I was contacted last week by a landlord looking to gain access to their buy-to-let property. They sounded pretty desperate. They’d given the tenant 72 hours notice by text but had heard nothing. What should they do?
Gaining access to your buy-to-let is a pretty fundamental requirement. What happens if suddenly your property springs a horrendous leak and the plumber needs access? But what legal rights does a landlord actually have of gaining access to their treasured investment property?
Legal lowdown - The tenancy agreement
Firstly, gaining access can be more complicated than you might think.
Most tenancy agreements including Property Hawk’s free AST has a clause that allows a landlord to gain access to their property by giving prior notice.
In this case the clause states:
The tenant covenants:
“To permit the Landlord or the Landlord's Agents or contractors upon giving reasonable notice to enter upon the property at all reasonable times for the purpose of repairing and decorating the property or of carrying out and completing any structural or other necessary or proper repairs to the property or of examining the state and condition of the property and for the further purpose of examining the state and condition of the interior of the property and the fixtures, fittings and effects.”
Looking at the tenancy agreement this all sounds pretty straight forward. You send the tenant a text giving say 48 hours notice that you need to come round. They reply promptly saying that ‘s fine and dandy and we are all happy. Generally in my experience that’s what happens.
But what if you hear nothing?
Firstly section 8 of the Landlord and Tenant Act 1985 contains an implied covenant that landlord or any body authorized by him may get access by giving 24 hours notice in writing.
“(2)The landlord, or a person authorised by him in writing, may at reasonable times of the day, on giving 24 hours’ notice in writing to the tenant or occupier, enter premises to which this section applies for the purpose of viewing their state and condition.”
It’s worth noting if you try to give notice by text as the legislation specifically mentions it needs to be in writing. The fact that email and texts probably hadn’t been invented when the legislation was drafted has nothing to do with it. When giving notice in writing you need to allow 3 days for postage to ensure that notice has been duly given.
It’s important to note that the implied covenant in the Act allows access to the property at all ‘reasonable times’ but most importantly it must relate to ‘the viewing of the state and condition.’ This means is not the same as gaining possession.
The law about gaining access is all a little hazey. Under the Landlord and Tenant Act the tenant enjoys a right of quiet enjoyment of the property. Some would argue therefore that a landlord entering their property breaches this covenant and constitutes harassment.
My interpretation of the law is that the implied permission allows the landlord to enter their property as long as the tenant doesn’t specifically object.
The tenants objects to your entry
The other scenario is that your tenant raises an objection to you entering your property. What are your rights then? Well part of the problem is that as I understand it the Landlord and Tenant Act only grants you the landlord an implied permission not a right of access. Therefore, if the tenant denies you access then this prevents you gaining access. Bugger!
In that scenario you really are on a ‘sticky wicket’ to use a cricketing metaphor.
The law doesn’t specifically preclude you from entering the property but you run the potential risk of this being classed as trespass and you being liable to a charge of harassment. The defence against the charge of harassment under the Protection from Eviction Act is that “he is not guilty of this if he proves that he had reasonable grounds for doing the acts”
As you can see the situation is as clear as mud. The ideal scenario is that a landlord gains permission and therefore avoids this legal grey area.
In this situation I would advise that the landlord needs to go down the route of gaining possession through issuing a section 21 notice.
Have you had problems gaining access? Let us know by sending us your comments.
I had a problem with a tenant who I was evicting. The property was a flat with no windows onto the corridor, so I had no idea if they were in or not. I had to have a new gas cert done but they wouldn't open the door to the gas man. I asked the question about legalities of not providing a current gas cert but no one, not even the insurance company, could give me any useful advice. I wasn't allowed to break in, I wasn't allowed to do anything that might be construed as harassment and eventually, I had to record x3 attempts to get in and leave that notification with the council, then start court proceedings to give me permission to gain entry. All at my expense of course.
I was going through that process when they left, however, even then, they left furniture and an abandoned property notice had to be posted on their door. I had to legally wait another couple of weeks before I could remove the rubbish that they'd left. That of course was just wonderful as it was an advert for squatters. The door was kicked in. Fortunately a visit to the property with a locksmith was at a time when it was empty and the lock was changed. Now the cleaning up process is underway.
We need far more support from the law. The majority of landlords are nice people. Of course there are exceptions but the popular perception is that all landlords are from the Rachman bloodline and therefore poor innocent tenants have to be protected. Not so. We are trying to make a living and go about our business quietly. We accept tenants who present as reliable people with good references, but this isn't always the case when they get the keys in their hands. Then we can't get them out again and they are free to use and abuse our property with the complete protection of the law. God help us if they then have children and another whole raft of human rights legislation comes into play. "Your landlord wants to evict you for non payment of rent and you have two children? What a dreadful landlord. - have another six months in the property Mrs Tenant." I was actually warned once not to tell a judge at an eviction hearing, that I was a professional landlord, as he wouldn't be very sympathetic to the tenant. ( completely true)
I think that if there were fewer 'human' rights available to everyone, things would be a lot better. With the DPS only allowing me £25 for an iron burn in a new carpet, there is no incentive for people to treat your property nicely. Eventually they leave when the filth becomes too much and they can start again with someone else's property. There is very little incentive for a landlord to take those tenants to court - its a waste of the court fee as you can't get the money back - so they pass on to the next unsuspecting landlord. If there were consequences, there would be fewer problems. People need to be forced to take responsibility for their actions, but while 'human rights' and 'the law' protect tenants, some will continue to be as they are now. Why wouldn't they?
I personally think we should all get together and buy an island then ship tenants there until they see the error of their ways. Its not an original idea - its been done before!!!!
Have a good w/end Chris
Signed an embittered landlord
My tenant has been in arrears and had with held rent some months because of some excuse about his expense of getting married! So this tenant is in arrears of some £960 his tenancy expired 21st October 2011.
I've served Section 21 notice on them at the time of signing the contract last year which did not affect until after 22/12/10 (I believe there is some rule that the notice cannot take affect