I have been passed a draft AST that a prospective LA uses and I am concerned about one of the 'Other Provision' clauses that it lists. The Clause in question is as follows:

'The landlord shall be entitled to have and retain keys for all doors to the property but shall not be entitled use thereto enter the property without the consent of the tenant (save in the event of an emergency, none payment of rent or to perform maintenance).

I phoned the NLA and they were adamant, as am I, that when it comes down to it there is no legal right to enter a property without the tenant's position. I put this to the LA and they assured me that they had taken legal advice regarding the clause. As far as they are concerned as long as at least 24hrs notice is given in writing they are entitled to enter the property. They have subsequently provided an extract from the ARLA Technical Award Qualification in Residential Lettings and Property Management, The Property Ombudsman's Code of Practice for Letting Agents that seem to support their stance of having a legal right of entry. This is further supported within the Communities and Local Government Assured and Assured Shorthold Tenancies A Guide for Landlords although this one does state that you should seek legal advice if the tenant will not give you access.

As far as I am aware, and the NLA agree, the tenant's right to peaceful enjoyment is the over riding factor and by the letter of the law there are no circumstances in which a LL or LA can enter a property without the tenants permission, except at the end of due process of an eviction. To do so would be acting in a 'ultra vires' way.

If some one could point out the law that backs the non right of entry that would be very
useful as I can not seem to pin point it.

Many thanks

I have raised this exact same issue with solicitore who are representing me on behalf of the RGI company who are paying me due to a tenant not paying rent.
£6000 owed so far but winging it's way to my bank account as we speak.
The solicitor advised me that because I have a clause in my AST that I may enter having given 24 hrs notice, but that effectively I would be doing so under the guise of entering to carry on with emergency works.
I do have these works to carry out.
If you cannot claim the works you need to carry out are of an emergency nature then I agree with you that you cannot enter if the tenant refuses to allow entry.
There was a stabbing at my flat and yet still I don't enter even though I am 20 m away from the property.
Irrespective of what yoursw and mine AST states, the law takes priority.
Something that few LA seem to appreciate.
Now if a LA enters without permission but have given, say 48 hrs notice and attempts to or actually does enter with keys, where does that put the LL as far as preventing the tenant from peaceful enjoyment.
I would suggest that ultimate liability lays with the LL and the LA is effectively under instruction form the LL.
I think therefore the LL would cop it for any wrongdoing carried out by his appointed LA.
I don't know what action a tenant could take or what if any recompense would have to be paid by the LL to the tenant; but ultimately a LL is responsible for ALL a LA actions.
The concept therefore of allowing the LA to manage as he sees fit even if in contravention of the law is something that LL need to consider when instructing a LA to deal with the property issues.
In law it it the LL who carries the can; no matter who he may have instructed..
LA are unregulated and a LA that causes a LL to end up in court can only attempt to pursue civil recovery from the LA with not a lot of chance to recover.
If the LA as CMP then you stand a better chance.
How many LA have CMP!!?
Not many and yet they are used by LL all the time.
Do LL realise how exposed they are to the law if the LA fails to carry out what the law prescribes, I doubt it!!?

Firstly, it is worth remembering that tenancy agreements are not written soley as ASTs - they have to cover the very easy eventuality of the tenancy dropping out of the 1988 Housing Act and becoming a 'bare' or 'contractual' tenancy. Therefore they may well contain clauses that are not compatible with an AST and would simply be ineffective/unenforceable.

With this particular situation, statute gives the landlord an implied right to enter the property to inspect it's condition and to effect repairs (s11(6) 1985 L&TA, s16 1988HA). If the contract specifies different entry provisions, then it ceases to be an implied term, it becomes an express term with the same effect as any other contract term - it is valid unless it contradicts statute/common law or is deemed unfair by the courts. The express terms in this contract seem to restrict you implied rights.

Where the agreement gives the landlord more rights than statute via express terms, the question is, could such a clause contradict any existing law? The one that leaps to mind is the covenant of quiet enjoyment but this is a very subjective 'right'. The courts would presumably regard the landlord entering the property on a weekly basis without notice to be a breach, whereas a 6 monthly visit with 48hrs notice / 7 days notice ???? I'm not a lawyer or a judge

There is an exhaustive thread on the subject here - it's author/OP is legally qualified (though no longer practicing iirc). It will require a good length of time to read through, so get a coffee, or if time is pressing this Sunday afternoon, concentrate on the first & last couple of pages. http://bit.ly/right-of-access

(07-10-2012 01:55 AM)steven_ball Wrote:  If some one could point out the law that backs the non right of entry that would be very
useful as I can not seem to pin point it.

Hi Steve, I doubt you'll find anything concrete in any Landlord & Tenancy Act as neither the landlords right of entry nor the tenants right to quiet enjoyment could be absolute when you think about it logically as there will always be some potential exceptional circumstance that would be stifled if it was as simple as the law going one way or the other.

Surely it's got to be down to a bit of common-sense and a few ground rules which are mutually acceptible, hence landlord and tenant generally co-sign an AST which makes sense to both parties at that juncture?

A few LA's do tend to write lop-sided clauses. In your position I'd be asking myself "what's the worst thing that can happen?" and if I wasn't comfortable with my answer I'd move on.

@Paul,
I totally agree with your concern that many LLs will not know that LAs are potentially acting in a way that could well end the LL in court. That is the reason I queried it with the LA as I would certainly not want them entering one of my properties without the tenant's permission. The solicitor you quote is effectively agreeing with the clause I have issues with which seems to backup the LA's view that they are acting within their/my legal rights.

@Dave,
Flippin heck 25 pages. I did not read them all but I get the basics now, whether right of access is granted by express or implied terms if the tenant refuses entry (the fact that they may have agreed to it by signing the AST is neither here nor there) then a LL would be foolish to force entry.

@Pat
Having read the thread that Dave linked to there appears to have been a case for entry (Section 8(2)) of LL&T Act 1985) but that was repealed on 1 Jul 12. As you rightly point out at the end of the day it will boil down to applying common sense in the event that access becomes an issue.

With most business transactions, if both parties behave in a reasonable manner, things tend to run smoothly irrespective of 'legal rights'. If one party doesn't behave reasonably then I suggest a smart landlord wouldn't want to do business with them - cue section 21.

Agreed Dave.