Accessing your property and tenants’ rights
In this chapter we cover tenants’ rights and how to access your property for an inspection, you’ll also learn what to do if you are refused entry
It’s an irony that in English (and Welsh) tenancy laws, on the one hand landlords are under a statutory duty to maintain a residential rental property in a safe condition with services in working order, but on the other hand they have no automatic right of access.
Gives landlords a right of access to carry out these obligations, as does the 1988 Housing Act, yet the centuries old common law covenant of “quiet enjoyment” and the principle of “exclusive possession” give tenants the right to exclude everyone, including the landlord. These principles are implied in any tenancy, regardless of whether they are written into the agreement.
The Landlord and Tenant Act 1985 says that in addition to access for repairs, the landlord also has a right to view the condition of a property.
The landlord, or someone acting as their agent, can gain access to the property at a “reasonable time of the day” but only after giving the tenant a minimum of 24 hours’ notice in writing.
Most residential tenancy agreements will have written into them the (contractual) landlord’s right of access for four specific reasons:
Regular inspections
Repairs and maintenance
Statutory checks (gas and electric)
Viewings towards the end of the tenancy
Although the Act states that tenants are entitled to at least 24 hours’ notice in writing, clearly this would be unreasonably short notice and it’s best to give at least a week’s notice.
To maximise transparency it is also preferable that tenants are present for inspections – you don’t want to be accused of taking things, moving or breaking anything or soiling carpets. Agreeing times which are convenient for your tenants, for example outside normal working hours (although obviously this would not be possible for repair work), is a good idea.
Remember to always document everything in writing: appointment times, the results of the inspection and any follow-up work needed.
Whilst the majority of tenants are reasonable and will allow access for any of these reasons, in compliance with their tenancy agreement, in some situations landlords will experience difficulties gaining access, even for critical safety issues such as the statutory gas checks and electrical checks.
Generally, around two-thirds of tenants are happy with landlord inspections and will cooperate fully. Of the remaining third, some will only allow visits while they are present, while others may refuse outright.
Remember, any landlord who enters a property without permission is putting themselves at risk of legal action by the tenant.
Landlords who find themselves in this situation have the option of applying to the courts for an injunction – a court order forcing access.
But the cost, delay and uncertainty of success going down this route is often a major barrier, and in any case this sort of tenant would likely deny access every time it is needed. So most landlords would rather apply for a possession order and have done with it.
Given that a landlord could be open to prosecution when denied access for essential repairs and critical safety checks, the local authority should be made aware of the situation.
Since this is the authority that would ultimately prosecute the landlord for a criminal offence, it’s important that the issue is recorded formally so that the local authority can see that the landlord or agent is doing everything possible to comply with the law.
In a genuine emergency, a landlord can legitimately and legally gain immediate access to a rental property. Emergency access should obviously be used on very rare occasions involving, for example, fire, flood, a smell of gas or dangerous structural damage.
A landlord entering a property without permission under any other circumstances, and without a court order, is leaving themselves open to an accusation of the offence of trespass and harassment.
The tenant’s right of quiet enjoyment means that they can legally change the locks and there’s not a great deal anyone can do about it. The tenant is otherwise under no obligation to give a set of keys to the landlord, unless it is specifically stated in the tenancy agreement.
Often it is in the tenant’s interests for the landlord to have a key for emergencies.For example, if tenants lock themselves out, if they agree to inspections without the landlord or agent being present and for repairs and safety checks.
If you try to use force or other means of coercion to gain access to your rental property, or you visit too frequently, perhaps at unsocial hours, you could be accused of harassment.
