Here is a question to the blog clinic from Mike, who is a tenant.
I have a question regarding tenants rights to refuse viewings during covid times.
We recently chose to move flat after our landlord wished to increase the rent. Having found a new place to live, our existing letting agents now wish to start viewings with prospective new tenants. We are due to move out in a few weeks.
In normal circumstances, this would be fine. However, since then the omicron variant of covid has come into play and case numbers are at an all-time high.
I personally feel that if such viewings are to go ahead we will be at a high risk of catching the virus. However, in England, there is not an official lockdown at this time.
What are our rights to refuse viewings during this time?
Landlords do not have an automatic right to conduct viewings with prospective tenants so the first thing to do is to look at your tenancy agreement. If there is no mention of viewings for prospective tenants, then you can refuse permission as of right. Or rather, your landlord will have no right to do viewings but will be dependent on your goodwill.
If the tenancy agreement does provide for this, then you are contractually bound to allow viewings. However, you may be justified in refusing permission in certain circumstances.
The covenant of quiet enjoyment
All tenants have as part of their tenancy terms and conditions (whether written into their tenancy agreement or not) what is known as the ‘covenant of quiet enjoyment’.
This is the right to be left to use the property in peace and without interference from the landlord.
If there is a conflict of rights
If there is a conflict of rights – ie between your rights under the covenant of quiet enjoyment and the landlord’s rights under the terms of the tenancy agreement, it is generally acknowledged by lawyers (although not by many landlords!) that the tenant’s rights take precedence.
This means that if the landlord forces the issue and uses his keys to go into the property without your permission (or worse, against your express instructions) he will be committing trespass – and you are entitled to go to court to get an injunction keeping him out and compensation.
The landlord will also be committing a criminal offence under the Protection from Eviction Act.
What the landlord would need to do if you refuse access
If the landlord, wants to enforce his right to enter the property to show round tenants in the face of your refusal to allow this, he will need to go to Court asking for an injunction ordering you to let them in (needless to say he would only be able to do this if the tenancy agreement gave him this right).
However, if your reason for refusal is that you are worried about infection due to Coronavirus I would be surprised if an order were made in your landlord’s favour. It would depend I suppose on your vulnerability to infection.
I think the Judge would also take into account the fact that you are due to move out shortly and the landlord could perfectly well wait until then. So a refusal by the Judge to grant the injunction would be very likely.
In reality, I doubt whether any landlord would go to court for an injunction in these circumstances.
Tenants are in a strong position regarding access as they have the right under the Covenant of Quiet enjoyment to keep landlords out.
Generally, my advice would be that tenants should not use this right to keep landlords out permanently.
However in this case, as you are due to vacate in a few weeks anyway, I think you are probably justified in refusing access – so long as you explain fully (in writing) what your reasons are.
A message to landlords
I would also say to landlords, that you are probably best showing prospective new tenants around anyway after the existing tenants have vacated, as you will need to carry out an inspection of the property while it is empty to check that it is still compliant with the various regulations.
It is MOST unwise to allow new tenants into a property before this has been done. As you will be liable to the new tenants for issues arising from defects in the property – eg from unauthorised electrical works which cause personal injury to the new tenants.