by | Jan 29, 2021 | Safer Renting

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I read a plea for assistance on Twitter recently from a tenant whose landlord was going to the property with a handyman to begin decorating it for sale.

Not an unusual problem but it was the thread of comments underneath the tweet that concerned me enough to decide to write something to clear up the confusion.

In this instance the landlord had given 10 minutes warning by text and the helpful comments all advised that they would have to give 24 hours notice before entering. This is entirely wrong and an erroneous understanding of the true legal position, so often misunderstood by landlord and tenant alike.

Lets start with s1 of the Law of Property Act 1925, which deals with the creation of estates or interests in land, which is that a tenancy is a form of ownership of land, just like a freehold interest, so the tenant, having a legal “Interest” in the property is to all intents and purposes, the owner of that property whilst they hold the lease and has the right to exclude anyone they like from the property, including the landlord, who would be trespassing if they let themselves in without the tenant’s permission.

This notion about 24 hours notice comes from s11 (6) of the Landlord and Tenant Act 1985, s let’s look at that:-

“In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair”

Picking that apart we have the mention of the 24 hours written notice, which causes so much confusion.

Advance warning doesn’t mean that the landlord can simply serve the notice and go in without the tenant’s permission, as we have already seen they would be trespassing if they did so and notice there the words “For the purpose of viewing the condition and state of repair”.

There is nothing there about decorating. The law is prescriptive and allows only viewing the condition.

There are limited situations where entry would be permitted and they are entirely sensible, for instance smelling gas emanating from the property, fire, flood, serious structural problems that might be injurious to health, such as a chimney about to collapse but in all other, normal instances, the tenant has the right to refuse access to the landlord or his agents and to order them from the premises if they entered without permission.

Twenty four hours written notice is not a magic wand that overrides rights of occupation or control of their accommodation. It is perfectly acceptable for a tenant to refuse access. Landlord and tenant may arrange a mutually agreeable time but the landlord cant impose it on the tenant.

In a recent-ish case that I cant remember or track down, a landlord applied for injunction for entry after the tenant had repeatedly ignored their letters requesting access but the courts refused to grant one, saying that ignoring the letters requesting access was not the same as refusing access. They weren’t “Acting” to block it but simply not replying, a fascinating and instructive interpretation.

Which brings us to the ever present thorny question of whether a tenant can change the locks to their accommodation.

Well as we have already seen, a tenancy is a form of ownership of land, giving the tenant the same rights as a property owner and on a purely practical level any new tenant, or property owner, would be mad not to change their locks because you don’t know what previous parties have done with their keys.

The issue then comes down to whether or not the tenant has to provide a copy to the landlord or agent.

Whilst a tenancy confers exclusive possession there may be clauses in a contract that prohibit the tenant from changing the locks, in which case changing the locks would be a reach of contract, allowing the landlord to seek a possession order under Ground 12, “Breach of terms of tenancy” but this is a discretionary ground and can you really see a judge finding it reasonable to grant possession because the tenant was simply exercising their statutory right to exclusive possession and quiet enjoyment?

Anyone considering changing the locks should consider whether in doing so they may be causing damage to the door or frame but in most instances it isn’t necessary.

Yale locks cost £7 and pop in and out with just 2 screws and any locksmith knows how to change more complex locks without causing any damage at all.

So lets end this myth that a landlord can enter whenever they like, to do whatever they like, as long as they gave 24 hours written notice first.

This is especially important at the moment with self-isolation being the norm.

Tenants can refuse access to the landlord. If the landlord isn’t happy about it then the way is open to then to use the court system but not to merely force their way in.

  by Ben Reeve Lewis

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The Cambridge House Safer Renting team present the ‘go-to’ blog on the world of the Shadow Private Rented Sector.

We monitor the world of rogue landlord and agent activity, publicise developments, circulate innovative ideas, keep readers abreast of changes in laws and regulations, raising awareness of criminal trends and scams, celebrate successful actions and interview people working in the field, connecting up anyone involved, from tenants and their advisers, to enforcement officers, lawyers and journalists.

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