Landlord Rights To Access Their Property During a Tenancy

25 days ago
Landlord Rights To Access Their Property During a Tenancy

There will likely be times during a tenancy when you, or
your agent, needs access to the property. This could be for repairs, legal
obligations, or even viewings for new tenants.

However, it’s important to remember that tenants have the
right to peaceful enjoyment
of their home (known as “exclusive
possession”). This means they can refuse access in certain situations.

Trespassing on your property without permission is a
criminal offence, and the tenant could take legal action against you.  Repeated attempts to enter without permission
could also be considered harassment.

This guide will explain:

  • When you can legally access the property
  • How to get permission from your tenant
  • What to do if your tenant refuses access
  • Contractual Rights of Access

The best way to ensure access is to have a tenancy agreement
that clearly outlines the reasons you might need to enter the property. This
gives you a contractual right and provides clear instructions for the tenant.

A well-drafted tenancy agreement
will specify this.  Having a clear
agreement also means refusing access would be a breach of contract, potentially
allowing you to claim damages.

Accessing with Tenant Permission

Even with contractual rights, it’s always best to ask your
tenant’s permission before entering the property. This is especially important
if you don’t have an explicit right in the agreement.

Make Permission Clear

Don’t assume permission has been granted.  If you plan to rely on their agreement, make
sure they fully understand why you need access.

For extensive works, get written confirmation from the
tenant. This should detail the work being done and the expected timeframe.

Access to Communal Areas in HMOs

For HMO (House in Multiple Occupation) managers, access to
communal areas is crucial to fulfil management duties. Luckily, using room-only
tenancy agreements means tenants only have exclusive possession of their room,
not communal areas. This allows access without needing permission beforehand.

However, it’s still good practice to inform tenants when you
or your agents will be entering the property and to avoid unnecessary access.

Access for Repairs

The law implies three rights of access for repairs in every
tenancy agreement:

Section 11 of the Landlord & Tenant Act 1985: This
allows access to inspect the property’s condition and state of repair. You must
give written notice of at least 24 hours.

Homes (Fitness for Human Habitation) Act 2019: This grants
access to inspect the property’s condition and state of repair. Written notice
of at least 24 hours is required.

Housing Act 1988: This implies a term that the tenant allows
reasonable access for repairs. Similar provisions apply to regulated tenancies
under the Rent Act 1977. Again, 24 hours’ notice is needed.

Access for Improvements

There’s a clear distinction between repairs and
improvements. If you want access for improvements, you’ll need to have it
clearly stated in the tenancy agreement or rely on the tenant’s permission.

What if the Tenant Refuses Access?

While refusing access is a breach of contract, entering
without permission is a criminal offence. 
Therefore, it’s not advisable to enter the property if access is denied.

Here’s what you can do:

Remind the Tenant of their Obligations: Inform them that
refusing access is a breach of contract and could make them liable for any
resulting damage.

Consider Legal Action: Depending on the urgency, you might
consider repossessing the property or seeking an injunction to enforce the
contract and gain access.

Access for Gas Safety Inspections

Obtaining access for gas safety inspections can be
challenging in the social housing sector but less so in private rentals. While
the regulations don’t explicitly grant access rights, you can usually rely on
clauses allowing access for repairs or the right under Section 11.

What if the Tenant Refuses Gas Safety Access?

The Health and Safety Executive has stated they won’t
prosecute landlords who make three genuine attempts to gain access for gas
safety inspections.  However, this could
prevent you from using a Section 21 notice if the certificate expires.

It’s crucial to document each attempt to gain access and how
the tenant refused.

Letting Viewings

Always seek permission from your tenant before arranging
viewings. While the tenancy agreement might state they must provide access,
it’s usually easier to wait for the tenant to vacate the property before
conducting viewings. Enforcing access clauses through court can be complex and
expensive.

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