What is an access injunction?
Landlords/freeholders might think that their leases and/or tenancy agreements are a ticket to take matters into their own hands when a leaseholder/tenant refuses and/or ignores requests for access to a property. References in this article to a landlord/freeholder will be termed as the “landlord” and tenant/leaseholder as the “tenant”.
Where such circumstances arise, landlords may need to apply to court for an order forcing the tenant to facilitate access (“Access Injunction”) which puts a stop to any continuing conduct which might be causing damage to the landlord’s property. An injunction carries weight due to the penal notice attached to it which, if breached, will result in the tenant being in contempt of court.
There are however steps that a landlord must first exhaust beforehand, as an injunction is a serious remedy that should only be used as a last resort. This article will consider the practical steps that a landlord can take if faced with a challenging tenant.
Who do they apply to?
Firstly, in what types of scenarios can a refusal of access arise? This situation can arise in both a commercial and residential landlord and tenant context. Landlords of residential properties may find themselves in this predicament more often due to the issues that can manifest in a building containing multiple flats.
What does the lease say?
Leases typically contain a standard clause allowing a landlord a right of access to the property on reasonable notice for the purpose of inspecting the property or carrying out work. Landlords will have statutory, regulatory and contractual obligations which may require access to the property to fulfil these obligations.
Such clauses often given landlords a right to enter the property without reasonable notice in the event of an emergency. These clauses give rise to the question of whether a landlord can force entry into the property if the lease gives the landlord a right to enter, but the tenant is not facilitating entry. The short answer is that the landlord cannot simply force entry.
What should a landlord do if the tenant is refusing and/or ignoring access requests?
Whilst seemingly a basic step, landlords and/or their managing agents must ensure that any requests are recorded in writing. These requests can be text messages, emails or letters. Ensure that records are kept of the number of attempts made to contact the tenant and a note of how they have been made.
If written attempts are having minimal effect, landlords should attend the property and attempt to speak to the tenant directly. It is recommended that a third party attend the property with the landlord to act as a witness, if the tenant is obstructive.
It is also useful to speak to neighbours and ascertain whether the tenant is living in the property.
The primary question on a landlord’s mind is likely to be whether they can break down the door having made numerous attempts to contact the tenant. Taking such action without the approval of the court can lead to a trespass claim by the tenant amongst other claims such as breach of quiet enjoyment.
How long can a landlord leave it before needing to take action?
The issue can become severe for landlords very quickly, sometimes in a matter of days or weeks.
The severity of the situation will depend on what the reason for access is. If access is required to carry out a gas safety inspection, this will place a landlord in breach of its statutory requirements. Alternatively, there may be a leak within the property in question which is emanating into other parts of the building occupied by other tenants, or even the landlord. The landlord needs to take urgent decisive action to stop any leak before it causes wider damage.
If there is a genuine emergency, where action needs to be taken on the same day, for example a gas or water leak which is endangering safety, a landlord may take a calculated commercial decision to remove the lock from the front door and enter the property. If this is done, it should be with the police in attendance and ideally with video evidence obtained. Landlords should tread carefully with taking such action and seek legal advice before doing so.
Apply to court
In all other circumstances, a landlord should apply to court for an injunction. It is recommended that a landlord instruct a solicitor to make the application. As a pre-requisite to making the application, the landlord should send a formal letter before action to the tenant setting out its case.
On application to court, there is a strict legal test to be applied. Firstly, the landlord needs to demonstrate that there is a serious claim to be tried, in other words, the landlord has a good arguable case. Secondly, the landlord must demonstrate that the balance of convenience is such that the inconvenience or damage suffered by the landlord by not having the injunction is greater that the inconvenience or damage caused to the tenant if the injunction is granted.
Non-compliance with the injunction
Landlords may find that after the court has granted the injunction, the tenant has reverted to its old ways by not complying with the injunction to facilitate access.
If this is the case, the landlord can enforce the injunction by making an application to court pursuant to rule 70.2A of the Civil Procedure Rules (CPR).
CPR 70.2A is a provision in which a landlord (or another party) can apply to be granted permission to carry out the act that the tenant was meant to do pursuant to the injunction. The issue however is that the act the landlord will be asking the court to authorise i.e. breaking down the door and/or removing the lock is a different act to what the tenant was required to do pursuant to the injunction i.e. open the door from the inside of the property. This has led to a series of conflicting County Court decisions in relation to whether CPR 70.2A authorises a landlord to force entry where a tenant has not complied with an access injunction.
Unfortunately, there is no clearcut answer as to what the court’s stance is on this until a prevailing decision is handed down in the High Court or higher court. This creates uncertainty for landlords in the interim and they should not assume that the Court will authorise forced entry despite several County Court precedents in favour of the Landlord. The landlords prospects of being authorised to force entry will be highly dependent on the facts of the case.
Going forward
From the moment access is requested to then obtaining the access injunction, the process may be considered tedious by landlords. Landlords will need to incur the initial costs of obtaining the access injunction however, if granted, the landlord may be entitled to recovery of its costs from the tenant.
Landlords should always seek advice if they find themselves at an impasse with the tenant when access is required. Failing to follow the correct procedure can result in the landlord being the subject of claims by the tenant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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