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7:57 AM, 8th April 2014, About 10 years ago 54
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I became a landlord about 10 years ago, as a pension investment. At that time, returns in my local area were relatively poor. I bought in an area that had 8-8.5% returns and had my properties managed locally.
I am a Chartered Surveyor with significant property management experience, so I believed that I came into the business with my eyes open. It was nevertheless a steep learning curve. After a few years I had to intervene to protect my tenants and my investments, and I now manage these properties myself. I am always at the end of the phone, even on holiday; most of the work on my properties is arranged as planned improvements or maintenance, usually following on from an inspection; and I hope that I provide as good a service as any managing agent (and I acknowledge that there are excellent agents out there; sadly, mine was not one of them!).
The local council has introduced selective licensing. I must make clear that I am not submitting this article in order to complain; whatever I feel about the policy is quite irrelevant. Most of the requirements are clear, and are either already in place, or easily achievable.
However there are several points that I find troubling, and suspect that other smaller investors like myself will have problems with the same issues. These are the problems I foresee, and my proposed solutions:
1) Requirement for monthly inspections. It would be inconvenient to carry these out personally, so I would contract out interim inspections. I will provide a suitable proforma to be completed, with photographic evidence, by an experienced contractor.
2) Antisocial behavior action plan. I take the view that, as a small investor, I have no choice but to issue warnings and if necessary refuse to renew the tenancy on expiry. Of course, if something serious happens long before expiry I would commence possession proceedings. My action plan will set out the behaviour I regard as sufficiently serious for these two options.
3) The requirement to notify tenants of their obligations. All of this is within the tenancy agreement, so I would propose to write to the tenants restating these terms.
4) There is a requirement for emergency and other arrangements in the event of the holder’s absence. In practice, I have always been at the end of the phone, wherever I am, and able to arrange repairs as normal. However, I propose to “nominate” an alternative contact, who will be another landlord like myself.
5) If I am unable to satisfy the Conditions, then it will be necessary to appoint a managing agent. I expect that I would still be required to submit the application in my own name, but with reference to the managing agent in the relevant sections of the form. I would presumably still be liable for any breaches, my only defence being to prove that I took steps to ensure that said agent were fulfilling their responsibilities under the conditions. In my opinion, it would be better to take full and direct responsibility, contracting others in to carry out parts of the requirement as necessary, so I will seek to obtain a licence on this basis.
I am very concerned that the impact of this new control would be to reject any landlord who does not live in the same town, or nearby, as unsuitable for three reasons:
– Sufficiently regular inspections carried out by the licence holder personally may not be practical (although, as said, I intend to arrange such inspections in a way that would satisfy the requirements)
– There would be a problem in attending a training course in the same town as my properties (although one day would not be an issue). I hope that the Council’s requirement here (which is not specified) would be reasonable.
– It might not be feasible for a landlord who does not live locally to take unspecified emergency action. Although the Conditions make no direct reference to personal availability in emergency, I suspect that this could be an implied criterion in assessing an application. I say “unspecified” because I have worked during evenings and weekends to arrange contractors for gas, electric and plumbing emergencies. However, in theory, there might be something that could require the “person in control” to attend immediately.
In summary, I am determined to personally fulfil the requirements of this licence, and would welcome a discussion on practicality for a small investor who is 1) not based locally and 2) has other employment. I am sure that other landlords like myself have successfully obtained and maintained licences, and are providing the service that the council is looking to achieve. However I have not found any discussion of this issue, and therefore hope that this article – and the responses to it! – will prove useful.
Regards
Philip Aston MRICS
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Reader
20:26 PM, 12th April 2014, About 10 years ago
Mary it is reassuring to read that you think the same over "quiet enjoyment". It is unfortunate that some councils have challenges to resolve regarding anti social behaviour but a thorough understanding of landlord and tenant law would assist THEIR suitability to licence.
Mary Latham
20:58 PM, 12th April 2014, About 10 years ago
Reply to the comment left by "Joe Bloggs" at "12/04/2014 - 20:21":
A simple question.
What do you suggest a landlord or agent does when a tenant refuses access for an inspection despite being given 24 hours written notice?
Reader
21:09 PM, 12th April 2014, About 10 years ago
Just to take the heat out of the discussion on rights of entry. It would be worth considering that while the tenant has rights arriving out of the tenancy the landlord also had rights but how these are to be exercised are subject to legal restrictions including case law that would support Mary's approach to entry.
I hope this issue can be signed off.
Fed Up Landlord
5:54 AM, 13th April 2014, About 10 years ago
Reply to the comment left by "Mary Latham" at "12/04/2014 - 19:47":
Mary thank you. I shall get in contact to do this ASAP.
Joe Bloggs
12:29 PM, 13th April 2014, About 10 years ago
Reply to the comment left by "Mary Latham" at "12/04/2014 - 20:58":
mary, im not sure why you seek my opinion on this (hopefully not to move the goalposts).
ive never had this problem, but if i did i would probably try and find out the reason. depending on the reason, i would probably:
- rearrange for a mutually convenient date
if that was still a problem i would
- give 24 hours notice as the act and go in anyway
if access was refused i would:
- seek possession and if appropriate notify police; or
- encourage the tenant leave; or
- leave the status quo (unlikely)
are you ready to revise your expert stated position on LL's right of access?
Joe Bloggs
13:17 PM, 13th April 2014, About 10 years ago
Reply to the comment left by "Reader " at "12/04/2014 - 21:09":
'Mary’s approach to entry' is that the tenant is within his right to refuse. she has supported this 'approach' with no caselaw or anything else. conversely i have drawn marys attention to statute.
Mark Alexander - Founder of Property118
13:20 PM, 13th April 2014, About 10 years ago
Reply to the comment left by "Joe Bloggs" at "13/04/2014 - 13:17":
I disagree.
Mary said ....
Joe Bloggs a quote from final paragraph of the article in your link
“The Landlord and Tenant Act 1985 make clear that landlords should not enter the property without the express permission of the tenant.”
.
Joe Bloggs
13:27 PM, 13th April 2014, About 10 years ago
Reply to the comment left by "Mark Alexander" at "13/04/2014 - 13:20":
mark, see my post of yesterday 20.21.
Mary Latham
17:32 PM, 13th April 2014, About 10 years ago
Reply to the comment left by "Joe Bloggs" at "13/04/2014 - 12:29":
From Landlord Law Blogg written by Tessa Shepperson - who is an acknowledged "expert" in Landlord and Tenant Law and is a qualified Solicitor.
"The Landlord and Tenant Act 1985 (c. 70) section 11(6) says that there is a covenant that the lessor, ie the landlord, may give 24 hours notice and then enter the premises.
This contradicts the covenant of quiet enjoyment (because the time may be inconvenient for the tenant). Legally, which covenant prevails?
There is some confusion here and different people hold different views.
My view is that the covenant of quiet enjoyment prevails. The landlord can enter under s11(6) but NOT if the tenant says he can’t.
This may put the tenant in breach of the terms of his tenancy agreement, but this will still not entitle the landlord to enter against his will. If he does, then this will be trespass and may also be deemed to be harassment (which is a criminal offence).
The only time the landlord has an absolute right to go in, is in case of emergency. For example if the property is on fire."
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From The office of fair trading document oft356 reads as follows:
3.32 We would object to a provision giving the landlord an excessive right to enter the rented property. Under any kind of lease or tenancy, a landlord is required by common law to allow his tenants ‘exclusive possession’ and ‘quiet enjoyment’ of the premises during the tenancy. In other words, tenants must be free from unwarranted intrusion by anyone, including the landlord. Landlords are unfairly disregarding that basic obligation if they reserve a right to enter the property without giving reasonable notice or getting the tenant’s consent, except for good reason.
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From the Shelter website.
Unreasonable behaviour by your landlord or letting agent which could count as harassment includes:
entering your home when you are not there or without your permission
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The reason for my question is this. Since you are convinced that a landlord or agent has the legal right to enter a tenanted property and that this overrides the tenants legal right to "Quite Enjoyment" and refusal, are you saying that the landlord can simply ignore the fact that the tenant has refused entry and force his way in? Are you also saying that where a tenant has changed the locks and not given the landlord a key the landlord can break in?
The question I am asked more often than any other is " Can my tenant change the locks and not give me a key" - My reply is "Yes unfortunately they can so long as they change them back or give you the keys when they vacate"
I have already made my opinion clear and backed it up with credible sources - if a tenant says no entry and the landlord has good reason to enter, which does not constitute an emergency, the landlord or Agent would need to get a Court Order.
I will now leave readers to make up their own minds.
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Philip Aston
22:00 PM, 13th April 2014, About 10 years ago
In management practice I believe Joe's point concerning the value of inspections is valid. As has been said, how and when we inspect depends on the case. When I was managing for clients, if my department had failed to carry out 3 monthly inspections and something then happened, the result would be predictable. Irrespective of value in preventing problems, this was a due diligence exercise. With my own properties, I need to assess the condition of the older buildings on a regular basis, typically 6 month to 1 yr, and the tenants so far have welcomed this approach. And there are some tenancies which need discreet scrutiny, and others which don't.
I say discreet because in my experience (managing agent again) if a tenant doesn't want the landlord there then we can write whatever we like in the agreement, but it will be of no importance. I had some fair rent situations where the only time anyone got through the door was with the Rent Officer present to review the rent (during the early 1990's, so the 85 act did not change the landlords' rights in this respect). This would suppport Mary's advice on the legal position. Naturally, in practice, with 6 month terms and shortholds in the periodic phase, if we meet with "attitude" we are probably going to serve notice, so the right to enter is not going to be tested.
I remain obliged to everyone who has taken the trouble to help me with my original issue, but must say I regret that the tone has at times become inappropriate and personal.
I am above all concerned with the de facto legal position here. IMHO the Licensing Authority have made up their minds on the value of inspections, so there would be no point in debating this with them; but they, like the rest of us, have to work within the law, and will not be able to impose licensing conditions that (probably) infringe the tenants' rights and (almost certainly) are unworkable.
I think it most unlikely that any statute or precedent would in practice and in real time enable a landlord to gain entry without consent in the normal course of events. Therefore I will be saying to the Licensing Authority:
"Yes, of course I carry out inspections, {for the reasons cited above} but these are consensual. L & T relations are like any other business connection: mutual and positive. If they are not, then there is something amiss that may well lead to the end of the tenancy within several months. But any legal right I may have to gain entry without consent is limited to emergency and is otherwise dubious. So while I will gladly undertake to use best endeavours to carry out inspections on a 3 monthly basis I will not enter into a binding contract with you to do so."
Since last post I have agreement with a local managing agent (a regular business contact) to carry out these interim inspections if it becomes necessary. I note that their opinion is 4 months after commencement and 6 monthly thereafter. 3 months is probably excessive in most cases and 1 month out of the question.