One of the main causes of tension between landlords and tenants is a misunderstanding of the landlord’s right to inspect or view properties that they own. When it comes to both landlord rights and tenants rights in England & Wales, it can sometimes feel as if the rights you both possess are in direct conflict with each other, yet provided that both you and your tenants understand your positions, disputes can be avoided and any tension quashed before it arises.
When you let a property to a tenant, it is important to understand what both your landlord responsibilities, and those of your tenants. It is common practice for a written tenancy agreement to attempt to set out these responsibilities clearly. Unfortunately, one impact of the ever changing legislative landscape is that tenancy agreements are continuously adapted in order to address the changes and subsequently, your rights and responsibilities are not always clear.
It’s perfectly reasonable to assume that, as a landlord with rights to the properties you own, there will be times when you want or need to visit a property you let, yet it’s important to recognise these visits cannot be made whenever you feel appropriate. In accordance with tenant and landlord law, you’re required to give 24 hours notice before you visit, otherwise your tenants are within their legal rights to refuse you entry (except in very specific circumstances).
One of the key principles to a tenancy is exclusivity. In other words, your tenants have an exclusive right to the property and the ability to exclude all others, including you - the landlord. Of course throughout the duration of their tenancy, there may be occasions when you wish to access the property, for varying reasons, and it is important that you know, as a landlord, what your responsibilities towards your tenant are.
Knowing your rights, and your tenant’s when it comes to access can help to contribute towards a positive rental relationship, while ensuring your tenants safety and maintaining the upkeep of the property.
With this in mind, below we provide some general information that may help you answer some frequently asked access rights questions to make sure you’re in the know.
What are my rights of access to my rental property – Landlord Rights FAQs
1. The Contract - "What is” and a ‘covenant to quiet enjoyment’
A tenancy agreement is a contract that sets out the terms agreed between a landlord and their tenant.
When reading the tenancy agreement, you will probably have come across a term, usually within the Landlord Obligations section, that you will allow your tenants quiet, uninterrupted use and occupation of the property. This is sometimes referred to as a ‘covenant to quiet enjoyment’ and is an established rule in law.
Even if this is not detailed in the tenancy agreement, the law implies it anyway. This covenant means that your tenants are entitled to enjoy the use of the property without interruption from you, or anyone acting on your behalf.
Whilst reading the tenancy agreement, you may have also seen a term that gives you a right to enter the property. Now, whether a landlord has the right to enter the property without a tenant’s permission is a much-debated topic. Given the nature of the topic, the varying circumstances as to why you wish to gain access, and the reasons behind a tenant refusing permission, there is no “one size fits all” answer.
In view of what we mentioned earlier about the key principle of exclusivity, we believe that, despite a contractual provision in a tenancy agreement giving permission for you to enter the property, you should still seek your tenant’s permission to do so.
2. Do I have the right to inspect the property?
Well that depends on your reason for inspecting the property.
If you are wishing to inspect the state and condition of the property, specifically in relation to your repairing obligations set out in S11 Landlord and Tenant Act 1985, you have an implied right to do so, upon giving your tenant at least 24 hours’ notice of inspection. That said, you must have a genuine reason to undertake that inspection and not just because you want to.
It is a common presumption of Landlords and their Managing Agents that as the tenancy agreement provides for access upon, what is usually 24 hours, notice that they have the right to access the property thereafter the said notice.
We think that, given a key principle of a tenancy is; exclusivity, it is unlikely that it will be found reasonable for a landlord to enforce a term of the tenancy that in effect, gives the Landlord an unrestricted right to access and is irrevocable by a tenant thereafter entering into the agreement.
3. Access to carry out repairs
It is implied within points set out by tenant and landlord law, that all assured tenancies, including an assured shorthold tenancy, will include a term that states the tenant shall afford the landlord access to the property to carry out repairs he is entitled to. This falls within the key landlord responsibilities and means, that even if there isn’t a term in the tenancy, the law implies it to be the case anyway.
4. After I have given 24 hour’s notice, can I go around whenever I want?
The short answer is no. It is likely that your tenancy agreement commits that you will only visit during “reasonable hours” and if it doesn’t, it is likely that you will be expected to act as if it does. What ‘reasonable’ means will depend on the circumstances of your visit to the property and the type of tenants you have in occupation. This is especially important in situations where you need, as landlord, to access the property for inspections and similar scenarios.
For example, if you tenant works night shifts, whilst you may think 09.00am is a reasonable time to visit and show prospective new tenants the property, your tenant may be asleep and therefore, it is unlikely to be a ‘reasonable’ time to visit for this purpose.
5. What about emergencies, do I still have to give 24 hours’ notice and get permission from the tenant?
In some emergency situations, as both owner of the property and the landlord, you have a right of entry without having to give your tenant notice, or obtain their permission. However, this should only be in the event of an emergency such as a risk to life or a risk of severe damage being caused to the property. For example, that could be:
a) A fire in the property;
b) If they can smell gas coming from the property;
c) If there is structural damage requiring urgent attention; or
d) If the property is flooded.
That said, a landlord would be well-advised, that where there is no immediate risk to live and if the tenant was refusing access or in the absence of permission from a tenant who has refused access in the past, to apply to the court for an injunction to enter the property. If the tenant has unreasonably refused you access, your costs of doing so may be recoverable from them and this falls within your landlord rights.
6. Giving tenants notice: How should it be done?
It is not uncommon these days for tenants to agree with their landlord that such notice can be given by a simple text message, or email, however, the tenant should have been asked whether they agree to receive notice this way. It is equally important for the Landlord to keep a record, preferably signed by the tenant, of this permission being given.
The notice should state who will be visiting the property and for what reason. Remember, your visit should be at a ‘reasonable’ time.
7. How can I ensure a good relationship with my tenant when it comes to gaining access to the property?
There's one golden rule you should always stick by: always provide your tenants with written notice at least 24 hours before any planned visits. What's more, you should try and visit when it's suitable for your tenants and be flexible with regards to time.
Remember not to visit more than is necessary and, when you do, do so in the appropriate way. Always knock on the door politely or ring the bell, and wait to be invited in. Unless there's an emergency, you should never just let yourself in without permission.
As a landlord with responsibilities, it's wise to set aside some time to read up on the rights of both yourself and your tenant. You must then ensure you abide by the necessary protocols and regulations, being respectful at all times of the person who's paying money into your bank account on a monthly basis.
Regardless of who owns the deeds of the property, in a landlord-tenant situation you have to bear in mind that you are asking to enter someone else's home. By letting to them, you have temporarily handed over the property and they will expect, to an extent, to be able to treat it as their own.
With this in mind, a polite, fair and respectful approach from your side will help to build a good, solid relationship between you and your tenant. This arrangement will be beneficial for both of you moving forward.
8. What can I do, I have tried everything and my tenants will not allow me access?
If you have been unable to gain access to the property with your tenant’s permission, you may make an application to the court for an injunction. This will give you a court order allowing you landlord rights to enter the property without your tenant’s permission. If your tenant has been unreasonably refusing access, the costs you incur in obtaining the court order may be recoverable from them.
9. I am worried my tenant may sue me for not maintaining the property, yet they will not allow me access.
You should take all reasonable measures to obtain the tenants permission and carry out any works required. That may mean;
a) Working with the tenant to find a time and date that is convenient for you both;
b) make clear to the tenant why access is required and by who;
c) give as much notice as possible for the access and by any means available (i.e SMS, email, letter, telephone); and
If all of this fails, seek an injunction if necessary. If you have made all reasonable endeavours to obtain permission and carry out the works the tenant is suing you for, you are likely to have a defence to those proceedings.
If you are in any doubt over whether you have a right to access the property, or you cannot obtain express permission from your tenant, you should take legal advice. A lawyer can tell you what you are entitled to under landlord law.
Authored by : Will Eastman, Head of Legal & Claims
Original Published Date: 14 March 2019
Reviewed Date: 12 March 2020