Whether or not a landlord can enter his tenant’s property to carry out inspections, repair work etc even if the tenant is unhappy about this, is a hotly debated issue. In this post I examine the various options and situations that may arise, to try to provide some clarity. Lets take a look at the law first.

Jul 20, 2015. Sufficiency of Words – The Law of Property Act Cap 190 (The LPA) – The. Be undertaken. The parties have agreed the issue for determination as: Whether the joint tenancy was severed to create other interests in the property. Megarry & Wade, The Law of Real Property 6th ed paragraph 9-044 relied. Policy of harmonising the law of real and personal property effected by the 1925 property legislation. The latest edition of the leading textbook on land law, Megarry and Wade, Law of Real Property, has. Apply the words of Cotton L.J. In Re Harwood to trustees' powers,51 which would provide the following.

What the law says It is an established rule that all tenants enjoy what is rather confusingly called ‘ the covenant for quiet enjoyment’. This does not mean that they are entitled to a noise free property or that they are. It means that they are entitled to live in the property without interference from the landlord or anyone acting on his behalf (such as his letting agent).

There is also another legal rule which says that “ a landlord may not derogate from his grant“. This means, effectively, that a landlord cannot grant a tenancy and then expect to be able to treat the property as if it was his. So the law is (or should be) on the side of the tenant if he wants to keep his landlord out. “But”, I hear you say, “landlords DO have a right to go into the property.

It is theirs after all.” Then there are times when they will have to go in – for example when carrying out the annual gas safety check or to do the quarterly inspection. What about that? Is it the landlords property or the tenants? Lets take a look at the first issue first. Is it the landlords property? Well it is and it isn’t. Confusingly it is possible for several people to ‘own’ the same property at the same time, in different ways.

So for example: • Fred can own the freeholder • Leslie can own a long lease (from Fred) • Tanya can own a six month AST (rented from Leslie) • Nish (the neighbour) can own a right of way over the garden and • Megabank Ltd can own a legal charge or mortgage on the property So Fred and Leslie will ‘own’ the property in a way, but this will be subject to the rights of their tenants. For example, with the AST, Tanya will have the right to use and live in the property. Leslie will have given this away in exchange for the right to receive rent and get the property back when the tenancy ends (known as the ‘reversion’). In the same way that you cannot have your cake and eat it – you cannot rent out your property AND retain the right to go into it when you want. Always excepting that a landlord can enter the property in a case of genuine emergency – such as a fire. What about legal rights of access?

But what about those circumstances when the landlord is given a statutory right to do something – such as of the Landlord & Tenant Act 1985 which provides for landlords to be authorised to enter the property after giving not less than 24 hours written notice? Or clauses in the tenancy agreement which provide for the landlord to have a right to enter, to (for example) carry out the annual gas safety check or show round tenants during the last month of the tenancy? Lets start off by looking at the notice. The notice Any right the landlord has to go in will be dependent (save in a case of genuine emergency) on the landlord giving the tenant written notice first. Indeed, any clause which authorises the landlord to go in whenever he likes will be void under the Unfair Terms in Consumer Contracts Regulations 1999 – as it will be taking away a right which a tenant normally enjoys. The general rule is that the notice must not be for less than 24 hours.

However I would suggest that preferably the tenant be given considerably more than this. Ideally a couple of weeks. Then if the tenant wants to be present, he will have more time to arrange for this. If you send the letter by post, you may also want to back this up with an email – just so the tenant can’t claim that the letter got lost in the post.

And also of course because sometimes letters DO get lost in the post and you want the tenant to have a proper warning. Its important that you and your tenant are on good relations, and being considerate about things like inspection visits (which many tenants feel are a bit of an intrusion into their home) is an important part of this.

Assuming the notice has been given – lets now look at some scenarios. Some scenarios (For ‘landlord’ please read ‘landlord or his agent’). If the landlord gives notice and the tenant specifically confirms that they agree or that they have no objections. In this case, unless the tenant retracts this, the landlord can use his keys and go in. If he has no keys, then he will be dependent on the tenant letting him in. Note that there is no right per se for the landlord to hold (or demand to be provided with) a set of keys. It is assumed in these scenarios, that the landlord does hold keys.

If the landlord gives notice and the tenant does not reply, but has not objected in the past when the landlord has gone in. Here there will be a ‘course of dealing’ and the landlord will be entitled to assume that he can still use his keys to enter and do the inspection (or whatever). If the landlord gives notice and the tenant does not reply – where this is the first inspection visit. Here, if the landlord has made it clear to the tenant at the start of the tenancy that they will want to gain access for inspections or if this is very clearly flagged up on the tenancy agreement, it is probably safe for the landlord to use his keys to go in. However it might be prudent to try to contact the tenants first, maybe by phone or email, just to check. If the tenant gets in touch and says that he does not want the landlord to go in Here the landlord should not enter. He should try to re-arrange the appointment.

If the tenant is persistently obstructive he can: • Write to the tenant and point out that he (i.e. The tenant) will be liable for any deterioration in the property due to the landlord being unable to carry out repairs and • That if the tenant is injured by something damaged in the property, he will not be able to bring a claim against the landlord, as it is his fault the landlord was not able to get the damaged item repaired • The landlord may also want to consider threatening to apply to the court for an injunction and/or serving a section 21 notice and evicting the tenant in due course 5.

If the tenant does not get in touch but refuses to allow the landlord or his workman in to the property at the appointment time Again, the landlord will not be able to enter the property against the tenant’s wishes. The points made in 4 above will apply. In addition the landlord may also be able to claim against the tenant for the costs of the wasted appointment. Some tenancies will specifically provide for this, but it is arguable that in some situations it is chargeable anyway – if the landlord is able to show that this is a financial loss he has suffered as a result of the tenants’ breach of contract (i.e.

By failing to allow access at the proper time) – and that the tenant was aware that this would happen. For example the landlord will probably have to pay a call out fee to any workmen or gas installers attending to do work or carry out an inspection, whether or not they are allowed into the property.

Reasons why the landlord should not go in against his tenant’s wishes Even if the landlord were legally entitled to enter a property against his tenants expressed wishes (and although my view is that he is not entitled, it is possible that I could be wrong) there are some very good reasons why he should not do so. For example if you are a landlord and your tenant was upset to find that you had used your keys to go in: • This could trigger the start of a deterioration in landlord / tenant relations and your tenant may develop a hostile attitude towards you in future • The tenant may claim that you have broken or stolen something which belongs to him – for example he could claim that a valuable watch or necklace has gone missing and seek to blame you and claim compensation. You may find it difficult to prove otherwise, if you were there on your own, against the tenant’s wishes.

• The tenant could complain about you to the Local Authority tenancy relations officer – if you are an HMO landlord requiring a license this could affect future license applications • Your tenant may decide that he does not want to stay at the property beyond the end of the fixed term, putting you to the expense of finding a new tenant and the risk of a void. These are all undesirable! Rooms in a shared house The situation is slightly different if the tenant rents his own room and has the use, together with the other tenants, of the shared parts of the property. Such as kitchen, bathroom, lounge, hallway, passages etc. Here the tenants’ rights to keep out the landlord will apply to his room. They will not necessarily apply to the shared parts – as he does not have ‘exclusive occupation’ of those areas.

So a landlord will be able to enter the shared parts to inspect, do repairs and show round new tenants, preferably with notice, but possibly even without it. My view has always been that the landlord will have the right to enter the shared parts to carry out any ‘lawful’ activities but not otherwise.

So a tenant will be entitled to complain, maybe to his local TRO, if the landlord is constantly coming into the property for apparently no good reason but to spy on the tenants, but not if the landlord has come in to fix the taps or do an inspection visit with a new tenant. Whats your view? I think that sums everything up, but if you disagree or think I have left something out please leave a comment below.

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To get posts sent direct to your email in box About Tessa J Shepperson. The position can be summed up by saying that a landlord cannot enter without the tenant’s permission, but he can enter against the tenant’s wishes if he has the tenant’s permission. What needs stressing is that the tenant has given his consent if it is a term of the tenancy that the landlord can enter for a specified reasonable purpose. A landlord (acting reasonably and complying with any conditions attached to the right) can enter against the tenant’s wishes. In doing so he must not cause any damage nor should he enter if the tenant is in occupation and has expressed the wish that he should not enter.

However, a landlord (acting reasonably etc) who has a key and enters while the tenant is absent is entitled to do so even if the tenant has expressed a wish to the contrary. @Lawcruncher Do you have authority for this?

Even if you are right, I think a landlord would be unwise to do this for the reasons set out in the post. For example imagine that you are a young female tenant and you are scared of your landlord who has in the past made inappropriate advances towards you.

He of course thinks nothing of it other than that she should be grateful that someone finds her attractive. The landlord writes to the tenant saying that he will be carrying out an inspection on 14 January and the tenant writes back saying that she does not want him to inspect on that day. She does not say so, but her reason for this is she is terrified of him and wants her boy friend to be present at the inspection meeting with her.

Is it really all right for him to use his keys and go in? • Jamie says. I’m really surprised by the advice in scenario 2 and 3.

Regardless of what the law says (and it’s open to interpretation in this area), I think you’re on a hiding to nothing if you enter a tenant’s home without their formal acceptance, whether they are present or not. Aside from the obvious risks, it demonstrates a lack of professionalism and common courtesy. Our staff and contractors are instructed to never enter a property unless it is a genuine emergency or we have received proper authorisation from the tenant. You could walk in on a naked tenant (or worse, their young naked children), you could even find the tenant in flagrante or simply just sleeping off jet-lag after being on holiday, unaware of your notice letter sitting in the heap of unopened mail. I certainly wouldn’t like it if a stranger had been in my home without permission to have a nose around while I was away on holiday.

• Jamie says. @Jamie I agree absolutely that landlords and agents should be very careful about entering without tenants’specific authorisation. However on a strict legal basis, there is an argument that if the tenants have given permission in the past (e.g. In the tenancy agreement), it will not actually be illegal. So far as scenario 2 is concerned, I understand that a lot of agents do regularly go in and do inspections without further contact with the tenants after the formal letter and that many tenants are OK about this. It would be nice if there could be some guidance on this from the courts. • Lawcruncher says.

Neither position is supported by the authority of a case which settles the points in dispute. I have argued the position at some length here: An important point to consider is that if you agree that a landlord may go to court to enforce a right of entry you have to concede that he must have a right to exercise before he gets to court. What argument are you going to advance that the right cannot be exercised without a court order? There is no statutory provision to that effect. Even if the law is as I argue it is, a landlord is well-advised to proceed with caution. However, the starting point has to be to establish what the law is and work from there, rather than trying to make the law fit into what you think should be the case, however reasonable. There is the danger of falling into the same trap as the consumer movement did with bank charges.

• Romain says. One aspect of quiet enjoyment not mentioned in this post is that it is not absolute and that, as I understand it, it can be reasonably restrained by specific clauses in the tenancy agreement as long as it does not significantly interfere with exclusive possession. Certainly, reading various sources, this seems to be the legal position regarding commercial tenancies.

I am not aware that it could be different for residential tenancies, though I’m guessing that courts would likely be more restrictive on what ‘reasonable’ means when dealing with someone’s home vs. Someone’s place of business. Considering that the landlord’s right of access for inspection and repair is an implied clause by statute, I don’t think that it can be deemed unreasonable and thus, when exercised such right of access cannot be a breach of the covenant of quiet enjoyment.

In fact, I would suspect that this law creating an implied term re. Right of access was specifically intended to protect the landlord against claims of breach of the covenant of quiet enjoyment, or claims of trespassing, and to allow him to lawfully gain access.

@Romain that may be so but I remain deeply unhappy about the landlord being in any way entitled to enter a rented property against the expressed wishes of the tenant. I do not think that rules relating to commercial property should apply in this context. However I am not a Court of Appeal Judge deciding a case!

I think the situations outlined by Jamie and my own scenario of the terrifed female tenant (which is not unusual – I have advised female tenants who are in this situation) show just how intrustive a landlord entering without a specific agreement from the tenant can be. Ben – could this be deemed harassment do you think? What would you do in such a situation – ie where the landlord goes in without specific permission under s11(6) having given 24 hours written notice and finds an ‘unfortunate situation’. Eg sick children, couples ‘in flagrante’, female tenants alleging improper advances etc. Getting excited about the implied right of access in s11 L&T 1985 is only reading half the section. The section goes on to say that if a landlord is not allowed access then he has a defence to a claim for tenant disrepair. The implication of the Act is that the right of access has a quid pro quo of the barring of a disrepair claim not an absolute right to enter.

There is also a forgetting that the contract between a landlord and tenant is just a contract. To suggest that a clause in that contract could then overrule a clearly expressed objection to access made by a tenant is much the same as stating that a tenant who does not pay rent could be made to pay a fine. Both positions give excessive weight to a contractual term. The essence of any tenancy is the right to exclude all others.

This is the most fundamental thing that makes a tenancy a tenancy. If a court was to hold that the tenant could not do that because of specific clauses in the agreement that allowed a landlord to force access when they wanted to then all tenancies would be undermined.

Finally, there is an obvious practical argument. Many social landlords (and private ones) find themselves seeking injunctions for access for the carrying out of a gas safety certificate. The courts routinely deal with this business. If a landlord could simply walk in based on an implied or contractual right then these injunctions would not be required and the courts would have been quick to turn around and refuse to grant them. Another point to make about contractual clauses is that many tenants don’t read them, so you can’t really say that they ‘agreed’ to them in any meaningful way.

They have not actually applied their minds to them – they just sign the piece of paper because it is something they have to do to get the tenancy. That is why we have the Unfair Terms in Consumer Contracts Regulations. So the fact that a tenancy agreement may provide for the landlord to do an inspection on the 14th June does not entitle the landlord to barge in willy nilly, after the tenant has asked him not to. As David says, the right of the tenant to keep everyone out overrides almost everything. The only exceptions I can think of off hand are landlords in case of absolute emergency and the police acting under the power of a search warrant.

• Lawcruncher says. The point about the landlord having a defence if he cannot get access is only applicable where he needs the consent of a third party. Apart from that, it has to follow that if a tenant is in breach of covenant by preventing the landlord from entering, he can hardly sue the landlord for failing to comply with his covenant and argue that the landlord ought to have taken him to court to get an order for possession. I think the position is similar to where A insists that a right of way over his land cannot be exercised by B.

B can clearly exercise the right if A is not about. However, if A bars the way, whilst B still has the right he would be unwise to exercise it as the law discourages self-help as it may lead to a breach of the peace, injury to persons or damage to property. The point about a landlord finding himself in an embarrassing position does not hold a lot of water because a landlord is just as vulnerable if he enters with the tenant’s blessing. The point is, if anything, a recommendation never to enter unless the tenant is present, or indeed at all.

Is it harassment? Hmmm, it would depend on some additional factors before I would take it down a criminal route. If entry was persistent and if the landlord had been warned not to then yeah I would look at it as a breach of the Protection from Eviction Act 1977 but I would prefer to work with a local solicitor for the civil claim of Breach of Covenant for Quiet Enjoyment. Its quicker and the damages higher. On a more practical note I would simply advise the tenant to change the locks. This may well be a breach of the tenancy agreement but potentially it becomes a necessary precaution to protect the tenant and if the landlord tried to seek possession for breach of contract (ground 12 for ASTs) then this would open the way for a counterclaim.

• Romain says. Ben, we’re discussing about reasonable exercise of rights of entry, which are in fine for the benefit of the tenant, not extreme cases of, we all agree, unacceptable behaviour. Immediately suggesting to change the locks and to sue (for what?) sounds like the all too common anti-landlord rhetoric. Regarding case law, considering that there is a right of entry through statute, I think that requesting case law showing that the right stands is rather going the wrong way about it 😉 That said, of course any case law would be very useful! • Colin Lunt says. Law Cruncher Your comment, “but he can enter against the tenant’s wishes if he has the tenant’s permission” seems to be a tautology.

Effectively you are saying that the tenants is giving permission for the landlord to ignore the tenants wishes! That cannot be the case. A clause in a contract for the landlord to enter for a specific purpose at the time of the landlord’s discretion would in my view as a former TRO breach the Unfair Contract Terms regs as it would give the landlord the perceived right to interfere with peace and comfort. Some years ago I was asked to intervene on behalf of a tenant who was complaining about the landlord entering the property to inspect while they were at work. They would come home from work and find that the landlord had -Done the breakfast washing up -Put the crockery back in the “correct” cupboards -Perhaps moved a side table to where it had been at the start of the tenancy -Collected any newspapers and magazines and put them in a cupboard or bin. He would leave them a note and tell them that they were in breach of the standard form clause to keep the place tidy and in good order.

He threatened that if they persisted in their conduct he would have to evict them. I had to warn him that his conduct could constitute a breach of their rights.

They were frightened to leave anything out of place and worried abut returning home each day. I am not sure if “being nice” would constitute harassment which also requires the likelihood that the tenant would leave the tenancy but had it continued I would have taken it forward. In another strange case a landlady would call around to inspect with her new born baby and having done so might if it was baby’s feeding time would say to the tenant that she would breast feed it. The tenants 13 year old son would flee to his bedroom. This landlord would complain if anything was out of place and seems to have had a local neighbour report to her because she would often ask the tenant who a particular person was who had visited.

On one occasion when the son was to be given a police award for chasing a thief, the exact times of the police officer calling and leaving was reported back and wanted to know the name of the police officer so that she could check that what the tenant told her was true. That level of intrusion although not bully boy hard man tactics is a breach of quiet enjoyment. Oh every day as a TRO. • Lawcruncher says.

The suggestion that “the right of the tenant to keep everyone out overrides almost everything” implies that a landlord under a short term tenancy cannot reserve rights and procure covenants which landlords regularly reserve and procure when they grant long leases. “Exclusive possession” is about the degree of control the tenant has over the premises.

I have just Googled the words and the sites I went into at random all specifically mentioned that a tenant still has exclusive possession if the landlord has a right of entry. When it comes to freehold land, an owner occupier still has exclusive possession even if the neighbour has a right of way over his back garden. Similarly with derogation from grant and quiet enjoyment it has to be a question of degree. @ Colin Lunt The landlord’s behaviour you describe is clearly unacceptable.

What I am talking about is the very straightforward case of a landlord wanting access for a reasonable estate management purpose. What I mean is that if a tenant has entered into a tenancy one of the terms of which is to allow the landlord access for a reasonable purpose, he cannot withdraw the consent any more than he can declare that any other term which is not an unfair term or otherwise liable to be struck out is unenforceable. None of the terms implied by statute can possibly be unfair terms because Regulation 4(2) says they cannot. @Lawcruncher I cannot agree that the landlord has a right to go in, even if there is a very clear clause in the tenancy agreement, if the tenant withdraws his consent and says ‘no’.

(Its different if the tenant has not actually said ‘no’). My reasoning has always been that there are two conflicting rights and that the tenants right to exclude everyone (because he is the tenant) is greater than the landlords right to go in under the terms of the tenancy agreement. The tenant, by excluding the landlord from the property, will put himself in breach of the terms of his tenancy agreement and this may entitle the landlord to compensation, an injunction allowing him in, maybe even to apply for an order for possession.

But the landlord will be acting unlawfully if he goes in, with his keys, in the face of a prohibition from the tenant. But thats my view. Always has been.

But I may change it if you can point me to a clear Court of Appeal or Supreme Court decision which says otherwise. • Ben Reeve-Lewis says. This thread is turning out to be as amusing as it is depressing – a protracted version of the kind of debates I have dealt with for 25 years. The singular inability to accept the basic, if unpalatable truth, that for the period a tenant has lawful possession of the property they can exclude anyone they like. This is enshrined in statute through the Law of property act 1925 and through case law via Street v. Mountford 1986, where ‘Exclusive occupation’ is one of the three hallmarks of a tenancy. No amount of “Yeah buts” will alter this and yet still the ‘Ah but what if?” questions keep arising.

In the past couple of years I have done several presentations to landlord groups at conferences and local chapter meetings and each time at least two landlords will sidle up to me on the QT and ask “This deposit protection malarkey.is there any way around it?”. No there isnt and there isnt a way around exclusive occupation, which has been explained above by people better qualified than I. Just accept that a tenant’s right to exclude is one of the potential hazards of being a landlord, just as foot and mouth is a potential hazard for cattle farmers and virus’s are an occasional hazard for all computer owners.

It’s naive to expect a hassle free life and every job has it’s inconvenient,pain the arse problems • just saying says. “So far as scenario 2 is concerned, I understand that a lot of agents do regularly go in and do inspections without further contact with the tenants after the formal letter and that many tenants are OK about this.

It would be nice if there could be some guidance on this from the courts.” I speak to many tenants who are certainly not OK about this. Letting agents are routinely bullying tenants and HMO sharers and letting themselves in with the minimum notice, despite objections from one or all of the tenants.

I really do think it’s time that rented properties – especially HMOs – had sophisticated digital entry. I once stayed in wonderful gothic house in Oxford that had international students coming and going all the time, and the front door certainly had such a thing. Once you left the residence, your digital key was de-activated. DO send an email to your tenants, and a text aswell.

(not just a letter) because they might be on holiday you know! Lawcruncher says. “.it has to follow that if a tenant is in breach of covenant by preventing the landlord from entering, he can hardly sue the landlord for failing to comply with his covenant and argue that the landlord ought to have taken him to court to get an order for possession”. But the tenant is not sueing the landlord for “failure to comply with the lease” rather the tenant is – as I see it -asserting their right to quiet enjoyment and forcing the landlord’s (or letting agent’s) hand, if you they insist on entry. But I imagine a reasonable tenant (like me) wd only do this if that landlord or agent: a) was suggesting too many regular inspections. B) had broken trust by disregarding any previous objection. C) being altogether just difficult, doign what they like and just lording it over me Here’s another suggestion Tenancy agreements should be required, by law I think, to stipulate the no.

Of inspections-for-the-sake-of-it that are allowed. Tenants currently have to expend so much energy on managing this power-trip; from letting agents especially. Leave us alone, respect our privacy.

Treat us with respect; as you wd deserve to be treated. I think 2 inspections per yr, is enough. For anything else, pls. Ask nicely and be prepared to negotiate, wait etc. Your life does not take some assumed priority over the tenants. Don’t assume what you don’t know. Be ready for a “no” if you mess it up, and concede that you just might have to get a court-order in that case.

Thanks for the post Tessa, and for your rightful indignance on the right of quiet enjoyment. • Ben Reeve-Lewis says.

Well ‘Just Saying’, this raises another question. How many inspections is too many? I’ve seen tenancy agreements stipulating weekly or monthly inspections. My basic rule of thumb, without I admit, any legal basis is two per year as a matter of common sense.Anything beyond that and I get on the phone.

Last year our letting agent announced that they had commissioned a contractor to carry out regular inspections as they had been a bit lax in that department in maintaining scrutiny over their landlord client’s properties. We’re quite clean but added a bit of extra elbow grease to proceedings, like the school governors coming to visit. The contractor was here a total of 1 minute, threw a cursory glance from room to room, ignored the garden or the contractual need to keep the drains and gutters clean and swiftly moved on to the next £100′ worth of work. Easy money and they havent been back since. It seems to me to be a bit of an arbitrary thing. Ah now Ian, your comments hit at a matter of deep concern to me as a housing enforcer and a tenant, the deep distrust and often hatred between landlords and tenants. I read something today about how to ‘Tenant-proof’ your house, as if tenants are some form of disease.

I keep getting daily emails from ‘Landlord referencing’ about tenants to watch out for but nobody is posting stuff about landlords to look out for. Believe me, I could give you a substantial list but it would be called ‘Libel’. In my not inconsiderable experience of cannabis farms, and it’s really not ‘inconsiderable’ it isnt really tenants who do it. It is organised criminal gangs posing as tenants. In my area Vietnamese gangs Chinese triads and more latterly Romanians. Each farm is booby trapped with nails through floorboards wired up to the mains, pots of acid balanced on doors and powdered glass that put you in hospital once inhaled and even, the other day, a piece of wire stretched across the garden at face height, again wired up to the mains that if we had entered at night would have got all of us electrocuted.

The main give away sign is 6 months rent up front. Of course the letting agent is happy, the landlord is happy then watch this space.

None of this is the normal preserve of a standard tenant. Creative Download Support. DONT blur the lines between tenants with criminal intent and someone just trying to occupy a home • Lawcruncher says. I am not saying that the right to exclusive possession is not a requirement of a tenancy. What I am saying is that exclusive possession is not incompatible with a landlord having a right to enter for certain purposes. Any book on landlord and tenant law will confirm that. If you are saying that exclusive possession can only be absolute then you are saying that easements cannot be reserved over leasehold property. If a landlord has two properties with a shared drive and let one he would not be able to reserve a right over the drive to get to the unlet property.

Flats above and below each other could not have mutual easements. It is of course not the case, showing that exclusive possession is not absolute. Francis Davey, who I believe is a barrister, makes similar point to mine in this blog: • just saying says. Ben – it’s only libel if you name them! Plenty of criminal landlords probably bought their flats with drugs money. Except all the ones that didn’t, obviously.

If tenants believe there will be an inspection every 3 months, they might quickly start resenting you for abusing the power-trip and treating us like – as Ben says – a bloody disease. You want to look after your asset, sure. So take out really good insurance, and – as Ben says again – quit dreaming of a risk-free investment. You might lose some time and money; them’s are the risks. @Lawcruncher “Any book on landlord and tenant law will confirm that” is not really very specific – which book? What page, what are the supporting authorities?

There is a difference between a landlord exercising his right to use a drive to access a property and using his keys to go into the property after the tenant has asked him not to. I would be surprised, very surprised, if the Court of Appeal / Supreme Court in any case were to treat them in the same way. If I were a tenant I would not be too worried about my landlord walking across my garden from time to time, even if he was not supposed to, but I sure would not want him walking into my living room when I was not there against my wishes.

Yes we had a bit of a ding dong with Francis on that post, but if you read it through to the end you will see that we all came to an agreement in the end. • Lawcruncher says. I live in Spain and copies of “Woodfall” are a bit think on he ground. I do though have a copy of “Megarry & Wade” which says: “The tenant is under an obligation to permit the landlord to enter and view the state of repair of the premises in cases where the landlord is liable to repair them. (Saner v Bilton and Mint v Good) The landlord may also have a statutory right to enter in certain other cases. (Quotes the statutes) But apart from these, unless he has reserved a right of entry, he has no right to enter the premises during the term, however good his reason, (Stocker v Planet B.S.) for he has given the tenant the right of exclusive occupation as long as the tenancy endures.” That is clear: the tenant has exclusive occupation, but that does not stop him agreeing the landlord may enter for certain specified purposes. The draftsman of section 16 HA 1988 clearly believed that a tenant’s right to exclusive possession is not absolute.

Of course a right of entry is not an easement. My point in referring to easements was this: (a) if the tenant’s right to exclusive possession is absolute the landlord cannot reserve easements (b) a landlord can reserve easements therefore the tenant’s right to exclusive possession is not absolute (c) since the tenant’s right to exclusive possession is not absolute the landlord can reserve a right to enter We can immediately qualify (c) by saying that it is a question of degree.

The right reserved must not be such that its exercise would be a derogation from grant or a breach of the covenant for quiet enjoyment, nor must a reasonable right be exercised in such a manner that it amounts to derogation from grant or a breach of the covenant for quiet enjoyment. I quote again from M & W: “To constitute a derogation form grant there must be some act rendering the premises substantially less fit for the purposes for which they were let.” The word “substantially” indicates that the principle is not absolute. Three questions: (a) If rights to enter are not enforceable how do we explain their presence in so many precedents prepared by experts? (b) What is the status of statutory provisions such as section 16 HA 1988? Are you saying that they only apply at the will of the tenant? It surely cannot be the case that a provision implied by statute is unenforceable.

(c) I think we can agree that if a landlord needs to enter and seeks consent and the tenant gives it, he can enter. What is the objection to a tenant giving his consent before the landlord needs it so that he can enter when he needs to? (Assume that entry is for a reasonable purpose, notice is to be given and entry made at a reasonable time.) • says.

@Lawcruncher I would answer your three questions as follows; a). A right to enter is enforceable – but as this relates to residential accommodation it will only be enforceable via the courts. So the landlord will need to go to court to get an injunction. As David said – if this was unnecessary the courts would have refused to grant them. Court time is precious and they would give short shrift to claims which they considered unnecessary. The provision is enforceable.

But by getting a court order, not by using your keys and going in when the tenant is out. That is if the tenant has told you he does not want you to enter. If the tenant has agreed or impliedly agreed then the landlord can (probably) go in. For readers who do not know what HAs11(6) is, its the one that says landlords can have access for inspections and repairs Note BTW it says that ‘the tenant shall afford to the landlord access’ which implies that there must be some measure of agreement by the tenant, it does not say that the landlord can just go in willy nilly after giving the notice. I don’t think there is a problem with a tenant giving agreement in advance. Indeed in our Gas Access Kit we give a precedent which can be used. However if the tenant changes his mind and revokes it, my view is that the landlord cannot then go in.

• Lawcruncher says. (a) What statute says that a right to enter residential property can only be exercised by leave of the court? David’s point is, with respect, a non-point. First, anyone is entitled to go to court to seek a declaration that they have the right they believe they have.

Secondly, if someone is preventing you from exercising a right you can go to court to get an appropriate order. A sensible landlord who needs access goes to court because if he enters against the tenant’s wishes he risks falling foul of the criminal law. (Question: In an action against a tenant would you ask for costs? If it is the case that the right cannot be exercised without the leave of the court the tenant cannot be at fault before the leave is obtained.

Would it not be unfair to require him to pay the costs if he has declined to let the landlord in when he had no obligation to?) (b) If the court enforces a right that must be an indication that the right exists. If the right exists it can be exercised. Even if you are right that a landlord cannot enter willy-nilly, that does not mean that a tenant has complete discretion as to when the landlord may enter – that would effectively render the provision useless. (c) I am all in favour of consumer laws which strike down unfair terms, but I am uncomfortable with the general proposition that a party to a contract can change his mind about some provision he has agreed to. If a tenant can say he is not going to abide by a provision giving a landlord the right to enter where does it end? • Colin Lunt says. RE Ian’s comment about access to carry out HMO standards provisions.

Ground 14 of the Grounds for Possession (1988 Act) has been amended by the Anti Social Behaviour Crime and Policing Act 2014 to allow the landlord the right to seek possession “in connection with the exercise of the landlord’s housing management functions, and that is directly or indirectly related to or affects those functions”. The reference to the landlord’s functions relates to those obligations that a landlord has, for example, under HMO or other licensing regulations or statutory obligations.

(The latter paragraph is mine, not in the Act) The landlord can therefore warn a tenant that possession may be granted if they refuse access for a repair or to implement changes required by the relevant authority. The tenant would also risk a costs order against them. In addition under the HMO Management Regulations 2006 a person must not do anything to obstruct the landlord complying with he management functions. However, it does not allow the landlord to directly and unilaterally enforce the right; it is subject to the adjudication of the Court.

The failure of the tenant to allow access can also be used as a defence against any threat by the LA to remove the landlord licence for failure to repair. These rights must be enforced lawfully. • Lawcruncher says. The agreement in the case of Street v Mountford contained the following clause: “The owner (or his agent) has the right at all times to enter the room to inspect its condition, read and collect money from meters, carry out maintenance works, install or replace furniture or for any other reasonable purpose.” The existence of the right did not prevent the court from holding that the arrangement was a tenancy. The following webpages contain statements to the effect that a right to enter is not incompatible with exclusive possession: “It should be noted that although exclusive possession normally gives the tenant the right to exclude everyone else, including the landlord, from the premises, the lease may reserve the right for the landlord to enter the premises on certain occasions, eg, to inspect the state of repair of the property. Such a right must be exercised at reasonable hours and in a reasonable manner and does not prevent the tenant having exclusive possession, though a right for the landlord to come and go as he pleases without the tenant’s permission would have this effect.” “This right to exclude others is compatible with (and may even be reinforced by) the fact that there are limited exceptions (such as the reservation of easements or a landlord’s right to enter for certain limited purposes) (Street v Mountford [1985] A.C.

If, however, the landlord’s obligations require unrestricted access on his part then there is no exclusive possession and the agreement is a contractual licence (Westminster City Council v Clarke [1992] 2 A.C. 288).” “The fact that the landlord has reserved the right to enter in given circumstances, e.g.

To inspect or to carry out repairs, is not necessarily inconsistent with exclusive possession.” • just saying says. @Lawcruncher You may be able to find wording in statutes and law books which to your mind ‘proves’ that a landlord has a right to enter a property against a tenants wishes.

However if these were ever considered in this context by the Court of Appeal or the Supreme Court, I would be very surprised indeed if they upheld your interpretation. As I have already said, landlords rights ARE enforceable but if the tenant objects to them going in, the right of access should be enforced through the courts, not by landlords using their keys to go in willy nilly. There is a great deal of difference between exercising (say) a right of way, and going into someone’s home. I also think it is verging on the irresponsible to do anything which might encourage landlords to use their keys to go into a tenants property against his (or more worryingly her) wishes.

And if you are not saying that landlords should be entitled to use their keys to go in against a tenants wishes – what are you talking about? I think we will have to agree to disagree. • Lawcruncher says. If a lawyer is accused of being pedantic it can mean he has presented arguments difficult to refute! If anyone reads my lengthy exposition on LandlordZone he will see that I certainly do not advocate landlords entering will-nilly. I think that in practice both Tesaa and I would end giving clients more or less the same advice.

If I were to sum up the advice I would give I would say: If a landlord asks: “I have a tenancy agreement which says I can enter to inspect the state of repair if I give the tenant 24 hours’ notice. I have given the notice but the tenant says I am not to go in.

I have a key, can I let myself in?” My answer would be: “In certain circumstances, theoretically, yes. However, I would not recommend it.” If a tenant asks. “I have a tenancy agreement which says the landlord can enter to inspect the state of repair if he gives me 24 hours’ notice.

He has given the notice. Can I stop him coming in?” My answer would be: “Theoretically, no. However, there is probably not a lot the landlord can do if you refuse to let him in. Bear in mind though that if you do not let him in you are in breach of contract and consequences may flow from that.” The reason I have become involved on many forums discussing this problem is certainly not to encourage landlords. My main concern is for tenants who do not have the benefit of legal advice. Tenants need to know that the advice they get all over the internet that there is no question but that they can slam the door in the landlord’s face is questionable. @Lawcruncher I can live with that.

In the post I do give some advice, in scenarios 4 and 5, on the type of thing the landlords can say to tenants about the consequences of their actions. This blog is about straightforward advice in plain English.

I prefer not to delve too much into abstruse legal points as they tend on the whole not to be relevant to real life. And they make everyone’s eyes glaze over and if I were to do that no-one would read the blog! People quite like an argument though • just saying says. “Such a right must be exercised at reasonable hours and in a reasonable manner and does not prevent the tenant having exclusive possession, though a right for the landlord to come and go as he pleases without the tenant’s permission would have this effect.” This may support your view that the right to inspect does not prevent exclusive possession, but it also suports the orignal discussion in this thread, i.e. The landlord must exercise that right with the tenant’s permission. At risk of throwing more fuel on this fire I am just reading through the recently published Model AST Agreement issued by the CLG this month.

The CLG guidance notes on emergency access by the landlord states; “Guidance Note: Emergency access by the landlord. An emergency would include something which, if not dealt with by the landlord immediately, would put at imminent risk the health and safety of the tenant or members of his household or other persons residing in the vicinity.

It does not apply to carrying out routine repairs.” • Romain says. Here is an extract from the just published Private Rented Sector Code: 4.3.7 The tenancy agreement may stipulate the procedure for the routine inspection of the property by the landlord or agent.

If this is not stated in the tenancy agreement, the property must be visited at normal times of the day, provided that reasonable written notice (at least 24 hours) has been given to the tenant. If the tenant refuses access, you have no right to enter the property without a court order. To enter the property against the wishes of the tenant may be considered harassment.

The tenancy agreement should contain provision for entry in emergencies. In the event that you hold a spare key, entry should only be with the express consent of the tenant or in the case of a genuine emergency. Forced entry should only be considered: • – if it is an emergency event such as a fire • – in the event of problems with gas, electrics or escape of water that pose real risk of injury or significant damage to the property or adjoining properties; or • – in the event that the tenant is unavailable or does not respond and you have genuine reason to believe the property has been abandoned. The code is here: • Romain says. I’m sorry but that’s not a legal reference.

It contains the same contradiction as I highlighted above: “entry should only be with the express consent of the tenant or in the case of a genuine emergency”. As said, I don’t see any basis to ignore explicit withdrawing of consent in one case but not the other, neither do I see the basis for ’24h notice’ becoming ‘express consent’. Could it be a case of the same thing being repeated so many times that it is assumed to be a fact?

(Superstrike, anyone?) • Jamie says. That is fine, but only up to a point. If it gets to court the “purely legal arguments” will be all important. It is also important to try and get to grips with what the legal position is as it should underpin any practical advice. As Romain suggests, the idea that a tenant has complete control has been bandied about so often that it has become accepted by many without question. Not wholly unreasonably, some take the view that a tenant should have such control, but believing something ought to be the case does not make it so under the law. That is the trap that the campaign against bank charges fell into.

The “tenants can always refuse entry” camp’s position is predicated on the assumption that exclusive possession / quiet enjoyment / derogation from grant are all absolute. I think I have shown that that is not the case. If it is to be argued that a concession made by a tenant in an agreement allowing the landlord a reasonable right of access is unenforceable, even if exercised reasonably and in accordance with any attached conditions, something else needs to be brought in to support it. In particular, there needs to be a very strong rationale for striking down provisions implied into an agreement by statute. When I was out the other day and crossing the road I came up with what I think is a reasonable analogy. If someone asks: “Am I entitled to drive over a crossing if the light is green without seeking the permission of any pedestrian waiting to cross?” the answer is “Yes.” If the question is: “Am I entitled to drive over a crossing if the light is green and someone is standing in the middle of the crossing waving his arms?” the answer is “No.” • says. “That is fine, but only up to a point.

If it gets to court the purely legal arguments will be all important.” Agreed, but I would far rather take the practical approach to avoid it getting that far in the first place, especially when the government guidelines contradict your point of view. How is your argument going to protect one of my agents when they find themselves in court accused of theft, or worse?

For those reasons and to maintain common courtesy and good customer relations, I will never enter a property without 24 hours notice and the tenant’s prior acceptance. • Lawcruncher says. I fear the point of my analogy has been missed. The point is that just as a pedestrian has no right to require cars to stop when the light is green, but can nevertheless stand on a crossing and stop cars from progressing, so a tenant has no right to deny a landlord access when he has agreed to give it, but can nevertheless physically prevent a landlord from entering. Further, just as a car can proceed when the light is green and the coast is clear, but cannot proceed if the light is green and the coast is not clear, so a landlord with a right to enter can enter if he is able to do so without damage to property, injury to persons or giving rise to a breach of the peace, but not otherwise.

• just saying says. The purpose of this blog is to provide information, comment and discussion.

Although Tessa, or guest bloggers, may from time to time, give helpful comments to readers' questions, these can only be based on the information given by the reader in his or her comment, which may not contain all material facts. Any comments or suggestions provided by Tessa or any guest bloggers should not, therefore be relied upon as a substitute for legal advice from a qualified lawyer regarding any actual legal issue or dispute.