GUIDANCE TO ACCESS TO PROPERTIESV1-JC-24072014

Background

Landlords and agents may need to know in what circumstances they can obtain access to the properties which they own or manage which are tenanted. Legally, when you grant a tenancy you give the tenant exclusive possession i.e. the right to exclude the world, including the landlord and the landlords agent subject to any rights of entry the landlord reserves. Entry without the tenant's permission unless you have the right to do so, is a trespass and the tenant could take action to claim damages or an injunction to prevent entry by the landlord/the agent. Access can be permitted in one of two ways, either by a provision in the tenancy agreement or where the law confers a right of access.

Access will be needed to carry out repairs. It may also be required to inspect the property to see whether repairs or other works are needed e.g. to decide whether fire precautions works are needed in connection with energy improvement measures etc.

It should also be remembered that unless access is legally authorised then allegations of harassment on the part of the landlord/agent may arise.

Access by permission

The Tenant can always give permission to the landlord/agent or their workmen to enter. This permission must not be assumed. There can be arguments as to whether permission has or has not been given. If you are going to rely on permission make sure that the tenant fully understands why you need to go in to the property. Even if the tenant appears to have given permission to enter then the permission may not be valid at all if you have misled the tenant as to why you want to go in or if you have not informed the tenant about the reasons for access. For extensive works, if you are going to rely on the tenants permission then make sure you get it confirmed in writing by the tenant.

Repairs

Remember there is a distinction between repairs and improvements. If access is needed to improve the property or to carry out works to an adjoining premises, it may be that even if the tenancy agreement permits access the wording of the clause in the agreement is not sufficiently wide to allow access for these purposes and it may only allow access to carry out repairs.

In relation to repairs there are two statutory rights of access (over and above anything provided for in the tenancy agreement):-

Section 11 of the Landlord & Tenant Act 1985.
This allows access to carry our repairs on at least 24 hours notice. It also permits access to carry out inspections to see if repairs are needed again on at least 24 hours notice. Note however that the statutory power of access will only authorise access if this is genuinely needed to carry out repairs or inspect to see if repairs are needed.

Housing Act 1988.
This implies a term in all tenancy agreements that the tenant will give reasonable facilities to allow repairs to be carried out at the property. There is a similar provision under the Rent Act 1977 applicable to regulated tenancies (including statutory tenancies) governed by that act. Again 24 hour notice is required.

The rest of this guide includes sections on the tenancy agreement, purposes for eligible access, gas safety inspections, statutory notices and your rights if a tenant refuses access.

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