Tenant wants to be back when surveyor accessing unit

yoginindublin · 19-09-2013 4:14pm #1

Hi! I have a question. We have already paid a deposit on an apartment unit that we are buying. We are very near closing (i have the mortage in the bank approved, my solicitor has reviewed the contract for sale and has a closing date on it) We had planned to have the unit surveyed this week. Early last week, my agent sent an email to the tenants about my surveyor accessing the unit and he got a reply a week later from the tenant saying that they are out on holidays and prefer to be back when we access the unit (apparently they have a lot of valuables that are out). My agent sent another email asking for when they will be back and its been a few days without any reply from them. The agent tells me that if they become difficult we can access the unit with the permission of the owner. Anyone have any opinion on this? Is this allowed? What if they don't want to move out?

djimi · 19-09-2013 4:17pm

No its not allowed. The tenant is perfectly entitled to be there when you are looking around their home, and neither you or the landlord are allowed to enter the property without prearranged permission from the tenant.

mickyellow · 19-09-2013 4:19pm

This has very little to do with the tenant. The owner simply has to notify them that he and the prospective new owners are coming around to check thing over. In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

There could be another deeper issue here with the tenant not too keen on moving out.........and thus being difficult.

listermint · 19-09-2013 4:21pm

mickyellow wrote: »

This has very little to do with the tenant. The owner simply has to notify them that he and the prospective new owners are coming around to check thing over. In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

There could be another deeper issue here with the tenant not too keen on moving out.........and thus being difficult.

You are wrong.

djimi · 19-09-2013 4:22pm

mickyellow wrote: »

This has very little to do with the tenant. The owner simply has to notify them that he and the prospective new owners are coming around to check thing over. In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

There could be another deeper issue here with the tenant not too keen on moving out.........and thus being difficult.

As a landlord you are not permitted to enter the property without the consent of the tenant. Your lease can say whatever it likes; legally you have no right to tell a tenant when you will be showing up at their door, and you have absolutely no right to enter the property unless they are there to let you in or it is an absolute emergency.

L1011 · 19-09-2013 4:26pm

mickyellow wrote: »

In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

That clause has no legal validity

drumswan · 19-09-2013 4:28pm

mickyellow wrote: »

This has very little to do with the tenant. The owner simply has to notify them that he and the prospective new owners are coming around to check thing over. In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

There could be another deeper issue here with the tenant not too keen on moving out.........and thus being difficult.

Good grief.

D3PO · 19-09-2013 4:43pm

another cowboy landlord that doesn't know the law.

Santa Cruz · 19-09-2013 4:48pm

djimi wrote: »

No its not allowed. The tenant is perfectly entitled to be there when you are looking around their home, and neither you or the landlord are allowed to enter the property without prearranged permission from the tenant.

That is incorrect. While this is not an emergency the landlord does have reason to enter and has a right to enter. Reasonable efforts have been made to get agreement from the tenants.
I would recommend that if entry is made that it is not made unaccompanied and that no one is allowed to remain there unaccompanied.

yoginindublin · 19-09-2013 4:51pm

My agent who is acting on behalf of the landlord told me that the tenants asked was a 24 hour notice on when we will need access to the unit. We are supposed to meet today, 19/09 and the agent sent them the email about today's access on the 11th of September. The agent told me that the tenants were usually very cooperative but this time they were firm in saying that they didnt want anyone there without them. What about the rights of the landlord who is selling the unit?

djimi · 19-09-2013 4:55pm

Santa Cruz wrote: »

That is incorrect. While this is not an emergency the landlord does have reason to enter and has a right to enter. Reasonable efforts have been made to get agreement from the tenants.
I would recommend that if entry is made that it is not made unaccompanied and that no one is allowed to remain there unaccompanied.

The landlord cannot just show up and enter whenever they want, just because they feel they have reason to do so. If the tenant says no then that has to be respected. The tenant is not being unreasonable; if they are out of the country then its tough luck to the landlord, who may wait until they return.

djimi · 19-09-2013 4:58pm

yoginindublin wrote: »

My agent who is acting on behalf of the landlord told me that the tenants asked was a 24 hour notice on when we will need access to the unit. We are supposed to meet today, 19/09 and the agent sent them the email about today's access on the 11th of September. The agent told me that the tenants were usually very cooperative but this time they were firm in saying that they didnt want anyone there without them. What about the rights of the landlord who is selling the unit?

When are the tenants back in the country? Can you not just wait until they are home? Its not their fault that you booked the survey without agreeing a suitable time with them, after all.

mickyellow · 19-09-2013 4:58pm

mickyellow wrote: »

This has very little to do with the tenant. The owner simply has to notify them that he and the prospective new owners are coming around to check thing over. In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

There could be another deeper issue here with the tenant not too keen on moving out.........and thus being difficult.

I simply stated above that I give the tenant 24 hours notice if I'm calling around. The tenant (and in some cases) has said no to me. I'm do this purely out of common courtesy and I'm not a landlord that rocks up without permission.

In the past i feel that common courtesy goes a long way and if the tenant isn't available of the timing isn't right we can arrange at a later date.

downwithit · 19-09-2013 5:02pm

A landlord must serve the property a notice 7 days in advance of entering, the tenant may choose to be in attendance but may not refuse the request with this correct written notice. This can be shortened to 24 hours in the case of an emergency. I do not believe a survey is considered an emergency.

L1011 · 19-09-2013 5:04pm

mickyellow wrote: »

I simply stated above that I give the tenant 24 hours notice if I'm calling around.

No, you "simply stated" you'd put an illegal clause in a contact.

D3PO · 19-09-2013 5:04pm

I cant see the rush to get the survey done anyway. You wont be able to draw down your mortgage without vacant possession so why not wait until the tenants are gone anyway.

Assuming the seller isn't an idiot they will have issued notice to quit to the tenants. Surely you can wait until the vacate the property anyway.

D3PO · 19-09-2013 5:06pm

downwithit wrote: »

A landlord must serve the property a notice 7 days in advance of entering, the tenant may choose to be in attendance but may not refuse the request with this correct written notice. This can be shortened to 24 hours in the case of an emergency. I do not believe a survey is considered an emergency.

Sorry but this is totally incorrect. There is no law to allow a LL to enter a property with 7 days notice. The amount of misinformation and nonsense that gets spread on this forum at times is incredulous.

mathepac · 19-09-2013 5:07pm

D3PO wrote: »

another cowboy landlord that doesn't know the law.

And yet another cowboy EA who doesn't either. It all boils down to what is "agreed between the parties" in a non-emergency situation; this may include lease conditions.

http://www.threshold.ie/advice/tenancy-issues/entry-without-permission/

"Entry [by the landlord / agent / others] without permission is a breach of obligations and if this happens repeatedly you [tenant] can refer a dispute against the landlord to the Private Residential Tenancies Board (PRTB)"

djimi · 19-09-2013 5:11pm

I think that this is the part of the RTA 2004 that covers it:

(c) allow, at reasonable intervals, the landlord, or any person or persons acting on the landlord's behalf, access to the dwelling (on a date and time agreed in advance with the tenant) for the purposes of inspecting the dwelling,

http://www.irishstatutebook.ie/2004/en/act/pub/0027/sec0016.html

The key part is "on a date and time agreed in advance with the tenant". It doesnt specify what they time frame is.

downwithit · 19-09-2013 5:11pm

From the attached link you will find:

"There is no legal minimum period of notice that has to be given e.g. 24 hours. It is a matter of what is agreed between both you and your landlord/agent."

This is generally established as seven days in a standard lease agreement, which you agree to on signing your lease agreement

D3PO · 19-09-2013 5:16pm

downwithit wrote: »

From the attached link you will find:

"There is no legal minimum period of notice that has to be given e.g. 24 hours. It is a matter of what is agreed between both you and your landlord/agent."

This is generally established as seven days in a standard lease agreement, which you agree to on signing your lease agreement

You cannot sign away your rights in a lease agreement. As the RTA says its on a date and time agreed by the tenant that makes any 7 day clause invalid.

The tenant in this case does not agree to the LL entering the property. Doesn't matter what the lease says the fact is the LL has no right to enter in that regard until the tenant does agree to it.

djimi · 19-09-2013 5:17pm

downwithit wrote: »

From the attached link you will find:

"There is no legal minimum period of notice that has to be given e.g. 24 hours. It is a matter of what is agreed between both you and your landlord/agent."

This is generally established as seven days in a standard lease agreement, which you agree to on signing your lease agreement

The key is what is agreed between tenant and landlord. The landlord cannot tell the tenant what time they will be there, and no amount of "minimum notice" changes that.

Santa Cruz · 19-09-2013 5:21pm

Did you not get a call from someone in the building that they smelled gas coming from the apartment or that there may be a leak?
Best check it out in case there is damage being caused by water or God forbid, a gas explosion.

yoginindublin · 19-09-2013 5:37pm

djimi wrote: »

When are the tenants back in the country? Can you not just wait until they are home? Its not their fault that you booked the survey without agreeing a suitable time with them, after all.

I actually informed the agent and the agent informed them a week ago and got no response until a day before we were supposed to do a survey the tenant says no. What if the tenant continues to make it difficult to access the unit. The agent has sent 3 emails already asking on when they can access the space and they have not been responsive.

djimi · 19-09-2013 5:51pm

Santa Cruz wrote: »

Did you not get a call from someone in the building that they smelled gas coming from the apartment or that there may be a leak?
Best check it out in case there is damage being caused by water or God forbid, a gas explosion.

And a surveyor is required to be in attendance for this because...?

The tenants arent stupid you know.

djimi · 19-09-2013 5:54pm

yoginindublin wrote: »

I actually informed the agent and the agent informed them a week ago and got no response until a day before we were supposed to do a survey the tenant says no. What if the tenant continues to make it difficult to access the unit. The agent has sent 3 emails already asking on when they can access the space and they have not been responsive.

How long have they been out of the country for? Its quite likely that they are not picking up their emails (I certainly wouldnt if I was abroad).

They have to allow access at some point, but Im assuming they are not going to out of the country indefinitely? Assuming they are not planning on being abroad for a matter of months, I dont really see how you have any choice but to await their return.

beauf · 19-09-2013 6:05pm

yoginindublin wrote: »

I actually informed the agent and the agent informed them a week ago and got no response until a day before we were supposed to do a survey the tenant says no. What if the tenant continues to make it difficult to access the unit. The agent has sent 3 emails already asking on when they can access the space and they have not been responsive.

Maybe they are away for 2 or 3 weeks.

Maybe the email didn't get through.

Do they not have a phone number?

djimi · 19-09-2013 6:12pm

Have the tenants been issued with a termination notice on the basis of the property being sold? If so, would it not be easier just to wait until they have vacated?

Victor · 19-09-2013 6:13pm

mickyellow wrote: »

In my lease agreements I have to give the tenant 24 hours notice for a visit such as this and I've never run into any problems.

Not bashing.

This is a restriction imposed on the landlord, not an entitlement given to them.

Santa Cruz wrote: »

Did you not get a call from someone in the building that they smelled gas coming from the apartment or that there may be a leak?
Best check it out in case there is damage being caused by water or God forbid, a gas explosion.

In which case you should contact the emergency services and evacuate the building and let potential purchasers know there might be gas problems.

Please do not advocate illegal entry.

Moderator

ABajaninCork · 19-09-2013 6:13pm

Can the EA not put a note through the door, inviting the tenant to call to make a mutually convenient appointment?

lilymc · 19-09-2013 6:20pm

You have to give the tenant notice before you enter, our apartment in Dublin city would be inspected when we were at work, we were given due notice and didn't mind. In this case as they have specified that they wish to be there they may have some grounds for dispute as they have specified that they only wanted it inspected with them there.

Tenant wants to be back when surveyor accessing unit

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