The Property Ombudsman has moved to clarify a change in its Lettings Code about agents obtaining express consent from a tenant before accessing a property.
The amended paragraph in the Code states: “Access to a property may be required by you, or an authorized third party on behalf of the landlord (eg a surveyor, builder, tradesman etc) for the purpose of viewing the condition, state or repair and/or to fulfill related statutory obligations and/or to carry out repairs. If you hold the key but are not able to accompany that person, the tenant must be given the appropriate minimum notice of 24 hours or that prescribed by law, of the appointment (unless agreed otherwise with the tenant beforehand), except in cases of genuine emergency. Notwithstanding providing the tenant with reasonable notice to access a property, express consent from the tenant to do so should be obtained.”
TPO says that this means in practice that an agent must provide written confirmation of their request to access the property to the tenant.
Within that written request, the tenant must be asked for their confirmation as to whether or not access is acceptable.
The request must be issued in good time for the tenant to respond, at least 24 hours.
TPO’s clarification continues: “In reality it is often the case that a tenant will not respond to an access request and in those circumstances, provided the tenant has been provided with the opportunity to response, the agent is entitled to make the assumption that access is permitted.
“However, the tenant must be given the opportunity to refuse access, if they so wish. It therefore follows that express consent should, rather than must, be obtained.”
TPO adds: “The change was made to the TPO Code following a number of cases whereby agents were giving tenants the minimum 24 hours notice, often sent by text, before entering the property (sometimes to the surprise of the tenant).
“While legal, this was clearly not good practice and not the manner in which we would expect agents, who had voluntarily chosen to follow the TPO Code, to behave.”
The clarification note was sent last night to those agents who have queried the changed Code, and will be sent out later this week to all other subscribed agents.
After trying to re-read this articles explanation I came to the conclusion that TPO are still saying that their code over rides legal process …. err no way!
24 hour notice is the legal requirement. End of. To say should, means must, suddenly goes back to must is should!
The pickle they seem to have got themselves into is the written notice of going to enter the property with advanced 24 hours notice. Written notice is now accepted as email or Text. Reading between the lines it looks more like TPO is concerned over sometimes to the surprise of the tenant. May be valid, but TPO cannot overrule the letter of law if the landlord or agent has given correct notice. This express consent is unlawful requirement by TPO. It would certainly assist a landlord if obtained, but as we all know many a tenant isn’t going to co-operate, particularly if criminal or immigration activity is taking place. TPO would be wise to recognise their error and ditch the subject.
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Hi Woodentop
I think common sense, which is sadly lacking nowadays when it comes to those making up the ‘rules’ for others to follow, has prevailed re this one.
In my post last week when the subject was first broached I wrote –
“Note the use of the word ‘should’ and not ‘must’ as used earlier in the paragraph. To me ‘must ‘ implies compulsion whereas ‘should’ implies best practice but not essential. I wish our already constantly changing waters were not continually being muddied by such added complications that really could be avoided by proper consultation with those of us who have to operate within there remit”
Seems like someone in authority agrees with me for once.
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If one was to look at the hoops legislators have to go through before a bill even gets to parliament, one would see “Wording ” is critical. If not precise, open to interpretation leads to anarchy! In this case confusion.
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Hot of the TPO press:
In reality, it is often the case that a tenant will not respond to an access request and, in those circumstances, provided the tenant has been provided with the opportunity to respond, the agent is entitled to make the assumption that access is permitted. However, the tenant must be given the opportunity to refuse access, if they so wish. It therefore follows that express consent should, rather than must be obtained. !!!!!!!!!!
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Quote TPO: So what does this mean in practice? Put simply, an agent must provide written confirmation of their request to access the property to the tenant. Within that written request, the tenant must be asked for their confirmation of whether or not access is acceptable. The request must be issued in good time to allow the tenant a reasonable period of time to respond – the minimum period being 24 hours.
So you send a letter within 24 hours as per law, no reply, in you go, but you haven’t given the tenant: allow the tenant a reasonable period of time to respond – the minimum period being 24 hours. (not law). Is it me or can’t someone tell the time!
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Not sure I follow, here. Surely a tenant always has to have 24hrs’ notice of a visit/viewing, meaning the letter advising them has to be with them – like, through their door – at least 24hrs before the visit/viewing is conducted?
And the 24hrs is a legal requirement.
Pretty sure the written confirmation can be an email, too, although we tend to send letters also.
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You are like everyone else until one takes it apart to bare bones. Yes 24 hours is minimum requirement to gain access (not in an emergency, help yourself and walk in!!). What TPO is now saying is, YOU have to wait 24 hours after YOU served your notice, to allow the tenant to respond to you notification. The law allows you 24 hours to go in. TPO says you have to wait minimum 48 hours before going in if they don’t respond immediately to you.
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I was only asking for clarification as I had read the article and the comments, and wanted to be sure. Like I said, I didn’t follow what you were saying about time, so was asking. You writing it out in the reply above is the plainest the explanation has been, and that makes sense now.
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TPO adds: “The change was made to the TPO Code following a number of cases whereby agents were giving tenants the minimum 24 hours notice, often sent by text, before entering the property (sometimes to the surprise of the tenant).
TPO need to move with the times. Surely a text is better for the majority of tenants who are far more likely to see a text than an email or letter within 24 or even 48 hours? I am currently a tenant as well as a managing agent and in my case, I don’t check my mailbox or personal emails every day but I am (regrettably) always attached to my mobile, as is the case with a lot of tenants nowadays I’m sure. I would be very annoyed if an agent was required to write to me to request access and then just turning up if I didn’t respond as I had not opened the letter yet. Text me and then I can text you right back if it’s not convenient which is better for tenant, agent and landlord.
It is the tenants responsibility to ensure their contact details are up to date with a managing agent. TPO should acknowledge that written notice in today’s world means email, letter or text.
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Cant say I totally agree with you SarahP29 – as a Managing Agent I am sure you give your tenants much more than 24 hours or even 48 hours notice of standard visits. Our forward diary and maintenance systems sends the letter out four weeks in advance and we follow this up with an email (which also comes up on any mobile so is as good as a text). I really can’t see why one would need to give the tenant virtually no notice. If you need to gain access in an emergency no matter what TPO says you still have right, under Common Law, to gain entry acting in your capacity as ‘Agent of Necessity’. I agree in this day and age electronically may be more convenient but I am not sure at court of law would accept a text as a legitimate method of delivery.
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Easternagent what about access for viewings, when you are acting in the interests of a Landlord to rent the property? Would you give the tenant more than 48 hours notice if someone wanted to view the property straight away? If so, my belief is that you are not acting in the best interests of the Landlord and another agent will arrange this appointment within 24 hours and will rent it ahead of you. I see what you are saying relating to emails on phones, but having had my personal email for so many years, I get so much spam that I don’t check it as regularly, I certainly do not have my notifications on like I do an SMS which you can pretty much guarantee that everyone will be notified as soon as you hit send?
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Just to be clear also, I was not advocating giving the tenant virtually no notice. I was advocating the use of text messages as a valid and convenient method to notify a tenant that access is required (particularly for viewings). I guess the point is, the code is too restrictive for tenants. Like I said, I am a tenant myself and I do not want my landlord or agent to notify me in this way, I actively welcome access notifications by SMS and in my experience, most tenants find this a very convenient way of communicating easily regarding access.
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A very valid point , I guess that you would need to have the existing tenants overall agreement, by putting them on notice, that you may being showing prospective tenants around at short notice. No doubt a note/email/text to them at the time that they give notice to this effect should suffice. Like everything else provided you have the evidence suitably recorded then I would have thought TPO could not argue in favour of a tenant.
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For the record email and text has been accepted for some time now by the courts as notice served.
What this story is highlighting is that agents who have the need to enter after 24 hours have to wait another 24 hours for the tenants to agree before anyone goes in. This is at odds with legislation.
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In this case the requirement is to give notice in writing. It is legally accepted that ‘in writing’ includes emails and even texts.
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What a waste of everybody’s time.
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