Further to our post of last week, we would like to thank the Philip James Partnership Ltd, for contacting the Ombudsman and seeking clarification on paragraph 8F of the 2016 TPO Code of Practice and then sharing the response with us.
Paragraph 8F states:
“TPO require agents to obtain “expressed consent” for access to the property notwithstanding any notice served as contractually required. Therefore agents will need evidence of such tenant permission before entering the property rather than relying on the common tenancy clause of entering with required notice.”
The main concern with this rule is that where properties have been abandoned by tenants or the tenant is being unreasonable, agents may not be in a position to obtain “express consent” in order to access the property. This of course makes the agent’s job impossible.
The Ombudsman’s response to concerns about paragraph 8F is:
“Paragraph 8f of the 2016 TPO Code of Practice stipulates that a tenant must be given notice of a visit to the property (see exception for a genuine emergency).
The Code stipulates that notwithstanding the provision of notice, express consent should be obtained, that is, best practice dictates that an agent agrees a visit with a tenant beforehand, but it is recognised that this may not be possible in all cases. TPO recognise that an agent will access a property e.g. to conduct an inspection/GSC etc., but we expect that notice of the date/time of the appointment has been provided, and the tenant asked if that is convenient, with an explanation that if you hear nothing from the tenant, the visit will proceed – reasonable efforts must be made to obtain consent, for example email/phone call.”
Comment
This response will provide some welcome relief as it demonstrates that where a tenant is being unreasonable in the face of a necessary visit the TPO will allow an agent to use assumed consent to force a visit. However, this is also a bit odd as this is what the original rule stated. So while the new rule does not read in the way it is now being painted by the TPO, our original advice remains good advice until such time as Paragraph 8F is amended.
