Landlord wants to sell early in tennancy

jjlandlord

Yes, randomly worded pub polls will give reliable info

G_M

Read then discuss:

http://www.landlordzone.co.uk/forums/showthread.php?26589-L-s-right-of-access-for-inspection-or-viewing

jjlandlord

G_M wrote: »

Read then discuss:

http://www.landlordzone.co.uk/forums/showthread.php?26589-L-s-right-of-access-for-inspection-or-viewing

Indeed, the contributions from one of the members knowledgeable in law are one of the references I have to support my point... As said many times.

E.g.:
"The point is that the law does allow entry and that is why agreements provide for it. The idea that a tenant has the absolute right to refuse access is misconceived and believed by many because it has been repeated so often on the internet. I am not saying a landlord can just waltz in at will."

And a quote from Megarry and Wade: Law of Real Property

"Landlord's right to view. The tenant is under an obligation to permit the landlord to enter and view the state of repair in cases where the landlord is liable to repair them. The landlord may also have a statutory right to enter and view in other cases. But apart from these, unless he has reserved a right of entry, he has no right to enter the premises during the term, however good his reason, for he has given the right of exclusive occupation as long as the tenancy endures."

Again, while it would probably be unwise to, even if T refuses a landlord acting reasonably could gain access for legitimate reasons as long as he does not force his way in or otherwise breaches the peace.
If LL hasn't got the key, obviously he'd have not choice but to rely on the tenant or a court injunction, indeed.

thegirlintheattic

jjlandlord wrote: »

Indeed, the contributions from one of the members knowledgeable in law are one of the references I have to support my point... As said many times.

E.g.:
"The point is that the law does allow entry and that is why agreements provide for it. The idea that a tenant has the absolute right to refuse access is misconceived and believed by many because it has been repeated so often on the internet. I am not saying a landlord can just waltz in at will."

And a quote from Megarry and Wade: Law of Real Property

"Landlord's right to view. The tenant is under an obligation to permit the landlord to enter and view the state of repair in cases where the landlord is liable to repair them. The landlord may also have a statutory right to enter and view in other cases. But apart from these, unless he has reserved a right of entry, he has no right to enter the premises during the term, however good his reason, for he has given the right of exclusive occupation as long as the tenancy endures."

Again, while it would probably be unwise to, even if T refuses a landlord acting reasonably could gain access for legitimate reasons as long as he does not force his way in or otherwise breaches the peace.
If LL hasn't got the key, obviously he'd have not choice but to rely on the tenant or a court injunction, indeed.

Nothing there seems to indicate that the LL can bring buyers round to view the house.

N79

ruggedtoast wrote: »

It's not debatable at all, the only way a Landlord can enter a property against their tenants will is with a court order.

If I were your tenant I would be changing the locks.

I'm going to wade into this debate with my (rather long - sorry - but it is important to explain the context) view (some of which I have cut and pasted from other musings of my own). I don't agree with this either for the following reasons - it really is not that black and white.

Starting with the background...........

First, I assume that we can agree that tenancies have an implied covenant of quite enjoyment. We can also agree that this covenant does not derive from statute. (IIRC this covenant derives from Budd-Scott v Daniel.) I have posted before that this is not an "absolute right" and would always be subject to tests of reasonableness and the exact situation. The most obvious case is entry in the face of a genuine emergency when lives or the entire fabric of the property are at stake (eg fire, the "gas leak" situation, possibly flooding etc).

Secondly, we need to have a definition of quiet enjoyment. The right is ancient and dates from the late medieval period. For some definitions that are a little more modern and useful you can use a combination of

Dennett v. Atherton (1872) L.R. 7 Q.B. 316;
Jenkins v. Jackson (1888) 40 Ch. D. 71;
Hudson v. Cripps [1896] 1 Ch. 265

with the very, very important

Sanderson v. Berwick-upon-Tweed Corporation (1884) 13 Q.B.D. 547, 551

which clarified that the right applied even when matters of title were not in dispute - only ordinary usage (ie that the right applies tenancies and tenants).

Unfortunately to my knowledge you will need access to a good law library if you want to read these case reports - in a University library they will probably be reasonable accessible as they will get annual usage. In the country records library they will probably be lost in the dusty basement archive so you would be advised to contact the library and request the reports in advance. However, a summary was given by Mr Justice Laddie in Southwark Council vs Mills (1998) 2 EGLR 30 which is available online (although in that case the complained of (in) actions of the LL were held by the Court to not be a breach of quiet enjoyment).

Thirdly I hope we can also agree that it is quite common for a LL to reserve certain rights within the tenancy agreement. One right that a LL often reserves is the right to enter the premises for the purpose of inspections or viewing the condition of the property, subject to certain conditions (normally written notice). Indeed, in the case of a LL's right of access for carrying out their S11 obligations (LL and T act 1985), this right is implied in all ASTs (and some other tenancies) by statute. There are probably other statutes giving implied rights of access to LLs (possibilities, and I make no claim that these instances do give actual rights, the are merely illustrations, would be HSE or Council inspections, on request of police enforcing warrants etc).

Even when the LL reserves the right to access to conduct viewings for future sale or lettings, I would agree with JJLandlord that there is nothing in common law or statute that would make such a term void. The term is valid and both LL and T are bound by it.

This leads to the key question of how these two "rights" can be reconciled in the event of a dispute.

Before addressing this issue however, we also need to note the Protection from Eviction Act 1977 as this makes harassment of a T illegal (confirmed in Southwark vs Mills). Therefore any course of action of the LL which can be construed as harrassment is actionable against the LL by an appropriate authority and is illegal.

Obviously if the T allows access then there is no problem. Also, I suspect we agree that if the T denies access then it would be a foolish LL who physically forces their way into the property with the tenant present as, at the very least, they will fall foul of the protection from eviction act and quite possible will commit other criminal offences as well (eg common assault, public order offences etc). If the LL turns up "on spec" without following whatever notice rules are contained in the contract and the T allows access anyway then there is no breach of quiet enjoyment (but repeated bullying for access in this way could well be construed as harrassment and therefore could well be illegal).

This leaves the difficult question of what would happen if the T denies access but is not present at the property when the LL gains access (eg via use of a key). To be honest, I would not like to call which way a court would go - this issue has not been tested as the costs normally far out way the likely damages for either party in the world of short term tenancies. Both parties have rights that could be used to justify their actions (the Ts in refusing access, the LL in accessing the property) and a court would have to rule which set of rights is more important in the specifics of the situation before them if the T sued for breach of quiet enjoyment. For example, I suspect a court would give the rights of a LL gaining access for essential repairs after repeated attempts at negotiation and compromise will probably be weighted differently to the rights of a LL gaining repeated access just to view the condition of the property and even less weight will be given to the LL exercising a contractual right to conduct viewings.

For what it is worth, my view is that if the LL does this once (for any reason) then I suspect that the T does not have any real remedy. However, if the LL repeatedly enters without permission then I suspect that a court would order the LL to stop. Further, the LL may face prosecution for harassment - but this would depend on the number, condition, circumstances and severity of the LL's actions.

Finally, if a LL wants to do this properly and applies to a court to enforce the contract, would a court enforce the contract term of the LL's right to access over the T's implied right to quiet enjoyment and order the T to provide access? I suspect that they would favour the LL for matters of essential maintenance but would favour the T over matters related to repeated viewings but we can all definitely agree to disagree on this point until someone gets as far as the High Court!

G_M

This leaves the difficult question of what would happen if the T denies access but is not present at the property when the LL gains access (eg via use of a key). To be honest, I would not like to call which way a court would go -

This is, indeed, one of the cruxes of the matter, and as you say, only a court can decide. However it would be a rash LL who took this action in the face of opposition/written refusal by a tenant without a court order.

The other key scenario is where a tenant has changed the lock, to protect their 'quiet enjoyment', thereby denying the LL access even where the LL may have a right of access (eg for inspection/viewings etc). Again, only a rash LL would attempt entry without a court order.

ruggedtoast

jjlandlord wrote: »

Indeed, the contributions from one of the members knowledgeable in law are one of the references I have to support my point... As said many times.

E.g.:
"The point is that the law does allow entry and that is why agreements provide for it. The idea that a tenant has the absolute right to refuse access is misconceived and believed by many because it has been repeated so often on the internet. I am not saying a landlord can just waltz in at will."

And a quote from Megarry and Wade: Law of Real Property

"Landlord's right to view. The tenant is under an obligation to permit the landlord to enter and view the state of repair in cases where the landlord is liable to repair them. The landlord may also have a statutory right to enter and view in other cases. But apart from these, unless he has reserved a right of entry, he has no right to enter the premises during the term, however good his reason, for he has given the right of exclusive occupation as long as the tenancy endures."

Again, while it would probably be unwise to, even if T refuses a landlord acting reasonably could gain access for legitimate reasons as long as he does not force his way in or otherwise breaches the peace.
If LL hasn't got the key, obviously he'd have not choice but to rely on the tenant or a court injunction, indeed.

Define reasonable, define legitimate, define force in the context of having been expressly told you may not enter.

If someone tells you you can't go into their home you can't go in. Is that point really that hard to understand?

newbutold

I would be changing the locks but keeping the original to be refitted upon me moving out. This was you are certain that no viewings will takeplace without you present.

You are allowed to change the locks. It can be possible to do this cheaply and easily.

With regards to viewings, I would see how it goes you may not get that many. I would not be taking time of work or inconveniencing myself though. If it becomes apparent that the viewings are plentiful I would then be restricting it to maybe one weekend morning every fortnight or so.

jjlandlord

thegirlintheattic wrote: »

Nothing there seems to indicate that the LL can bring buyers round to view the house.

Please let me emphasize the relevant part:
"Landlord's right to view. The tenant is under an obligation to permit the landlord to enter and view the state of repair in cases where the landlord is liable to repair them. The landlord may also have a statutory right to enter and view in other cases. But apart from these, unless he has reserved a right of entry, he has no right to enter the premises during the term, however good his reason, for he has given the right of exclusive occupation as long as the tenancy endures."

Hence why what's stated in the tenancy agreement actually matters.

N79 wrote: »

Finally, if a LL wants to do this properly and applies to a court to enforce the contract, would a court enforce the contract term of the LL's right to access over the T's implied right to quiet enjoyment and order the T to provide access?

Thanks for this very informative post.
The question I have regarding the above is why would the LL's right of access necessarily go against T's right to quiet enjoyment?

G_M wrote: »

However it would be a rash LL who took this action in the face of opposition/written refusal by a tenant without a court order.

Frankly, imo it would depend on the reason for access. If gas safety certificate has expired, carrying the safety check while the T is out might be the less of 2 evils...
In practice I think there's not much the tenant can do in such a case, as pointed out by N79. Obviously aprt from changing the locks, etc.

G_M wrote: »

Again, only a rash LL would attempt entry without a court order.

For sure without the key it's difficult to gain access. Obviously breaking in is a big no-no.

BitterAndTwisted

Interesting discussion.

The long and the short of it for the OP is that regardless of the landlady's intention to sell they are not obliged to do anything if they don't want to. They have a firm contract to rent for another seven months and nothing, not even a court can change that. Offering £100 as a one-off payment is derisory in the extreme. I'd be bloody insulted with such an inappropriate offer.

The likelihood is that should the OP decide to stick it out until the end of their AST the only possible potential buyers would be those who are either already investors or be looking to get into BTL No sensible buyer who needs a mortgage would entertain having to wait seven months plus to complete.

There is a strong suggestion to me that this landlady cannot afford her mortgage or why else negotiate a 12 month tenancy only to decide to sell a mere five months later? I might be minded to ask the landlady to offer a substantial sum in order to get my agreement to end this tenancy before the "To The Occupier" letters start arriving. And I'd be changing the barrels of the locks on the front and back doors in the meantime.