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Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
is there a term in your tenancy agreement with the tenant that provides that you may enter the property in an emergency or upon written notice please? Such terms would typically appear in standard boilerplate tenancy agreements.
Hi Joshua and thank you for your help. just read it again! In the contract there is a para which sets out the definition of an emergency " where there is risk to life or critical damage to the fabric of the property or fixtures and fittings contained in the property" but there is no context as to why this para is in there. There is no mention that the landlord cannot enter for an emergency. the mould was damaging the fabric literally!
my apologies for the short delay. With your permission, I shall be with you in a few moments...
oh no, spotted it further into the pages under tenant will. Sorry I was paying more attention to Landlord will ... the contract says "the tenant will permit the landlord at all reasonable times by prior appointment upon giving at least 24 hours written notice (except in emergency) to enter the property to carry out necessary repairs, maintenance... to allow onto the property any persons that may reasonable require access to carry out work....
so, as she refused access with at least 24 hours notice, what does this mean to me? do I have a counter claim Joshua??
this is what I received from the tenant which I considered needed my immediate emergency attention...
I am finding that the atmosphere is increasingly affecting my health to the point where I am developing allergy/cold/chest infection like symptoms which will not go away. This was highlighted to me as I stayed at my boyfriends over the weekend and was absolutely fine, only to find the symptoms returning within a short time of returning home. I am now unfortunately really concerned about my health, and have arranged a doctors appointment to see if there is any long term damage this constant low level illness may be causing.
thank you for the above. The causes you refer to are the standard form of clauses I would expect. Do I understand that you gave notice before you entered but the tenant refused you permission? if so, did you serve written notice and did the tenant contact you in writing to refuse permission or verbally?
Sorry no. Throughout the 12 mths tenancy I always asked permission for non urgent maintenance things. She sent the above email just before going on holiday and I had reassured her that I would "get on it" so while she was away I met at the flat with a condensation expert to install an auto system to keep condensation at bay and improve the air quality. I let myself in to resolve the issue ASAP. I was worried and considered it an emergency as it was her health. The contract states that she must use the manual fan which i installed but she didn't use it so she was part of the problem and in turn in breach of the contract. However, I was worried about her health and so I dedcided
not to wait for her return from holiday.
Thanks. You refer to an email she sent. Do you have the text of that email to hand by any chance?
yes it is above in my email to you times at 2.11 "i am finding....
I do beg your pardon - thank you. Just reviewing...
Thanks. You replied to her by email that you would "get on with it" or was this by phone?
on 7th Oct I sent "
Hi Hannah >Mark the decorator is able to do the antifungal painting in the week
>beginning Oct 21st. He would like to come and see the flat for final
>quote at 6.30 on Oct 15th (Tues) I know you are away so can your mum be
>there (please remind me of her name!) or would you be OK with me going
>in. Let me know. then she replied on the 7th "
My Mum's name is XXXXX XXXXX I am happy for you to let the decorator in for the quote on 15th and my Mum will check in when the works commence on 21st.
then on 13th Oct she sent
> I'm just on the train off on holiday. Just wanted to confirm you
> received my text regarding the painting. Just in case - please can you
> wait until I get back, while I'm sure the painter is perfectly
> trustworthy, I am worried about leaving someone in the flat without me
> being able to check the flat is secure while he's in" So at no time did she rescind that i could go in as per her 7th Oct email.
Thank you. Lastly on what date did you enter the property and was this with the decorator? Did the decorator then enter the flat on his own to carry out any works? If so, on what dates did he do so?
I entered the property while she was away with the decorator but no one went in after that. I secured the quote and that was it. locked up and left it till she returned.
Was this before or after her 13/10 email?
After. I understood that no works were to take place while she wasn't there but I was still operating under the understanding that i could go in for quotes from decorator and condensation to get the problem sorted. she said "no work" but she didn't say "not to go in"
Thanks - do you recall what date (even roughly) - I am sorry to press you but it is indirectly pertinent. That is my last question.
She left on 13 Oct which is a saturday so i am likely to have been there on the following Wednesday having arranged a time with the contractors. Sorry, that is about as close as I can be! does the email outlining her "long term health worries" constitute an emergency????? Thank you
thank you. The legal position with regards XXXXX XXXXX entering tenants premises is that they may not do so under common law unless there are provisions in the tenancy agreement that provide for it. In this case, there are provisions in your tenancy agreement from what you say which require you to give 24 hours notice providing you do so, you have the right to enter unless the tenant refuses permission in which case entering this regarding the tenant's refusal could constitute a criminal offence under the detection against eviction act and can give rise to civil damages - the latter is what the tenant is hoping to claim here. In terms of where this leaves you...
I can only read half your message Joshua, would you please resend the bit after "where this leaves you..." thnak you
based on the email exchanges you have kindly reproduced for me, you have clearly given the required written notice and received permission from the tenant for you to enter the property with the decorator for the purposes of obtaining a quote. This is more than sufficient for your purposes because as above, all you in fact need to do is give notice under the terms of the tenancy agreement; you do not need to obtain the tenants permission. That you have done so is above and beyond the requirements of the law. Although therefore remains as the complication of the subsequent email you received from the tenant and it is necessary to look carefully at that email in order to determine the tenants instructions.
I am reassured and my last question, sorry to press you! is health worris an emergency?. Thank you
in the first email you received from the tenant, she gave you permission to let the decorator in for the purposes of obtaining a quote I went on to say that her mother would looking on the property when works commence. in the subsequent email she ask that you wait for her to return before undertaking any painting because of concerns about leaving the decorator unattended in her flat. the important point to emphasise is that she does not retract permission for you to enter with the decorator for the purposes of attaining a quote. Her second email specifically addresses painting.
accordingly, based on the evidence of this email exchange, I cannot see she has a complaint under the protection against eviction act or under breach of contract. You will wish to consider a defence in my view to her claim producing copies of the email exchanges and preparing a statement succinctly analysing the exchange of emails as I have done above leading to your central plank of defence namely being that she provided consent for you to enter the property to obtain a quote and did not withdraw that consent but limited her second email to dealing with painting. accordingly, you would argue that you fully complied with the terms of the tenancy agreement, the protection against eviction act and common law and respected her request not to start works until she returned as per her request. accordingly, your position will presumably be to deny any liability to her
THANK you so much Joshua! I am very grateful and your careful questioning has helped me to get a clearer timeline for my response. Just the final thing... if the law doesn't say that a report of a long term health problem is not an emergency... then i can say i was acting within the terms of the contract ? is that OK? Please let me know and then I shall leave you in peace! with huge thanks
A pleasure. Thank you for bearing with the questions. the interpretation of an emergency in law this the same as that of common understanding namely a situation which due to its nature demands immediate attention in order to preserve life or property - obvious examples being risk of fire flooding etc. I cannot see that the situation would constitute an emergency but equally I cannot see that this matters because you are arguing your right to enter under the 24-hour to exist notice provision in the tenancy agreement which does not require an emergency to exist. I would not personally referred to an emergency because I cannot see it is relevant and in addition is immaterial due to the above
Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?
do remember that if you choose to attend the hearing - though you can if you wish to submit written statements and evidence and advise the court that you are unable to attend and asked them to deal with the claim on the basis of your written submissions - you can claim costs for loss of income up to a maximum of £90.
Dear XXXXX thank you for that last very useful piece of information. I'll write this up disputing the whole sum and add a timeline of info as defence. You have been fabulous and I will select "excellent service" from the rating. With thanks and warmest regards, Wendy
yes I rated you excellent! still waiting for small claims court to let me know what happens next... February to August... a s-l-o-w- process. i won't hesitate to contact you if i need more. best wishes