The question of whether, or not, a Court can make a clause permitting forced (albeit peaceable forced using a locksmith) access to a property for a Landlord to carry out safety checks has come before the Court again in the case of Southern Housing v James Emmanuel. This provides an opposing position to that in Sovereign Housing Association Limited v Hall [2024].
We are unlikely to obtain a final answer until a case on this point is escalated to the Court of Appeal; so what does it mean in practice.
Access under a tenancy agreement is set to potentially become an ever increasing area of conflict especially with the new stringent requirements on Social Landlords under Awaabs to access properties promptly to inspect and carry out repairs.
Both cases start from the common point of forced access not being part of the original injunction order. Following the grant of those injunctions attempts at accessing the properties were refused, and Applications were made to remedy the mischief through imposing a term that would do so.
Court Findings: Southern Housing v Emmanuel and the Limits of Forced Access
In considering a request for forced access, the Courts are in a difficult position as they have to balance the rights of the occupier who was granted exclusive possession under the tenancy agreement and the Landlord’s want to carry out its safety checks on the property, which failing to do so could have catastrophic effects. For both private and social landlords there is a requirement to comply with gas servicing through the Gas Service (Use and Installation) Regulations, and Electrical Safety Standards (EICR checks). Neither provide for forced entry to a property to permit the Landlord to carry out the safety checks.
Landlords also have to be careful as forcing entry without permission, and changing the locks, could amount to an unlawful eviction of that tenant. If it is considered a violent entry this is contrary to criminal law under the Criminal Law Act 1977.
In the recent judgment of Southern Housing v James Emmanuel consideration was given to 3 provisions of the Civil Procedure Rules regarding whether a forced access provision could be made following non-access under an access injunction.
After extensive consideration the conclusion of the Judge was that it could not be made, in any circumstance, including upon seeking ‘enforcement’ of the injunction order. This leaves the only routes to enforcement of either being proceedings for committal to prison or the issue of possession proceedings.
The ability of a Court to make an order for forced access is not an issue that the forthcoming Renters Rights Act 2025 addresses either.
Are there any steps that could assist in obtaining a forced entry provision to an injunction order?
On first consideration the insertion of a clause permitting access to the property would seem a logical way to take this forward. However, such a clause, if it did not recognise the need to still seek a Court Order will be unenforceable under the Consumer Rights Act 2015. This would then revert to the current position of what power does the Court have to make such a term and the answer is nothing in statute.
Outside of considering tenancy terms the consideration is how best to deal with a matter of no access. Injunctions are a necessary first step and it would not be proportionate or reasonable to advance immediately to possession proceedings. Committal proceedings are of no use as sending the perpetrator to prison would require the personal service of the injunction order in the first place and if they were to end up in prison (not a reasonable remedy) they would not be able to remedy the breach unless they had a kind friend to allow the Landlord access whilst they remained incarcerated.
The question arises as to how best to ensure clarity of what will happen should access not be permitted and there is merit in considering, particularly for cases where this is not the 1st time it has escalated through your access procedure, to serving a Notice Seeking Possession along with a solicitors final warning letter.