New TPO guidance states – express tenant consent for access should, rather than must be obtained

by Property 118

16:10 PM, 1st November 2016
About 2 years ago

New TPO guidance states – express tenant consent for access should, rather than must be obtained

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New TPO guidance states – express tenant consent for access should, rather than must be obtained

TPOThe Property Ombudsman (TPO) scheme has issued new guidance for agents concerning obtaining express consent from a tenant before accessing a property.

A number of interpretations of the amended paragraph  ‘Access to a Property’ of the updated TPO Lettings Code of Practice concerning obtaining express consent from a tenant before accessing a property have stated that express consent must be obtained. This is incorrect.

The above paragraph says:

“Access to a property may be required by you, or an authorised third party on behalf of the landlord (e.g. a surveyor, builder, tradesman etc) for the purpose of viewing the condition, state of repair and/or to fulfill related statutory obligations and/or to carry out repairs. If you hold the key but are not able to accompany that person, the tenant must be given the appropriate minimum notice of 24 hours or that prescribed by law, of the appointment (unless agreed otherwise with the tenant beforehand), except in cases of genuine emergency. Notwithstanding providing the tenant with reasonable notice to access a property, express consent from the tenant to do so should be obtained.”

Therefore, an agent must provide written confirmation of their request to access the property to the tenant. Within that written request, the tenant must be asked for their confirmation of whether or not access is acceptable. The request must be issued in good time to allow the tenant a reasonable period of time to respond the minimum period being 24 hours.

It is often the case that a tenant will not respond to an access request and, in those circumstances, provided the tenant has been provided with the opportunity to respond, the agent is entitled to make the assumption that access is permitted. However, the tenant must be given the opportunity to refuse access, if they so wish. It therefore follows that express consent should, rather than must be obtained.

The change was made to the TPO Lettings Code following a number of cases whereby agents were giving tenants the minimum 24 hours’ notice, often sent by text, before entering the property (sometimes to the surprise of the tenant). Whilst legal, this was clearly not good practice and not the manner in which we would expect agents, who had voluntarily chosen to follow the TPO Code, to behave.

To view the latest versions of all the Codes, please visit the web page below where you can also view highlighted changes to the latest Codes of Practice:

https://www.tpos.co.uk/members/codes-guidance



Comments

Paul Green

12:31 PM, 2nd November 2016
About 2 years ago

My question is as follows: what do you do if the tenant refuses access?

Mike Amapola

15:01 PM, 2nd November 2016
About 2 years ago

The NLA tenancy agreement, which I have used, allows for access to the property for the purpose of examining the state and condition of the property and to carry out any repairs or maintenance. At least 24 hours written notice must be given.
If a tenant refuses for no good/valid reason I would then consider that they are in breach of the agreement. I would also suspect they have something to hide. I would then suggest an appointment be made for a time and date for an inspection to be made. If they do not keep it and are not at home at the time requested I would consider it safe to enter the property. If concerned about any repercussions, perhaps show a copy of your letter/s to a local bobby telling him that you entend to enter the property as you have a key. It may be that the police are not interested anyway.

Paul Green

17:06 PM, 2nd November 2016
About 2 years ago

Thanks sounds reasonable and good advice ....I'll do that should I ever be in a situation we're a tenant refuses access. Luckily it's never happened yet. Touch wood...

Romain Garcin

17:17 PM, 2nd November 2016
About 2 years ago

"Within that written request, the tenant must be asked for their confirmation of whether or not access is acceptable."

It is not a request, it is a notice.

"However, the tenant must be given the opportunity to refuse access, if they so wish."

Well, no.

A landlord should try to find a mutually convenient time as a best practice, and to avoid aggravation, but he does not have to.

I'm wondering what prompted the TPO do add this change, especially since I suspect that the wording means that nothing will change in practice.

Mike Amapola

23:22 PM, 2nd November 2016
About 2 years ago

Reply to the comment left by "Romain Garcin" at "02/11/2016 - 17:17":

I wholeheartedly agree Romain. Avoid making it a big issue of it unless of course they are not willing to work with you, in which case you have to make your mind up on wether you want to put up with and keep tenants of this sort or not.

Industry Observer

11:41 AM, 7th November 2016
About 2 years ago

Just to be clear any time a tenant says "no entry" you do not go near the place. If you do the breach will be the Landlord's, as well as the tenant's. Landlord's is of quiet occupancy, tenant's is of the agreement, typically not acting in a tenant like manner. Statute always overrides contract, the tenant's rights are statutory, the Landlord's are contractual.

So guess which one any Court will regard as the more serious breach?

If the tenant does not object then the TPO guidance is saying silence is deemed to be acceptance of the visit. Course half the time if they are in when the key goes in the lock they will refuse entry, and if you argue and say you have the right they will change the locks. 'Twas ever thus.

But the TPO guidance is useful in confirming silence is acceptance. However do not believe that any amount of creative writing of agreement clauses will entitle you to access. If the tenant demurs in any way you keep away.

Romain Garcin

12:22 PM, 7th November 2016
About 2 years ago

Reply to the comment left by "Industry Observer " at "07/11/2016 - 11:41":

"Just to be clear any time a tenant says “no entry” you do not go near the place"

This is a good piece of advice, but it is not the law.

Likewise, it is not for the TPO to 'confirm' that silence is deemed acceptance, and they don't. In general silence isn't acceptance but this is not the point since a notice from the landlord isn't really a request that the tenant is entitled to deny, it is a notice that the landlord intends to use his right of access.

There is no need for creative writing. The landlord has a right of access for specific purposes as per an implied term of the tenancy, such term being added by law.

Andre Gysler

17:24 PM, 8th November 2016
About 2 years ago

So, for example, if a tenant has complained that there is little to no hot water pressure in the property and when the heating contractor attends the property, the tenant refuses access. Is this a situation where the LL can insist upon access to protect his investment (the heating system)?


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