This post is going to be focused on the issue of gaining access to socially rented properties in Scotland for carrying out electrical installation condition reports. The focus will be primarily on the Scottish Secure Tenancy Agreement. This is my personal interpretation of the documentation and is not to be used as legal guidance, no guarantee or liability is assumed for the information given.
Forcible Entry for Gas
In Scotland it is fairly well established practice for social landlords to take access to a property on or before the annual gas safety check if access is not given. This is to fulfill a landlords statutory obligations and make the property safe if an internal gas meter is present. The percentage of properties that have not been given an annual gas safety check is reported in the annual return on the charter submitted to the Scottish housing regulator. I have made a case for electrical installation condition reports to be included in the annual returns and more can be found in my previous blog post on this topic.
The Scottish housing regulator has stated in a recent 2017 publication that landlords should ” Have a clear position on, and procedures for, forcing entry when they have not gained access to a tenant’s home to do a gas safety check”. This begs the question of whether they would also advise landlords to have a clear position on forcing entry to allow for the completion of electrical safety checks.
Scottish Secure Tenancies
The Housing (Scotland) Act 2001 sets out the provisions for a Scottish Secure Tenancy (SST). The SST sets out the rights and responsibilities of the landlord and tenant under an SST with respect to repairs and improvements to the house. The model revised Scottish secure tenancy agreement can be found on the Scottish governments website. This template gives mandatory and optional text which is to be included within the agreement.
The section we will be looking at within the agreement is section 5.12 as seen below.
The text has differing importance depending on whether its written in bold, italic or plain text. The differences can be described as follows:
- BOLD: core clause as expressed in legislation. The expression of these Core rights in the Agreement can only be a gloss on the statute which takes precedence in the event of any dispute as to interpretation. Such clauses are mandatory.
- ITALICS: The second category is those clauses which replicate, in a contractual fashion, the common law rights and obligations in respect of repairs, maintenance and use and care of the house. Such clauses are also mandatory.
- PLAIN TEXT: The third category of Clause is optional. It deals with a variety of peripheral matters that landlords may or may not wish to include. It also covers optional augmentations to the statutory and common law position.
Analysis of the Text
The first part of section 5.12 which is relevant to gaining access to the property is in bold which is “we have the right to come into your house to inspect it and its fixtures”. So the right of a landlord to inspect a property and its fixtures is a core clause, providing there has been 24 hours notice given in writing. Unfortunately this does not specify a means of access.
The next section which is in plain text is as follows “If you refuse us entry, we will have the right to make forcible entry provided we have given you every reasonable opportunity to let us in voluntarily.” As this is in plain text this is an optional clause but it might be argued that forcible entry is a valid way to allow landlords to comply with the core clause of inspecting the property and its fixtures.
The final part of this section is in italics and reads as follows “In an emergency, we have the right to make forcible entry to your house without notice.” Following this, the question would be whether the completion of an electrical installation condition report would be considered an emergency?.
So Where do we Stand
I think if there was a known C1 fault then a strong case could be made for forcible access due to it being an emergency but for condition reporting it would be more difficult to justify on this basis.
Ultimately there is not a definitive legal standpoint for forcible entry for the completion of electrical installation condition reporting. The legal commentary on the Scottish governments website states that at present, the law is unclear as to what remedies the landlord has where the tenant refuses to give access for an inspection. Although the paragraph does clarify the position contractually.
The case would be stronger to make if there was a legally binding set frequency whereby social landlords would need to meet to satisfy their statutory obligations.
The Scottish housing regulator could lead the way by including a requirement for landlords to report on the percentage of EICR’s completed and give guidance on access in the same way as they have for gas safety checks. If a landlord were to include forcible entry to their electrical safety policy and it was challenged by a tenant in court it would set the standard from then on but until that day we shall remain in this state of limbo.
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