When considering the range of problems our Property Litigation team are regularly asked to assist with, one issue that continues to be a persistent problem for social housing landlords, and indeed landlords more broadly, is their tenants’ refusal of access to properties for health and safety purposes.
What do we tend to see and why is this a problem?
Landlords have a duty to keep their properties safe for tenants, so routine gas and electric checks at their properties are essential to make sure the systems are in proper working order. However, we also see health and safety cases which are not specifically confined to gas and electric systems – rather, sometimes landlords become aware that tenants have installed their own appliances, including unauthorised solid fuel appliances, and wish to have the same removed if the appliances fall below the required standards. If issues with gas, electric or other systems are found to be in an unsatisfactory condition then the landlord will of course wish to see the works carried out in a prompt manner. Indeed, in the context of social housing landlords, many of their properties are in the same vicinity, and so not only does the landlord wish to protect that tenant in question whose property requires inspection, but also other tenants living in adjacent properties along with their visitors.
Unfortunately, time and time again, we are contacted by landlords who have exhausted their attempts to try and arrange inspections of their properties/remedial works with their tenants. Regardless of the number of emails, letters, telephone calls and attendances, landlords can often face radio silence from their tenants, meaning landlords can be trying for months, or even years, to get into their own properties. On other occasions landlords may receive some contact from the tenants who are prepared to book in appointments, however upon contractors attending the property, there is either no one home or the tenants refuse access there and then and repeatedly seek to rearrange. This is clearly problematic for landlords who not only wish to protect individuals living and visiting their properties, but who also wish to ensure the properties as their assets are in a satisfactory condition and are not at risk of serious issues coming about from defects.
Unless there is an emergency issue, landlords run the risk of being accused of unlawful conduct if they or their instructed contractors enter their properties without the tenant’s consent and do whatever needs to be done – this could be seen as interfering with a tenant’s right to peaceful enjoyment of their property, something which is usually given as a right of tenants within tenancy agreements. So, landlords need to cast their minds to pursuing applications for injunctions in order to compel the tenant to give access.
What can landlords do to gain access to their properties?
As mentioned, injunctive relief is the recommended course of action for landlords wishing to gain access to their properties to carry out gas and electric checks, or indeed other health and safety checks. It is particularly helpful if there is an express term of a tenancy agreement which involves the tenant agreeing to allow the landlord, or anybody working for the landlord, access into the property at reasonable hours to inspect the property or carry out works to it. As such, injunctions can be pursued on the basis that tenants are clearly in breach of the terms of their tenancy agreements, and we would encourage landlords, if litigation is necessary, to issue such a claim as a Part 8 Claim with accompanying evidence, usually by way of a Witness Statement from the landlord or a suitable representative of the landlord. With our social housing landlord clients in particular, there is often an individual with the designated role of Gas and Electrical Manager, and they are clearly best placed to be the witness in these types of cases.
We have seen much success in the County Courts with obtaining these injunctions in favour of landlords. Judges are often sympathetic to landlords in these situations if the paper trail of evidence clearly shows that the landlords have tried continually to access their properties but failed through no fault of their own. In our experience, Judges appreciate the necessity for landlords to ensure their properties are safe, and a dim view can be taken of tenants who refuse to cooperate with landlords for no good reason. Landlords are not asking the Court for anything which is particularly onerous – rather, if there is a flagrant breach of the terms of a tenancy agreement which the landlord has been unable to resolve without litigation, and if all that is required is a simple gas and electric test with a view to any necessary works being carried out thereafter, Judges recognise that the issues need to be addressed as soon as possible and we have found that correctly pleaded matters are nearly always concluded at a first hearing rather than directions being given and the listing of a Trial.
Practical considerations
As a matter of best practice, landlords should be as proactive as possible in dealing with these issues, particularly with the health and safety element. We would strongly advise all landlords to consider the following as practical measures:
- Evidence of the landlord trying to access a property is absolutely crucial, and so exhibited to the Witness Statement on behalf of the landlord should be copies of all letters, emails and text messages which have been sent to the tenant with a view to arranging access, along with any replies. It will not be enough for landlords to simply exhibit template correspondence to the Witness Statement, i.e. standard documents which the landlord says would have been sent to their tenants. Rather, Judges will wish to see copies of the exact correspondence in order to be satisfied that the tenants have indeed been contacted. If contact has been made with the tenants, and either the tenants have been uncooperative over the phone or simply not answered meaning voicemail messages have been left, then this should be explained within the body of the Witness Statement. If Judges do not consider that tenants have been given sufficient opportunity to allow access on their own accord then this is likely to mean that the entire claim will fail.
- As a matter of standard practice, and as mentioned above, we would recommend issuing claims on a Part 8 basis. In order to assist the Court as far as possible, we accompany the Part 8 Claim Form with a relatively short document titled ‘Basis of Claim’ which sets out which access clause within the tenancy agreement has been breached and what the landlord is seeking and why. There is clearly also the Witness Statement on behalf of the landlord which needs to form part of the claim papers, and an Application for an Injunction on Form N16A with accompanying Draft Order should be filed as well. When preparing the Draft Orders, it is important to seek that not only is the landlord entitled to access the property to carry out the necessary inspection, but also the landlord is entitled to carry out any works which are deemed necessary following that inspection. Whilst as a default position we would further seek that the terms of an Order remain in force until the expiry of the tenant’s tenancy agreement, Judges can see this as being excessive and quite commonly restrict the enforcement period of the Order to 6 months or one year.
- Upon filing a claim at Court and receiving the Notice of Issue with Notice of Hearing, it is necessary for the papers to be served upon tenants personally, and for this to be done in good time before the hearing. If personal service becomes an issue, which is commonplace with these types of cases due to tenants not answering the door in the first place and refusing to engage, an application for alternative service will need to be made. In an attempt to preempt this, when filing the claim for an injunction, we state within the Claim Form that the landlord as Claimant anticipates personal service of the papers on the tenant as Defendant may prove impossible, and so upon the landlord confirming that attempts will first be made to effect personal service of the papers, the landlord seeks to apply under CPR 6.15 for an Order permitting service by an alternative method, i.e. by posting the papers through the letterbox of the property. If this wording is included within the Claim Form then the Judge making the Order for the hearing may well take note of this and state within the Notice of Hearing that service through the letterbox is sufficient. Whilst it is very much at the discretion of the Judge considering the original papers, it is always useful to have this direction at an early stage as it avoids a formal application for alternative service being made and potentially having the listed hearing vacated so that this can be achieved.
If you would like to discuss any of the issues raised in this article, please contact David Low (djl@swinburnemaddison.co.uk) or Lewis Brown (lrb@swinburnemaddison.co.uk) or call our firm on 0191 384 2441.
