Blue Peter Posted October 5, 2010 Share Posted October 5, 2010 Can I just confirm that we don't have to allow prospective buyers, or the estate agent, in to do viewings while we are still renting the place? Peter. Quote Link to comment Share on other sites More sharing options...
tim123 Posted October 5, 2010 Share Posted October 5, 2010 Can I just confirm that we don't have to allow prospective buyers, or the estate agent, in to do viewings while we are still renting the place? Peter. No, you don't have to! tim Quote Link to comment Share on other sites More sharing options...
Blue Peter Posted October 5, 2010 Author Share Posted October 5, 2010 No, you don't have to! tim Cheers, Peter. Quote Link to comment Share on other sites More sharing options...
Blue Peter Posted October 6, 2010 Author Share Posted October 6, 2010 x2 right to quiet enjoyment. it's a statutory right and therfeore effectively makes any contractual term that you may have signed up to,to allow visits,worthless. I was going to add that allowing EA visits and prospective punter visits in the last month is in my contract. Do we hava any legal rulings that I could use if I make a stand about this? Peter. Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 6, 2010 Share Posted October 6, 2010 I was going to add that allowing EA visits and prospective punter visits in the last month is in my contract. Do we hava any legal rulings that I could use if I make a stand about this? Peter. If there are any "legal rulings" I have never seen them. Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 6, 2010 Share Posted October 6, 2010 the right to quiet enjoyment is enshrined in statute.end of story As I have asked before: What statute is that then? Almost everything you say about harassment is true, but "entering your home when you are not there, without your permission" is not on its own harassment. Quote Link to comment Share on other sites More sharing options...
Blue Peter Posted October 7, 2010 Author Share Posted October 7, 2010 As I have asked before: What statute is that then? Almost everything you say about harassment is true, but "entering your home when you are not there, without your permission" is not on its own harassment. In this case, it's whether I have to give permission to allow agents and their punters to wonder round my home, Peter. Quote Link to comment Share on other sites More sharing options...
Blue Peter Posted October 7, 2010 Author Share Posted October 7, 2010 The point is that you gave permission when you signed the agreement. The question is rather whether you are entitled, notwithstanding what you agreed, to prevent access and, if so, in what circumstances. Whilst in practice there is little a landlord can do if a tenant refuses access, that does not mean that a tenant is entitled to refuse it. And the answer to the question is? A brief perusal of the forum suggests that the proposed answer is that it is an unfair term in the contract because it interferes with my right to quietly enjoy my home or whatever the term is. Is there any merit in that argument? Peter. Quote Link to comment Share on other sites More sharing options...
Flopsy Posted October 7, 2010 Share Posted October 7, 2010 (edited) Peter, I've been through it many times myself. Not been able to find any case law. I restrict viewings for these reasons 1. In the small claims court I faced a LL who would not return my deposit. This was largely for the reason he wanted to redecorate the flat using my money etc. However the LL also argued that he had lost money because I wouldn't allow viewing. I explained why and the adjudicator was happy with that. The adjudicator said that my right to "peaceful enjoyment" over-rides the LL right to viewings for the purpose of renting again. 2. I obtained a legal opinion using my home insurance legal cover on this matter at yet another dispute. At that stage I was allowing viewings on a Wednesday when my cleaner was there. It was felt that I was being reasonable. That was my choice and I did not feel harassed or that my rights to "peaceful enjoyment" were disturbed by this arrangement. The LL obviously disagreed. 3. A LL hired a lawyer to try and force viewings on another occasion. The LL was trying to sell the property and had given the key to EA's. I was being harassed by phone calls, visits etc. I kept a log of these and replied to the Lawyer. The Lawyer advised the LL to back off and aplogised to me. It's all down to negotiations and a battle of wills. Some people don't mind viewings and ask for a lower rent or an upfront written reference. I think that there is no case law on this topic because LL's are not bringing legal cases against tenants. The reason that they are not doing this because of the harassment/right to peaceful enjoyment angle. That has been my experience. Edited October 7, 2010 by Flopsy Quote Link to comment Share on other sites More sharing options...
Blue Peter Posted October 7, 2010 Author Share Posted October 7, 2010 Peter, I've been through it many times myself. Not been able to find any case law. I restrict viewings for these reasons 1. In the small claims court I faced a LL who would not return my deposit. This was largely for the reason he wanted to redecorate the flat using my money etc. However the LL also argued that he had lost money because I wouldn't allow viewing. I explained why and the adjudicator was happy with that. The adjudicator said that my right to "peaceful enjoyment" over-rides the LL right to viewings for the purpose of renting again. 2. I obtained a legal opinion using my home insurance legal cover on this matter at yet another dispute. At that stage I was allowing viewings on a Wednesday when my cleaner was there. It was felt that I was being reasonable. That was my choice and I did not feel harassed or that my rights to "peaceful enjoyment" were disturbed by this arrangement. The LL obviously disagreed. 3. A LL hired a lawyer to try and force viewings on another occasion. The LL was trying to sell the property and had given the key to EA's. I was being harassed by phone calls, visits etc. I kept a log of these and replied to the Lawyer. The Lawyer advised the LL to back off and aplogised to me. It's all down to negotiations and a battle of wills. Some people don't mind viewings and ask for a lower rent or an upfront written reference. I think that there is no case law on this topic because LL's are not bringing legal cases against tenants. The reason that they are not doing this because of the harassment/right to peaceful enjoyment angle. That has been my experience. Cheers for all that. We've got a good relation with the agent, and the owner has presumably been okay (had no dealings with him). So a nuanced approach may be the best way forward, e.g. the agent's got a contractor coming round to do some work, so the EPC guy can come then, rather than us have to worry about letting them in. No harrassment for us. As a matter of interest, did you have "let in in the last month of tenancy" clauses in your contracts, Peter. Quote Link to comment Share on other sites More sharing options...
Blue Peter Posted October 7, 2010 Author Share Posted October 7, 2010 To the OP,I would advise you strongly to get legal advice if you have any doubt,thay have absolutely no way of showing people round your home if you do not want them to. the serious,knowledgeable psoters on here eg matt henson,rozza,cartimadua,macguffin all accept what's been stated. Cheers Pedro. I don't think that it will come to that, we've got a good relation with the agent, and I would hope that we could come to an arrangment if it proved a problem. I can't really imagine that the house will be in much of a state for viewings, since we are moving out, and obviously there will be stuff everywhere (my do we have a lot of stuff!), Peter. Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 10, 2010 Share Posted October 10, 2010 And the answer to the question is? A brief perusal of the forum suggests that the proposed answer is that it is an unfair term in the contract because it interferes with my right to quietly enjoy my home or whatever the term is. Is there any merit in that argument? Peter. It is entirely possible that the majority view on this forum is correct. There is a lot of talk about "quiet enjoyment". There is no such thing as a statutory right to quiet enjoyment. There is not even such a thing as a common law right to quiet enjoyment as such. What the common law does is to imply, except to the extent that the agreed terms provide otherwise, a covenant for quiet enjoyment. An express covenant for quiet enjoyment overrides what the common law provides. The essence of a covenant for quiet enjoyment, whether express or implied, is that the landlord will allow the tenant to occupy the property without interference. Now it is a covenant and like any covenant may have to be interpreted in the context of the agreement as a whole. Since the right to quiet enjoyment arises by virtue of a covenant it is not absolute. Contributors have agreed it is not absolute because they have conceded it does not apply in other circumstances e.g. repairs. You cannot insist that it is absolute in one area but not in another. So, if on the one hand we have a clause that says the tenant will allow inspections and on the other a landlord's covenant for quiet enjoyment they appear on the face of it to be incompatible. What I think we have to do is to assume that each clause is rewritten having regard to the other. That will leave the tenant's clause modified to provide that the inspections are not to cause unreasonable interference with the tenant's enjoyment of the property, and the landlord's clause modified so that the inspection by prospective tenants shall not be deemed to be an interference. It comes down to a question of degree. Quote Link to comment Share on other sites More sharing options...
Rozza Posted October 10, 2010 Share Posted October 10, 2010 Cheers Pedro. I don't think that it will come to that, we've got a good relation with the agent, and I would hope that we could come to an arrangment if it proved a problem. I can't really imagine that the house will be in much of a state for viewings, since we are moving out, and obviously there will be stuff everywhere (my do we have a lot of stuff!), Peter. It always helps if everyone can agree and get on, so if an arrangement suits all parties then why not. Failing that if you dont want viewings, then you can look at the quiet enjoyment aspect, or you can look at a far simpler aspect. While you are renting the property you are the legal occupier, and as such have absolute right over entry other than against legally appointed officials (police etc). The landlord is allowed access with your consent for inspection and to carry out his/her legal duties and you should not obstruct that. Viewings are in no part related to the legal duty so the ball is in your court, if viewings dont bother you or you come to an arrangment then cool, if the do bother you or you cant agree then simply state "no viewings" and theres not a whole lot they can do about it. Quote Link to comment Share on other sites More sharing options...
Bloo Loo Posted October 10, 2010 Share Posted October 10, 2010 Allow viewings on your nudist days. Quote Link to comment Share on other sites More sharing options...
Rozza Posted October 10, 2010 Share Posted October 10, 2010 So, if on the one hand we have a clause that says the tenant will allow inspections and on the other a landlord's covenant for quiet enjoyment they appear on the face of it to be incompatible. What I think we have to do is to assume that each clause is rewritten having regard to the other. That will leave the tenant's clause modified to provide that the inspections are not to cause unreasonable interference with the tenant's enjoyment of the property, and the landlord's clause modified so that the inspection by prospective tenants shall not be deemed to be an interference. Cant do that im afraid, as if you say "inspection by prospective tenants is not an interference" then what if the landlord wants 50 viewings on 1 day? Thats an interference. I agree with you it comes down to degree but we both know we disagree massively on this one Also, both of your rewritten clauses would go in favour of the landlord, the landlord still gets his right to inspections (which is fair) but gains the right to show tenants and the tenant loses the right to say no. So i propose the following easier answer. Get landlords to understand that they sign away rights of access for whatever the hell they want when they rent a property and leave things as they are. Any landlord that cant afford a void shouldnt be a landlord and any that try to force viewings on a tenant despite not having the right to do so should be arrested for harassment IMHO! Quote Link to comment Share on other sites More sharing options...
Flopsy Posted October 10, 2010 Share Posted October 10, 2010 (edited) I think that is why in real life, the LL's don't win these fights - Rozza, unless they use blackmail or bribery. We simply don't have LL's taking tenants to court to force viewings or to sue for losses when viewings have been refused. People on this forum can argue until they are blue in the face their interpretation of what the clauses/laws are but until it is tested in court we can only go with the status quo. In my own small claims court case and the legal opinion I obtained the LL's viewpoint was not judged to be correct. That is by real legal people - not someone on a forum who has no experience. In the real world, the right to "quiet enjoyment" is over riding any LL's rights to force entry in non-urgent cases. It patently obvious that this is the case and that is why we don't see the LL's interpretation being enforced by the courts. In the real world the LL usually threatens not to give a reference or some other level to try and force the poor tenant into doing what the LL wants. Trying to scare people here with hypothetical situations on imaginary cases based on one person's interpretation isn't much help here. Edited October 10, 2010 by Flopsy Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 10, 2010 Share Posted October 10, 2010 Cant do that im afraid, as if you say "inspection by prospective tenants is not an interference" then what if the landlord wants 50 viewings on 1 day? Thats an interference. I agree with you it comes down to degree but we both know we disagree massively on this one Also, both of your rewritten clauses would go in favour of the landlord, the landlord still gets his right to inspections (which is fair) but gains the right to show tenants and the tenant loses the right to say no. So i propose the following easier answer. Get landlords to understand that they sign away rights of access for whatever the hell they want when they rent a property and leave things as they are. Any landlord that cant afford a void shouldnt be a landlord and any that try to force viewings on a tenant despite not having the right to do so should be arrested for harassment IMHO! We should not dwell too long on my reworded clauses as they were just dashed off . In practice a court would not literally reword the agreement, but simply consider how the two clauses interact. Consider section 11 (6) of the LTA 1985: In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair. We are I think agreed that this must be enforceable because it is contained in a statute. Interpreted literally, the landlord could inspect every day (and indeed more frequently) so long as he gave notice. No court would ever allow that. It would clearly a breach of the covenant for quiet enjoyment. The landlord can only inspect at reasonable intervals (say every six months) or if he has notice of a want of repair. Just because the clause has the potential to be abused if interpreted literally does not make it incompatible with the covenant for quiet enjoyment. Now consider this clause: During the last month of the tenancy to allow any prospective tenant with written authority from the Landlord or the Landlord’s agent to enter the Property at any reasonable time on not less than 24 hours' notice to view it Even though it relates to access for a different purpose, we can make similar observations. Obviously 50 inspections a day is not on. Setting aside half an hour a week is surely not unreasonable. I hesitate to suggest what frequency you need to get to before it starts to be unreasonable. Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 10, 2010 Share Posted October 10, 2010 I think that is why in real life, the LL's don't win these fights - Rozza, unless they use blackmail or bribery. No doubt right. We simply don't have LL's taking tenants to court to force viewings or to sue for losses when viewings have been refused. Agreed. However that is because it is generally not worth it. You do not get a lot of people suing for the five pounds they lent a bloke down the pub. In fact we do not know if there have been cases in the County Court that we have not heard about. People on this forum can argue until they are blue in the face their interpretation of what the clauses/laws are but until it is tested in court we can only go with the status quo. If we do not know what the law is we do not know what the status quo is. All we have is a body of opinion. In my own small claims court case and the legal opinion I obtained the LL's viewpoint was not judged to be correct. Fine. Another court, another decision; another lawyer, another opinion. That is by real legal people - not someone on a forum who has no experience. I do not know if that is addressed to me, but I am a real legal person and do have plenty of experience. In the real world, the right to "quiet enjoyment" is over riding any LL's rights to force entry in non-urgent cases. It patently obvious that this is the case and that is why we don't see the LL's interpretation being enforced by the courts.In the real world the LL usually threatens not to give a reference or some other level to try and force the poor tenant into doing what the LL wants. There is a difference between forcing entry and seeking to exercise a right of entry. Clearly landlords should not use force or issue threats. What I am concerned with is when a landlord rings up and says he has someone who is interested in taking the property and politely enquires when it would be convenient to call. Trying to scare people here with hypothetical situations on imaginary cases based on one person's interpretation isn't much help here. Again, I do not know if that is addressed to me, but assume it is. Look, I have no wish to scare people. I see it like this: people are making bold assertions here about what the law is, but cannot sustain them with sound analysis and reasoning. They just keep asserting them and saying things like: "It's patently obvious." It is all too easy for someone seeking to know the law on something to home in on opinions that favour his position and to believe that that is the law. Thousands issued proceedings against the banks based on opinions they read on the internet. They ended up bitterly disappointed - at least so far. I do not insist that I am right. I simply ask people to consider what I say allowing for the possibility that the majority view may be wrong. Quote Link to comment Share on other sites More sharing options...
Rozza Posted October 11, 2010 Share Posted October 11, 2010 In the real world the LL usually threatens not to give a reference or some other level to try and force the poor tenant into doing what the LL wants. Trying to scare people here with hypothetical situations on imaginary cases based on one person's interpretation isn't much help here. Totally agree with you, Damocles is determined his point could be valid, which is fine but given that he agrees its unlikely i dont see why the need to tell everyone who asks "do i have to allow viewings" that they could end up in court. Far more productive to say "IMHO No you dont!" and let them find the many people sating the same. Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 11, 2010 Share Posted October 11, 2010 Totally agree with you, Damocles is determined his point could be valid, which is fine but given that he agrees its unlikely i dont see why the need to tell everyone who asks "do i have to allow viewings" that they could end up in court. I fear you have misunderstood my position. I think it is more likely that I am right than wrong. The thing about the law is that you can put forward arguments as to what you think it is, but in the end the law is what a court says it is. If the question comes up before the High Court and full legal arguments are heard I think it likely that the court will find that a tenant cannot refuse a landlord's reasonable request for access to show over prospective tenants. On the other hand the court may conclude that even one viewing is excessive. The plain fact is that at the moment we cannot say with any certainty what the legal position is. I am perfectly aware of the practicalities here and have no problem with tenants being advised that if they refuse access there is not a lot a landlord can do to force the issue. However, to insist that the law is totally on their side and that no consequences can possibly follow is, in my view, irresponsible. (Just for the record we are talking here about refusing access for viewings by prospective tenants where the tenancy agreement provides for it. Where the agreement is silent about such viewings the tenant is perfectly entitled to decline to allow them.) Quote Link to comment Share on other sites More sharing options...
Tiger Woods? Posted October 12, 2010 Share Posted October 12, 2010 The argument I have always used to reject visits when I am not at home is that it would invalidate my contents insurance (which it does.) Otherwise, I tend to be as helpful and reasonable as possible in terms of allowing prospective new tenants to view the property - what goes around comes around etc. This of course all goes out the window if the LL has been a *****. Quote Link to comment Share on other sites More sharing options...
Riedquat Posted October 12, 2010 Share Posted October 12, 2010 Isn't there a right to privacy in law too? Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 12, 2010 Share Posted October 12, 2010 The argument I have always used to reject visits when I am not at home is that it would invalidate my contents insurance (which it does.) Not a valid legal argument. Quote Link to comment Share on other sites More sharing options...
Damocles Posted October 12, 2010 Share Posted October 12, 2010 Isn't there a right to privacy in law too? Not really, no. Quote Link to comment Share on other sites More sharing options...
Bloo Loo Posted October 13, 2010 Share Posted October 13, 2010 Courts read a covenant of quiet enjoyment between the Landlord and Tenant into every rental agreement, or tenancy. Thus a renter, or tenant, has the right to quiet enjoyment of the leased premises regardless of whether the rental agreement contains such a covenant. in other words, you get quiet enjoyment as of right, even if its not in the agreement.....and you certainly cant write it out. Quote Link to comment Share on other sites More sharing options...
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