It is often asserted that a landlord, even if the tenant has agreed to it in the tenancy agreement or lease, may not enter premises without the consent of the tenant.
Whilst on the whole it is wise for a landlord (and especially a landlord of residential premises) to proceed on the basis that that is the law, I do not think it is in fact the law.
There is no rule of law that says that a landlord may not exercise any right of entry he reserves. A tenant must of course not be harassed. Apart from that, he has a right to quiet enjoyment, but that right needs to be read as if it were qualified by any right reserved that allows the landlord to enter, so long as he behaves reasonably. It is not easy to say what is reasonable. Since the exercise of the right is not dependent upon a court saying it can be exercised, there must be circumstances, apart from a case of genuine emergency, where it is not unreasonable for a landlord to enter without consent and even where permission is refused, but it is a brave landlord who thinks he knows what the circumstances are.
When it comes to tenancies, the starting point is this: a tenancy is an arrangement in which the landlord gives up his right to exclusive possession (that is possession in the sense of occupation) and hands it to the tenant in exchange for (usually) money.
1.The landlord’s covenant for quiet enjoyment, which if not express, is implied. (Theoretically, I suppose it may be expressly excluded, but I have never heard of this being done.) This covenant is essentially a promise by the landlord not to interfere with the tenant’s enjoyment of the property. It is a right that arises as a matter of the contract; a breach by a landlord of his covenant for quiet enjoyment is not a tort. The distinction is important because the remedies are different.
2.The rule that a landlord may not derogate from his grant, is that he cannot give something with one hand and take it away with another.
There is some overlap between a breach of a covenant for quiet enjoyment and derogation from a grant, and some actions may amount to both.
In a tenancy agreement or lease, a landlord may do one of two things, or may do both:
(a) impose an obligation on the tenant to allow access for specified purposes
(b) reserve a right of entry for specified purposes.
The effect is the same, which is that the landlord has what we may call “the landlord’s right of access” – or at least that is what I hope to show.
If it has been established, as I hope it has, that the landlord’s right of access must exist if it is agreed, we can then ask how that right is to be reconciled with the tenant’s right to quiet enjoyment and, if some reconciliation can be made, what restrictions may be imposed on the exercise of the right. I think the two questions are related and can conveniently be dealt with together.
The right to quiet enjoyment is, like most if not all rights, not absolute. It has to be subject to exceptions, even if not agreed. Where an exception is agreed, whilst a landlord can with some justification point out that it was agreed, it comes down to whether the exception strikes at the heart of what a tenancy is – the right to enjoy exclusive possession in substantially the same way that a freeholder would enjoy it. However, discounting long leases of houses, the fact is that being a tenant is not the same as being a freeholder. Therefore, it is a question of whether the right is intrinsically reasonable and, if it is, whether how the right is exercised is also reasonable.
Landlords may require their tenants to allow access for two main reasons.
The first is to allow access (including access for inspection) for some estate management purpose connected with:
(i)carrying out such maintenance as is necessary to preserve the value of the property
(ii)complying with the repairing obligations owed to the tenant
(iii)complying with statutory obligations
It is not too difficult here to assess whether a landlord’s right of access is being exercised reasonably.
The second is to allow access for inspection for some purpose connected with a proposed dealing with the property by the landlord, which requires:
(i)allowing prospective tenants to inspect
(ii)allowing prospective buyers to inspect
(iii)allowing a valuer or surveyor to inspect
Apart from (iii), which should not be frequent, this is more problematic. For a right to allow prospective tenants and buyers to inspect to be useful it has to involve allowing all prospective tenants and buyers to inspect at short notice. A succession of people calling is soon going to amount to a significant annoyance even if you are easygoing; it is annoying enough when you have a vested interest in selling. A reasonable compromise may be to agree viewings should take place on only one day a week during an agreed period of an hour or two.
All the above is all very well, but in practice and in the absence of harassment by either party, when the tenancy is short term, no one is going to take the time and trouble to go to court. It really has to come down, therefore to the parties behaving reasonably.
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