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Ombudsman issues clarification for agents perplexed by change in Code
Original Author: Rosalind Renshaw
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 of 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 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.”
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.
