You need to access to your property to do a gas certificate, but the tenant won’t let you in, what can you do? The are fully aware that it is Law that you have to do a gas certificate, and that if you dont do your gas certificate, you could be liable to a £5000 fine and/or 6 months in jail and you are also aware that the tenant has the right to quiet enjoyment and to not be hassled by you the landlord, also that fines can be pretty excessive for entering a property without the tenants consent, so this is one issue, you really need to be careful of.
Most tenancy agreement will hold a clause saying that you have the right to enter in case of emergency or for essential maintenance, but if the tenant stands in the doorway refusing you entry or is explicitly clear that they do not want you to enter the property, you actually have no right to “force” your way in or to ignore their wishes and go in anyway, a tenant has to “give you permission to enter”. Now if the tenancy agreement says you can enter with reasonable notice and you give reasonable notice and then you enter, that is absolutely fine as you have written permission, BUT if the tenant calls you up and says NO you can’t go in, that this would override the written permission as it is more recent and you should therefore NOT enter as you no longer have consent to do so.
With this one you are caught between a few different regulations, namely the Gas safety regulations and the requirement on you as the landlord to enter the premises to do a gas certificate, the landlord and tenant act 1985 section 11 obligations on you as a landlord to repair and maintain your property as well as the tenants right to quiet enjoyment. It does state that your tenant has to allow you access to do essential repairs, in the same act, but unfortunately if they refuse, to force your way in would be a breach of their rights too. Entering into a property against your tenants wishes would give them an opportunity to start a claim against you for Harassment, under the Protection from Eviction Act 1977.
Over the last 6 months I have been posing the above conundrum to landlords across the country at landlord training and networking events and asking them what they would do and the answers are generally the same, here are some of the most common I have received.
A common answer to my question was “I would force my way in or get the heavies round” under the Protection from Eviction Act 1977, any form of intimidation or making the tenant feel they may be assaulted or suffer from battery, is deemed as Harassment, so this is definitely not a course of action you should consider
Many landlords feel that they would “just go in when the tenant is not there”, If in fact you were to enter onto the premises when they have clearly refused consent, they would have a right as tenant occupiers to start a claim against you for Trespass as they have a right over the premises as a tenant just as an owner occupier does.
Quite a few landlords said that they would “call Transco and get the gas disconnected.” This would be a breach of their “Rights to Quiet enjoyment” as this would prevent them from using the property as they would expect to be able to do so normally and they would have a very strong case against you.
Many tenants have managed successful claims against their landlords for entering their properties when instructed not to do so as most landlords when asked, feel that they have the right to enter, due to their obligations under the landlord and tenant act amongst other regulations, when in fact they do not.
The Landlord and Tenant act section 11, subsection 6, does in fact state that the tenant must allow you entry to the property, however, like anything in this country, if someone does not do what you want them to do you cannot just beat them into submission, you have to follow a “process” to encourage them to do what is required of them and this is no different, just like rent arrears. If your tenant will not allow you entry into the property, you must threaten to take them to court for “access” and then follow through with it if they still won’t let you in. In practice, over 21 years in the industry and managing over 5000 properties during that time, we have never had to actually take any tenant to court for access, but we have had to “threaten it” many times, that generally seems to be all that is needed to get access.
Sally Lawson is a Leading authority on Residential Lettings and Management in th UK, Sally has ran Lettings Branches since 1990, and let over 5000 properties during that time. She has also worked as a consultant and trainer to Letting agents nationwide. Sally is actively involved with ARLA (the association of residential letting agents) as a regional representative and Media Spokesperson for the group, and runs the rapidly expanding nationwide Concentric Lettings operation and Franchised network. www.SallyLawson.co.uk