Kirsten Blower from JB Leitch looks at landlords’ rights and obligations in gaining access to a property should urgent works be required.
The issue of safety in residential blocks, with leaseholder and landlord responsibilities a key element of ongoing debate and consultation, undeniably raises many important questions. JB Leitch’s Legal Director Phil Parkinson and Associate Kirsten Blower provide insight and opinion on the complexities and precedents surrounding a landlord’s ability to access property where there is need to provide maintenance works on an urgent or emergency basis.
Placing the issue of access in context, under a lease, whether expressly or on a common law basis, a tenant will be entitled to quiet enjoyment of their demised property. As a result, the landlord cannot simply access the property whenever they wish. In the event a landlord does require access to a flat, to carry out works for example, the lease will usually set out how the landlord should set about getting it.
A standard provision usually provides for a landlord writing to the tenant to formally request access to the property. It is also common for leases to provide that a landlord should give at least 24 hours’ notice to the tenant before access is needed or even an unqualified ‘reasonable’ period of time. This is likely to be acceptable where there is no urgent requirement for access, for example, where there is a requirement to undertake an inspection of the property as to the general state and condition of it.
However, there will also be situations where access is required as a matter of urgency, such as where there is a notable water ingress, gas leak or fire – situations and circumstances that may necessitate action beyond the formal schedule. Yet, there is no strict qualification of what constitutes ‘urgent’ works in such cases so each situation should be assessed on its own merits.
If it is considered that urgent works are required, in the first instance the tenant concerned should be contacted in order for a request for access to be made. In the event the tenant is non-responsive or refuses to allow access, the landlord can look to make an application to the court for an urgent injunction permitting the landlord (and its agents) access to carry out the necessary works. This is because to enter the demised property without the tenant’s permission, would constitute an act of trespass and the landlord could face a claim against it by the tenant for breach of covenant and damages.
If however, the works are of such an urgent nature that even time lost by seeking an injunction through the court would be too great, the landlord can look to enter the property to carry out what works needs to be done to address whatever matter(s) gave rise to the urgency or rather, emergency.
As we have highlighted, entering a demised property without the tenant’s consent is not without risk and such an option should be regarded as being one of last resort. Therefore, every effort should first be made, in so far as reasonably possible, to obtain the tenant’s permission before gaining (unauthorised) access.
There is also a different perspective to consider. It may be the case that the urgent works required, are necessary as a result of the tenant having breached their repairing obligations under the lease.
There is no implied right to re-enter premises to carry out repairs in circumstances where the tenant is in breach of their repairing obligations however, it may be that there is an express provision within the lease that grants the landlord a right to gain access and undertake the repairs that the tenant should have otherwise done themselves. This form of provision is often referred to as a ‘Jervis and Harris’ clause.
Usually, the landlord will have to serve notice on the tenant – setting out when repairs need to be done and within what (reasonable) timeframe. Depending on just how ‘urgent’ the works are, this may not always be a feasible course of action. Should the tenant fail to carry out the necessary works within the given timeframe, the landlord may then enter the premises, carry out the works and subsequently recover the cost of doing so from the tenant by way of a debt claim.
Specialist Liverpool law firm J B Leitch delivers expert niche legal solutions for a range of commercial clients including residential freehold investment and block management companies, in particular some of the country’s largest institutional landlords. Established in 1997, the market-leading firm enjoys a strong reputation for its niche property litigation work. The team is proud to support key players in the property management sector with services including volume debt recovery, complex technical cases including forfeiture and breach of covenant cases, and with a growing portfolio of commercial property and non-contentious real estate matters.
