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Can A Letting Agent Show Somebody Around....


Fred
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They can if you are ok with it. If you arent then inform them they are not to enter the house until you leave.

If you have no issue with it then no problem, if you do have an issue with it make sure you tell them and ignore any of their statements about "its a clause in the contract etc" as it doesnt matter

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They are saying it says in the contract they can show somebody around in the last month.

Does this legally stand?

Could it stand... possibly (very small chance) but unlikely.

Given you have a month (or less) then they would not have time to go to court to force access even if it would be granted (which it probably wouldnt be for viewings). so if it was me i would say "do NOT come into the property until i have left", if they argue explain that it is not up for discussion, the clause is basically meaningless and you are prepared to take action against them if they enter.

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If you have no issue with it then no problem, if you do have an issue with it make sure you tell them and ignore any of their statements about "its a clause in the contract etc" as it doesnt matter

Just for the record if there is no clause allowing inspection by prospective tenants there is no way the landlord can insist on it.

If there is a clause then, as said above, opinions differ. In my opinion in the absence of clear guidance in a binding decision of the courts:

1. If the right is reserved the landlord has it.

2. Even though he has it, he is unwise to exercise it without the full co-operation of the tenant.

3. A tenant who declines reasonable co-operation runs the risk of being sued by the landlord for any loss flowing directly from a failure to co-operate. The risk may be low, but it is there nevertheless.

Edited by Damocles
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Letting agents vary in their degree of professionalism and integrity. The last rented place I was in a few years back the agents told me they would give me 24 hours notice and I replied saying that would be fine, but I insisted on being there and only if it suited me.

One morning after a very long journey the night before I was having an extra (much needed!) hour in bed, only to be woken by the sound of someone trying to get in the front door (which was deadbolted on the inside). Half an hour later I had a phone call from the agent saying they couldn't get in and had I changed the locks? No, I hadn't changed the locks thank you and what happened to the 24 hour notice?

The moral of the story is that it doesn't matter what they say, they'll do it anyway.

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Just for the record if there is no clause allowing inspection by prospective tenants there is no way the landlord can insist on it.

If there is a clause then, as said above, opinions differ. In my opinion in the absence of clear guidance in a binding decision of the courts:

1. If the right is reserved the landlord has it.

2. Even though he has it, he is unwise to exercise it without the full co-operation of the tenant.

3. A tenant who declines reasonable co-operation runs the risk of being sued by the landlord for any loss flowing directly from a failure to co-operate. The risk may be low, but it is there nevertheless.

As another poster has said, this is utter rubbish.

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Sorry Damocles,

3. A tenant who declines reasonable co-operation runs the risk of being sued by the landlord for any loss flowing directly from a failure to co-operate. The risk may be low, but it is there nevertheless

===========================

This was argued in the small claims court by my Landlord and he lost.

Just because you cannot find case law you assume an "opinion" and that is all - just your opinion.

One that is not shared by my excellant council "private tenants" advice workers, the CAB and the real lawyer I consulted.

You keep adding your opinions but your opinions are not backed by actual experience (or law) and are therefore worthless.

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Sorry Damocles,

(Not so in my experience and I've really been to court (small claims))

3. A tenant who declines reasonable co-operation runs the risk of being sued by the landlord for any loss flowing directly from a failure to co-operate. The risk may be low, but it is there nevertheless

===========================

You run a "risk" of being electrocuted by your computer as you type in this nonsense. The risk is small but it is there nevertheless.

Some "risks" are so small that constantly talking about them is a waste of everyone's time.

This point was argued in the small claims court by my Landlord and he lost.

Just because you cannot find case law you assume an "opinion" and that is all - just your opinion. The reason you cannot find case law is that it doesn't get to that stage. Therefore you are exaggerating the risk to try and scare someone.

Your "opinion" is not shared by my excellent council "private tenants" advice workers, the CAB and the real lawyer I consulted.

You keep adding your opinions but your opinions are not backed by actual experience (or law) and are therefore worthless.

Edited by Flopsy
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Are you able to cite authority for that opinion?

a summary of many legal websites:

In the covenant of quiet enjoyment, the landlord promises that during the term of the tenancy no one will disturb the tenant in the tenant's use and enjoyment of the premises. Quiet enjoyment includes the right to exclude others from the premises, the right to peace and quiet, the right to clean premises, and the right to basic services such as heat and hot water and, for high-rise buildings, elevator service. In many respects the implied covenant of quiet enjoyment is similar to an IMPLIED WARRANTY of habitability, which warrants that the landlord will keep the leased premises in good repair. For example, the failure to provide heat would be a breach of the implied covenant of quiet enjoyment because the lack of heat would interfere with the tenant's use of the premises and would also make the premises uninhabitable, especially in a cold climate.

Other rights related to quiet enjoyment may be tailored to specific situations. For example, at least one court has found that the ringing of smoke alarms for more than a day is an interference with a tenant's quiet enjoyment of leased premises (Manzaro v. McCann, 401 Mass. 880, 519 N.E.2d 1337 [1988]).

Tenants have at least two remedies for a landlord's breach of the covenant of quiet enjoyment: the tenant can cease to pay rent until the problem is solved, or the tenant can move out. A tenant who moves out may be liable for any rent owing under the agreement if a court decides that the landlord did not breach the covenant of quiet enjoyment.

A covenant of quiet enjoyment may be included in an exchange, or conveyance, of land ownership at the option of the parties to the deed. Quiet enjoyment has a slightly different scope in the context of land ownership than it has in the context of a tenancy. When a seller gives a deed to the land to another party, the seller no longer has control over the property. The covenant of quiet enjoyment, when contained in a deed to real estate, warrants that the title to the land is clear, meaning that it has no encumbrances, or claims against it by other persons.

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You run a "risk" of being electrocuted by your computer as you type in this nonsense. The risk is small but it is there nevertheless.

Some "risks" are so small that constantly talking about them is a waste of everyone's time.

This point was argued in the small claims court by my Landlord and he lost.

Just because you cannot find case law you assume an "opinion" and that is all - just your opinion. The reason you cannot find case law is that it doesn't get to that stage. Therefore you are exaggerating the risk to try and scare someone.

Your "opinion" is not shared by my excellent council "private tenants" advice workers, the CAB and the real lawyer I consulted.

You keep adding your opinions but your opinions are not backed by actual experience (or law) and are therefore worthless.

You do not know me. How do you know that I am not a real lawyer? How do you know that my opinions are not backed by actual experience? Does what I wrote in the first post in this thread: http://www.housepricecrash.co.uk/forum/index.php?showtopic=138346&st=0 really read as if it has been written by someone who, even if he is wrong, does not at least have some idea of the law? Do the 3000 odd posts I have made in LandlordZone as Lawcruncher , the 4000 odd posts made in Garden Law as Conveyancer and the 900 odd posts made on The Consumer Forums as Aequitas really read as if they have been written by someone whose opinions on legal matters can be dismissed as worthless? I could set out my legal experience, but since you have no way of checking it it would be a pointless exercise. I do though invite you to read at random a few of my posts in those other forums and come to you own conclusions as to whether I have experience and/or legal knowledge. What are your credentials for asserting that I write nonsense? Are you simply relying on the opinions of others?

I have all along here said that I am only expressing my opinion. As you correctly say, there is no authority I can point to that backs up my opinion. But that goes for the opposite view too. I have had to argue from basic principles. It may be that there is a fatal flaw in my argument. If there is, let someone point it out. I hear little in reasoned argument to refute my points. The constant mantra-like repetition that I am talking rubbish just will not do. Imagine you are in court faced with a lawyer who puts the same arguments I have. You cannot just jump up and say "[email protected]" or "The man at CAB said..." or "That nice lady at the Council told me I could." What arguments are you going to put forward?

That your landlord failed to impress the judge is not surprising. I have said that it is one thing having a right to claim and quite another proving your loss. Reading forums like this one you will find that judgements at county court level are often conflicting anyway.

Please be assured that I am not trying to scare anyone. I am no landlord's stooge and indeed no landlord - I do not even own property but am a tenant myself. I have from the very beginning urged that no landlord should enter property in the teeth of opposition by his tenant. Equally though, I have to insist that the legal position is not so black and white that a tenant can with confidence resist all requests for entry for a purpose he has agreed as a term of his tenancy; to maintain, pending clarification by a higher court, that that is not the case is in my opinion grossly irresponsible. It is all very well being on the side of tenants, but it does no good at all to misinform them of the law however well-intentioned you may be. I will state the law as I see. Does anyone suggest I should do other?

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quiet possession...its common law. above any contract condition.

It is not a common law right as such. In the absence of an express covenant the law implies one. The terms of an express covenant override anything implied by the common law. Since it is a covenant like any other, in the context of a lease it must be read with all the other provisions. It is not absolute. If you doubt this read this case: http://www.hmcourts-service.gov.uk/judgmentsfiles/j1522/goldmile_v_lechouritis.htm

a summary of many legal websites:

In the covenant of quiet enjoyment, the landlord promises that during the term of the tenancy no one will disturb the tenant in the tenant's use and enjoyment of the premises. Quiet enjoyment includes the right to exclude others from the premises, the right to peace and quiet, the right to clean premises, and the right to basic services such as heat and hot water and, for high-rise buildings, elevator service. In many respects the implied covenant of quiet enjoyment is similar to an IMPLIED WARRANTY of habitability, which warrants that the landlord will keep the leased premises in good repair. For example, the failure to provide heat would be a breach of the implied covenant of quiet enjoyment because the lack of heat would interfere with the tenant's use of the premises and would also make the premises uninhabitable, especially in a cold climate.

Other rights related to quiet enjoyment may be tailored to specific situations. For example, at least one court has found that the ringing of smoke alarms for more than a day is an interference with a tenant's quiet enjoyment of leased premises (Manzaro v. McCann, 401 Mass. 880, 519 N.E.2d 1337 [1988]).

Tenants have at least two remedies for a landlord's breach of the covenant of quiet enjoyment: the tenant can cease to pay rent until the problem is solved, or the tenant can move out. A tenant who moves out may be liable for any rent owing under the agreement if a court decides that the landlord did not breach the covenant of quiet enjoyment.

A covenant of quiet enjoyment may be included in an exchange, or conveyance, of land ownership at the option of the parties to the deed. Quiet enjoyment has a slightly different scope in the context of land ownership than it has in the context of a tenancy. When a seller gives a deed to the land to another party, the seller no longer has control over the property. The covenant of quiet enjoyment, when contained in a deed to real estate, warrants that the title to the land is clear, meaning that it has no encumbrances, or claims against it by other persons.

Your definition of what a covenant for quiet enjoyment means is perhaps wider than many would allow if it is to apply to the law for England and Wales; I note you quote a US case.

The essence of the covenant for quiet enjoyment is that the landlord should not interfere with the tenant's physical enjoyment of the property. That is not quite the same thing as saying that the tenant has an exclusive right of occupation. When it is said that a tenancy grants an exclusive right of occupation what it means is that the tenant does not share occupation of the property with anyone; you can still have exclusive occupation of property even if others enjoy rights over it - rights of way for example are often reserved over leasehold land.

Since the covenant for quiet enjoyment is not absolute whether the exercise of any right reserved by the landlord is a breach of it has to depend on degree.

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It is not a common law right as such. In the absence of an express covenant the law implies one. The terms of an express covenant override anything implied by the common law. Since it is a covenant like any other, in the context of a lease it must be read with all the other provisions. It is not absolute. If you doubt this read this case: http://www.hmcourts-...lechouritis.htm

Your definition of what a covenant for quiet enjoyment means is perhaps wider than many would allow if it is to apply to the law for England and Wales; I note you quote a US case.

The essence of the covenant for quiet enjoyment is that the landlord should not interfere with the tenant's physical enjoyment of the property. That is not quite the same thing as saying that the tenant has an exclusive right of occupation. When it is said that a tenancy grants an exclusive right of occupation what it means is that the tenant does not share occupation of the property with anyone; you can still have exclusive occupation of property even if others enjoy rights over it - rights of way for example are often reserved over leasehold land.

Since the covenant for quiet enjoyment is not absolute whether the exercise of any right reserved by the landlord is a breach of it has to depend on degree.

not my definition...just an implied term in all rental contracts.

It is also common sense....in that you in effect purchase the hire of a place...that is it is yours for the hire period....there is much case law on the rights of tenants in the case of, for example, the landlord wanting to carry out improvements...these are not to the advantage of the tenant, the hirer, and are therefore only acceptable in law if the work was to fix a serious fault.

letting strangers in the hired place is entirely the same...it is not to the advantage of the tenant and he will have the absolute right, backed by quiet enjoyment, to refuse.

In practice, Im sure most of us would co-operate and let visits occur at our convenience....I certainly have, and have taken advantage of viewing where tenants are in place on prospective rentals.

But, it is a concession, not a right.

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You do not know me. How do you know that I am not a real lawyer? How do you know that my opinions are not backed by actual experience? Does what I wrote in the first post in this thread: http://www.housepricecrash.co.uk/forum/index.php?showtopic=138346&st=0 really read as if it has been written by someone who, even if he is wrong, does not at least have some idea of the law? Do the 3000 odd posts I have made in LandlordZone as Lawcruncher , the 4000 odd posts made in Garden Law as Conveyancer and the 900 odd posts made on The Consumer Forums as Aequitas really read as if they have been written by someone whose opinions on legal matters can be dismissed as worthless? I could set out my legal experience, but since you have no way of checking it it would be a pointless exercise. I do though invite you to read at random a few of my posts in those other forums and come to you own conclusions as to whether I have experience and/or legal knowledge. What are your credentials for asserting that I write nonsense? Are you simply relying on the opinions of others?

I have all along here said that I am only expressing my opinion. As you correctly say, there is no authority I can point to that backs up my opinion. But that goes for the opposite view too. I have had to argue from basic principles. It may be that there is a fatal flaw in my argument. If there is, let someone point it out. I hear little in reasoned argument to refute my points. The constant mantra-like repetition that I am talking rubbish just will not do. Imagine you are in court faced with a lawyer who puts the same arguments I have. You cannot just jump up and say "[email protected]" or "The man at CAB said..." or "That nice lady at the Council told me I could." What arguments are you going to put forward?

To be honest, some of what you write comes across as well reasoned however your constant banging on about the tenant being sued for a possible loss makes all the rest of what you write look like you dont know what you are on about.

If you would like to know the fatal flaw in your arguement im happy to present it.

In order to sue for a loss the landlord must be able to PROVE 2 things, 1) that a loss occured and 2) the amount of the loss.

Taken in the context of a tenancy the landlord would therefore require (in order to PROVE their case) a prospective tenant who is happy to go to court and get involved in a case that is nothing to do with them to ascertain that 1) they would definately have taken the property if they had seen it from the date when the current tenant exits and that 2) they will not now be taking the property as they were not able to view it (and bear in mind that must be the ONLY reason) that they are not taking the property or again the case fails.

If said prospective tenant did turn up at court they would probably be looked upon as a biased witness (i am not sure of the exact legal term) as nobody in their right mind would say this is the case as the 2 statements are contradictary, unless they were basically a stooge of the landlord.

Unless the landlord is able to prove there was a loss (and how is this possible without the above) then no damages would be awarded.

Then we come to argument 2.. commonly known as having your cake and eating it. As a landlord (not saying you are one) you take a payment for a service (that being the property) for a defined period of time. The tenant is the legal occupier and has exclusive rights to the property (i have posted you links showing you this already) other than for a cause of damage investigation liable to cause the landlord costs (even then as you have agreed previously the landlord may have to go to court to exercise those rights). Given this any landlord taking a tenant to court because they wont allow viewings will be told to wait until the current tenant has vacated. Flopsy has experienced this case and as i have said previously i have checked with legal people i work with (and i work with a lot of them) who all confirm exactly that.

So the only "warning" you should be posting is as follows (and its to landlords).. Dont sue your tenant for damages because they have stopped you from showing people around the property they are the legal occupier of otherwise you risk being liable for costs.

I hope this is clear enough .. but somehow i doubt it will be

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3. A tenant who declines reasonable co-operation runs the risk of being sued by the landlord for any loss flowing directly from a failure to co-operate. The risk may be low, but it is there nevertheless

===========================

This was argued in the small claims court by my Landlord and he lost.

On what grounds?

My guess would be that your case hinged on the reasonableness of the cooperation that was denied. Your case might be altogether different to someone else's.

Unless of course you can expand on that and convince me otherwise.

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because you talk utter [email protected]

you'd be doing a good job if the rest of us hadn't intervened.

I admit,I'm a loon for quiet enjoyment,but this site has a wealth of really good posters with genuine experience of either being a landlord-cartimandua,Matt H or beign a tenant Matt H,bloo etc and then a host of others like tim123,rozza who's background I don't know much about.

I read their posts,as they are informative,reasoned and concise.you jsut drivel on.havign 4000 + posts on some corner of the interweb doesn't qulaify you in anyway.if they're anything liek the stuff you subject us to,then really,I suggest for your sake you get another hobby.

I have clearly failed to persuade I am a lawyer. Fair enough.

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letting strangers in the hired place is entirely the same...it is not to the advantage of the tenant and he will have the absolute right, backed by quiet enjoyment, to refuse.

I am not saying that this is not the conclusion that the Court if Appeal may come to one day on this point, but at the moment I can see no justification for coming to it where the tenant has conceded the right as a term of the tenancy. By signing the agreement with the term in it he has already agreed. As the case I quote above clearly shows, the covenant for quiet enjoyment is not absolute.

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To be honest, some of what you write comes across as well reasoned however your constant banging on about the tenant being sued for a possible loss makes all the rest of what you write look like you dont know what you are on about.

If you would like to know the fatal flaw in your arguement im happy to present it.

In order to sue for a loss the landlord must be able to PROVE 2 things, 1) that a loss occured and 2) the amount of the loss.

Taken in the context of a tenancy the landlord would therefore require (in order to PROVE their case) a prospective tenant who is happy to go to court and get involved in a case that is nothing to do with them to ascertain that 1) they would definately have taken the property if they had seen it from the date when the current tenant exits and that 2) they will not now be taking the property as they were not able to view it (and bear in mind that must be the ONLY reason) that they are not taking the property or again the case fails.

If said prospective tenant did turn up at court they would probably be looked upon as a biased witness (i am not sure of the exact legal term) as nobody in their right mind would say this is the case as the 2 statements are contradictary, unless they were basically a stooge of the landlord.

Unless the landlord is able to prove there was a loss (and how is this possible without the above) then no damages would be awarded.

Then we come to argument 2.. commonly known as having your cake and eating it. As a landlord (not saying you are one) you take a payment for a service (that being the property) for a defined period of time. The tenant is the legal occupier and has exclusive rights to the property (i have posted you links showing you this already) other than for a cause of damage investigation liable to cause the landlord costs (even then as you have agreed previously the landlord may have to go to court to exercise those rights). Given this any landlord taking a tenant to court because they wont allow viewings will be told to wait until the current tenant has vacated. Flopsy has experienced this case and as i have said previously i have checked with legal people i work with (and i work with a lot of them) who all confirm exactly that.

So the only "warning" you should be posting is as follows (and its to landlords).. Dont sue your tenant for damages because they have stopped you from showing people around the property they are the legal occupier of otherwise you risk being liable for costs.

I hope this is clear enough .. but somehow i doubt it will be

Really I do not think we are far apart when it comes to practicalities. Everything you say about the difficulty of a landlord proving his case is true. It would also not surprise me if any landlord wanting access during the last month is given short shrift by a county court judge. However, whatever difficulties there may be does not change the position in law. One of these days a landlord with a large portfolio and deep pockets is going to decide he wants to know where he stands. He will get organised and make his case properly. He will produce records and reports prepared by accountants and surveyors showing how much he loses through not being able to show prospective tenants over until the current tenant has vacated. Tenants saying how keen they were to look over the property and sign up as soon as the current tenant was out will all take the stand. It will be like the Jiff Lemon case. Then hopefully we will have a better idea of where we stand.

I would agree that the landlord with one or two properties is ill-advised to go suing a tenant for a month's loss of rent unless perhaps he is also suing for something else. We can I hope also agree that we ought not to be encouraging tenants to rush off and claim damages where a landlord has entered while he was out and left the place as he found it.

My sole reason for getting involved in this question is to try and bring home that it is not as black and white as some would have us believe. People may think simple laws are desirable, but simple laws strictly enforced lead to injustice.

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One of these days a landlord with a large portfolio and deep pockets is going to decide he wants to know where he stands. He will get organised and make his case properly. He will produce records and reports prepared by accountants and surveyors showing how much he loses through not being able to show prospective tenants over until the current tenant has vacated. Tenants saying how keen they were to look over the property and sign up as soon as the current tenant was out will all take the stand. It will be like the Jiff Lemon case. Then hopefully we will have a better idea of where we stand.

Firstly Never going to happen, a landlord can rock up with a million surveyors, accountants an surveyors showing how much he "could" lose by not being able to show tenants around, but he cannot prove he "HAS" sustained a loss as non has occured. The jiff lemon case has nothing to do with it in any way.

The prospective tenant is key, where would you find a tenant who will say they would definately have taken the property if they had seen it, as the judge would apply a common sense argument here.. i.e "if you can ascertain having not seen the property that you would have taken it if you had seen it, then we can also ascertain you would have taken the property without seeing it otherwise your first statement is false"

Despite this no prospective tenant will take the stand, nothing to do with tenants sticking together or any of that... just simply "why would they" they have nothing to gain.

Secondly the other key point is the legal occupier thing... The judge simply tell the landlord that they can (and probably did) conduct viewings from the dates the tenant vacated so hence there is no problem.

We can I hope also agree that we ought not to be encouraging tenants to rush off and claim damages where a landlord has entered while he was out and left the place as he found it.

I sort of agree, as in two wrongs do not make a right, however the bottom line is the landlord should not be there in this instance so if the tenant wanted to claim damages (they would probably not succeed in this), i wouldnt encourage tenants to claim but also wouldnt blame them either, as i previously stated the landlord handed over possesion of the property in exchange for money

My sole reason for getting involved in this question is to try and bring home that it is not as black and white as some would have us believe.

I think (and sorry to sound accusatory) that is a disengenous statement, if that was your sole reason you would not be posting the same point across every post on every forum you can get to

Actually i would love a landlord to take this to court, and given that we are using the example of one who has enough money to have teams of accountants and surveyors and yet is bothered by trying to sue for the "loss" of a few pounds (lets say a weeks rent that in your definition 'lost') i hope they come against a tenant who has been on here and is informed... actually no.. lets make it a lawyer who happens to be a tenant. so we get to see both sides of the argument presented fully.

If this does happen could somebody let me know as id like to put a bet on the case down the bookies, it will be like betting on the grand national with only one horse running :P

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I am not saying that this is not the conclusion that the Court if Appeal may come to one day on this point, but at the moment I can see no justification for coming to it where the tenant has conceded the right as a term of the tenancy. By signing the agreement with the term in it he has already agreed. As the case I quote above clearly shows, the covenant for quiet enjoyment is not absolute.

no. Unfair contract terms cant be enforced.

common and statute laws both form part of every contract and cant be overridden.

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no. Unfair contract terms cant be enforced.

Agreed. However, I am having difficulty seeing which of the terms listed in Schedule 2 to The Unfair Terms in Consumer Contracts Regulations 1999 applies; even if the list of terms in the schedule is non-exhaustive it is still indicative.

common and statute laws both form part of every contract and cant be overridden.

If we are talking of rights of this kind, then there are three possibilities:

1. You can never contract out of the right.

2. You can contract out of the right if certain procedures are followed.

3. You can contract out of the right simply by agreeing to do so.

A tenant's right to quiet enjoyment arises from a covenant, whether express or implied. That covenant is treated like any other. If two covenants, one by the landlord and by by the tenant, appear to conflict with each other, the first task of the court is to see if there is any way the two can be reconciled:

It is axiomatic that where the provisions of any contract, including a lease, come into conflict, they are to be interpreted and applied so as to give proper effect, if possible, to both of them.

Goldmile[/i] case: http://www.hmcourts-...lechouritis.htm ]

Whilst it is true that allowing prospective tenants, purchasers and lenders to inspect is of no benefit to the tenant, that does not mean that it is wholly unreasonable. A tenant is after all required to pay rent and that is wholly for the benefit of the landlord!

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