Accessing the property during a tenancy

Introduction

There a number of reasons you or your agent may need to access a property during the course of as tenancy. Whether it is to complete a repair, comply with a legal obligation or conduct a viewing, at some point it is likely you will need to enter the property.

However, accessing the property is not always possible. Legally when you grant a tenancy, you give the tenant exclusive possession (the right to exclude the world), they may exercise this right and refuse you access in some circumstances.

Entry without the tenant's permission unless you have the right to do so is trespass, and the tenant could take action to claim damages or an injunction to prevent entry by the landlord/the agent. Similarly, repeated attempts to access the property without permission could be considered harassment so this should be avoided.

This guide is intended to provide landlords with all the information they need to decide whether they can access the property and when it is appropriate to do so. It also covers topics such as what to do if your tenant refuses you access to the property.

Contractual rights to access

In most cases, to be able to gain access you will need to ensure your tenancy covers the reasons why you may need to enter the property. This gives you a contractual right to access the property and also provides clear instructions to the tenants as to when they must provide access.

This also makes it clear to the tenant that refusing access will be a breach of contract, which could potentially lead to you being able to seek damages if they do not comply with your reasonable access requests.

To ensure your tenancy is sufficiently well drafted to accomplish this, you should make sure you are using a professionally drafted tenancy agreement such as the NRLA agreements.

Accessing the property with the tenant's permission

In most cases, even where you have an implied or explicit contractual right to access the property, the best way to gain access is by asking the tenant's permission ahead of your visit. Where you do not have an implied right to access the property you will always need this permission.

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 into the property.

For extensive works, if you are going to rely on the tenants permission then make sure this is confirmed in writing by the tenant. You should ensure they know the full extent of the work that is being performed, as well as the timeframe you expect the work to take to complete.

Access to the communal parts of a House in Multiple Occupation (HMO)

For managers of HMO properties, access to the communal parts will be required frequently to ensure fulfilment of HMO management duties. Failure to comply with these duties can lead to a civil penalty of up to £30,000, therefore being able to access the property relatively easily is a key concern for HMO managers.

Luckily it is relatively simple to ensure you can access the communal parts without needing the tenant's permission beforehand. By using a room only tenancy agreement to rent out the individual rooms in your HMO, your tenant will only be granted exclusive possession over the room they rent. On these agreements, the landlord and tenants can access the communal parts freely without first needing permission.

Nevertheless, if you do have a room only agreement, it is still best practice to communicate with your tenants to let them know when you or your agents will be entering the property and you should try to ensure you do not enter unnecessarily.

Accessing for repairs

When you need to perform repairs on the property, there are three rights of access implied into every contract (regardless of whether it is written in it or not).

Section 11 of the Landlord & Tenant Act 1985

This allows access to carry out repairs with at least 24 hours notice. It also permits access to carry out inspections to see if repairs are needed again with 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.

Homes (Fitness for Human Habitation) Act 2019

This implies a clause into the tenancy agreement that allows the landlord to access the property to inspect its condition and state of repair. The notice must be in writing and provide at least 24 hours advance warning.

Housing Act 1988

This implies a term in all tenancy agreements that the tenant will give reasonable access 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 hours notice is required.

What if I need to access the property to make an improvement rather than a repair?

There is a clear distinction between repairs and improvements, therefore if you want to be able to access the property to make an improvement you will need to clearly set this out in the terms of your contract, or rely on the tenant's permission for access. 

What if the tenant refuses access to the property for the repair?

It is important to understand here that a tenant refusing access is a breach of contract (which allows you to potentially sue for damages) but entering without their permission may be considered a criminal act (including a potential jail sentence).

If a tenant refuses access you should make them aware that this is a breach of contract and they may be sued for damages. Take this opportunity to remind them of their legal obligations to allow access for repairs.

Alternatively, if the tenant still refuses access, depending on the seriousness of the repair you may also consider taking action to repossess the property or seek to enforce the contract via an injunction to gain access.

Do not enter or attempt to enter the premises after access has been refused.

Access for gas safety inspections

Often landlords in the social housing sector encounter a lot of difficulty in obtaining access to carry out gas safety inspections. Generally speaking, this does not seem to be as much of a problem in the private rented sector. Unfortunately, the relevant gas safety regulations do not confer any explicit power of access, although it is generally accepted that you can rely on any tenancy agreement clause allowing access for repairs or the statutory right under Section 11, as this is an inspection to see whether a repair may be needed.

What if a tenant refuses access for gas safety inspections?

Some tenants will refuse access for gas safety inspections. In these cases, the Health and Safety Executive have confirmed in the past that they will not look to prosecute landlords who have made 3 genuine efforts to gain access to the property.

Landlords should document in writing each of these attempts and keep a record of how access was refused.

Access for letting viewings

You should seek permission from the tenant here before arranging viewings. 

While your tenancy may state that the tenant must provide access, in practice it is probably better to wait for the tenant to leave the property before conducting viewings, particularly given the cost and complexity of seeking to enforce access clauses through the court.