all prospective tenants and buyers to inspect at short notice. A succession of people calling is soon going to amount to a significant annoyance even if you are easygoing; it is annoying enough when you have a vested interest in selling. A reasonable compromise may be to agree viewings should take place on only one day a week during an agreed period of an hour or two. It would be interesting to know what a court would decide.

 

Obviously in either case there is no problem if the tenant allows access, but what if he does not? Clearly a landlord or anyone acting on his behalf is ill-advised to force his way in. Whether when the tenant is absent and has objected to entry a landlord or his agent should let himself in is difficult to answer. I think it has to come down what the tenant can do about it. As I said above, the tenant can only ask for damages equal to his loss and it is difficult to see what the loss is if the premises are left as they were found. Whether if a landlord without permission but having the right to enter for a specific purpose persistently, but not unreasonably, enters for that purpose a court would order him to refrain from further entry I would not like to say.

 

All the above is all very well, but in practice and in the absence of harassment by either party, when the tenancy is short term no one is going to take the time and trouble to go to court. It really has to come down therefore to the parties behaving reasonably and not adopting entrenched positions, each bearing in mind that if he goes too far he may end up paying the other damages.

 

The above applies to residential property only – different considerations may apply to non-residential property.

Edited March 8, 2010 by Aequitas

[MrShed]

A most interesting post Aequitas.

 

If, as you surmise, these terms for access within the contract are in fact enforceable, one situation I can see arising is a landlord suing a tenant for lost rent, or lost value on property (perhaps having to sell later, or at a lower price).

 

Do you have any thoughts on this?

[Aequitas]

If, as you surmise, these terms for access within the contract are in fact enforceable, one situation I can see arising is a landlord suing a tenant for lost rent, or lost value on property (perhaps having to sell later, or at a lower price).

 

Do you have any thoughts on this?

 

Not really, except to suggest that it is a distinct possibility that such a claim may succeed.

[MrShed]

Aequitas another one to throw at you.

 

I am aware that there have been successful claims against landlords for the tort of trespass.

 

How does this apply in this situation - would this tort apply in a situation covered by the contract allowing access? Surely the contract cannot overrule this tort, as the tenant has exclusive possession and as such can request others (including a landlord) to leave at any time, or expressly forbid their presence?

[Aequitas]

I think that if a landlord reserves a right he cannot be trespassing at all if he enters for the purpose provided for. Whilst we talk about the tenant giving his consent for the landlord to enter, he has in fact already given it and the landlord does not need to ask again. The question is rather whether and in what circumstances the tenant can refuse entry.

 

It is of course quite possible that in entering where he has a right to do so the landlord may commit some tort other than trespass.

 

Any question of tort or anything arising under the Protection from Eviction Act or legislation having the like effect whilst important, is quite separate from, although it runs parallel to and overlaps with, the question of whether and to what extent the exercise of any rights of access may be a breach of the covenant for quiet enjoyment.

[MrShed]

I'm not entirely sure thats the case Aequitas.

 

Permission to be on property can be withdrawn at any time and for any reason.

 

e.g. a cinema can ask a customer to leave at any time. As soon as they have been asked to leave, if they refuse, they are committing the tort of trespass. This is despite the fact that the customer had previously been given permission.

[Aequitas]

You cannot though unilaterally declare that a term of a contract is no longer going to apply.

[MrShed]

Surely the tort outweighs the contract?

[kiptower]

of course it does, a contract however written cannot remove a persons legal rights,

[Aequitas]

Surely the tort outweighs the contract?

 

But what tort are you referring to?

[Aequitas]

of course it does, a contract however written cannot remove a persons legal rights,

 

You can waive or contract out of some rights, but not others. What rights do you think are involved here that a tenant might be giving up?

[MrShed]

The tort of trespass Aequitas.

[kiptower]

quote > "You can waive or contract out of some rights" , only if agreed by both parties at the start of the contract and its is clearly stated how it would affect the tenants rights if they agree to the waiver

 

you cannot just say well its in the contract and you signed it

[Aequitas]

The tort of trespass Aequitas.

 

If you have no right to enter and you do, it is trespass.

 

If you have a right to enter for a specified purpose and enter for that purpose it cannot be trespass. The entry is "licensed" by the agreement. Any subsequent refusal to allow access does not change the position.

 

It is possible to read too much into the fact that a tenancy grants exclusive possession. What this means is that the possession is not shared with anyone including the landlord. It does not stop anyone having rights which if exercised do not amount to sharing occupation. This has to be the case otherwise you could not for example reserve a right of way over a field when you let it.

[Aequitas]

quote > "You can waive or contract out of some rights" , only if agreed by both parties at the start of the contract and its is clearly stated how it would affect the tenants rights if they agree to the waiver

 

you cannot just say well its in the contract and you signed it

 

But what right are you saying here that a tenant is giving up?

[kiptower]

whereas a clause such as "we may enter at anytime we feel it necessary " or "we may enter the property once every 28 days to check the condition of the property"

infact a landlord must give 24 hours notice of their intention and be reasonable with tenant , e.g. if the tenant has other places to be etc , or a doctor / social worker or any other person that may be visiting the home on the day the landlord wants to attend, and a LL should by virtue of common sense only attend when the tenant is there, in case of claims of theft etc etc, yes there are times when the LL may believe the property is being damaged by the tenant etc , but cannot just barge in, there are legal procedure he must follow

There are exception i.e., in an emergency such as flooding /fire / structural problems of the building etc

These and many landlords that have tried to Inc on a contract which is

Contrary to the tenant’s legal rights.

Aequitas are you a LL or estate agent as most of your responses are biased towards what they would say / act on

And BTW up until a few years back our family had 37 properties ( houses ) that were let out and I was for a time active in the management .

[Aequitas]

whereas a clause such as "we may enter at anytime we feel it necessary " or "we may enter the property once every 28 days to check the condition of the property"

infact a landlord must give 24 hours notice of their intention and be reasonable with tenant , e.g. if the tenant has other places to be etc , or a doctor / social worker or any other person that may be visiting the home on the day the landlord wants to attend, and a LL should by virtue of common sense only attend when the tenant is there, in case of claims of theft etc etc, yes there are times when the LL may believe the property is being damaged by the tenant etc , but cannot just barge in, there are legal procedure he must follow

There are exception i.e., in an emergency such as flooding /fire / structural problems of the building etc

These and many landlords that have tried to Inc on a contract which is

Contrary to the tenant’s legal rights.

Aequitas are you a LL or estate agent as most of your responses are biased towards what they would say / act on

And BTW up until a few years back our family had 37 properties ( houses ) that were let out and I was for a time active in the management .

 

I am not a landlord or an agent. Just because my view of the law happens to run counter to the prevailing view does not necessarily mean that I am on the side of money here. I find that not only on this subject but on several others that misconceptions are rife. I happen to be a lawyer and I think it is important that people should know the law. The position as I set it out in my original post may be wrong, but at least I have set it out at length with legal argument and not relied on mere assertion. Once you know the law you know where you stand. Of course the law is not everything and practical considerations are important.

 

To restate my position succinctly to take account of the law and practical considerations:

 

If you make a statement such as : "A tenant can refuse his landlord access for any given purpose even if the tenancy agreement says he can have access for that purpose" then I say:

 

A. It is a statement that cannot be supported by legal argument

 

B. It is a statement that a landlord is wise to assume is true

 

C. It is a statement that it is not wise for a tenant to rely on as being true

[kiptower]

but then Lawyers, Solicitors, Barristers, and QC's get it wrong every day in Court.

 

so on that fact , its often down to ones interpretation of the Law, in how you see it , that is why we have the term "case book law" because a Judge made a decision on his understanding of the Law, which I am sure you know the meaning of the term

 

however we do have many members of the legal proffesion who post on CAG , and will often post a response in laymans terms to make it easy for people to read and understand, but they dont identify them selfs in general, but there are members of CAG who know who they are.

[45002]

May i ask a question about Keys

 

you all may have read thread http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/124982-how-safe-my-tenancy.html

 

about my tenancy(regulated) under 1977 rent act and access by my LL is a very sore point.

 

Before i stopped talking to my LL back in Oct 2008,my LL kept banging on about he was entitled to a spare set of keys to my flat and that his solicitor had told him this as well and on 2 occasion the estate agent told me that a LL was entitled to a spare set of keys to my flat.

 

I had changed my locks some 20 years ago as i found my LL coming out of my flat and with out my permission,if he still had keys he would clearly carry on going into my flat without permission and show estate agents and buyers around when im out

 

Is a LL entitled to a spare set of keys to a tennants flat under law ?

 

MARTIN

[Steve__M]

Referring to the OFT position:

 

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft356.pdf

 

They say that LL has a responsibility to check and repair a property (Housing Act 1988 ), and that a term in a contract that permits access to do this with 24 hours written notice would therefore not be unfair. There is also case law that suggests that landlord would have this right even if there were no term in the contract (because of their duty to maintain).

 

The OFT say they would object to a term that allows LL "excessive" access. Eg. for viewings. That implies that they would not object to a term that gave reasonable access.

[Aequitas]

but then Lawyers, Solicitors, Barristers, and QC's get it wrong every day in Court.

 

Half the lawyers who go to court lose! And judges have their decisions overturned.

 

so on that fact , its often down to ones interpretation of the Law, in how you see it , that is why we have the term "case book law" because a Judge made a decision on his understanding of the Law, which I am sure you know the meaning of the term

 

Agreed. You sometimes have to wait for a clear decision for the courts on a point of law before you can be certain.

 

however we do have many members of the legal proffesion who post on CAG , and will often post a response in laymans terms to make it easy for people to read and understand, but they dont identify them selfs in general, but there are members of CAG who know who they are.

 

I am not sure if you are saying I ought not identify myself as a lawyer. You did ask me if I was an agent, so presumably would have been happy for me to identify as one if I was. I mentioned it as it seemed necessary to explain at least in part to explain my motivation for the original post. You also seem to suggest that the post was not easy to understand. I point out that it starts with a summary and then invites those interested to to read on. It is of necessity long because there is a lot to explain. The reason I wrote the post (and posted it on other legal forums) was because people are constantly insisting that this is a black and white issue and I wanted something to refer to to save having to keep repeating myself. On the whole, if I am to believe what I am told, people find my posts clear and informative.

[kiptower]

firs steve you are correct BUT 24 hours notice is not just to allow the landlord to enter whenever he wants etc,

 

as for yourself Aequitas, normal practise would be to explain in simple / laymans speak so to say , making it easy for the normal person in the street to understand etc, but when advice is given in writing a letter etc , then of course the legal terms need to given

 

its for ones own protection to remain anon etc , walls have ears

[MrShed]

On the whole, if I am to believe what I am told, people find my posts clear and informative.

 

Without blowing smoke up your jacksey, I agree Aequitas - and I see it as certainly a very good post as a good basis for a discussion point.

 

I, personally, am certainly not a lawyer, but to me the whole thing seems to be at loggerheads.

 

I struggle to disagree with most of what you have said, but I cant agree that there is NO legal basis to argue that the tenant is not in his right to prevent access to the property.

 

The tort of trespass allows the tenant this right to my mind - although I absolutely agree that I do not personally know of a case law.

[Steve__M]

The OFT document referenced case law that gave a landlord a right of access for maintenance reasons. If a tenant refused such access then I presume he would be open to a claim for damages if a foreseeable event took place caused by lack of maintenance.

 

The other "reasonable" reasons for access would be to show the property to valuers, potential buyers and potential tenants.

 

I wonder whether there is a risk of a claim if a tenant refused such access agreed through contract. It may be hard for a LL to prove loss.

 

I don't think it would be fair or wise, though, for a LL to descend on a tenant in the last two months of a tenancy with a horde of estate agents, viewers and repair men getting the property in order. As it happens, my OH is currently preparing a rented house for sale, and is being extremely sensitive about it (not least because the tenant is a complete toss pot).

[Aequitas]

Is a LL entitled to a spare set of keys to a tennants flat under law ?

 

If the terms of the tenancy do not so provide - no.