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The Property Ombudsman – continued, again!

Yes, this is the third blog on the TPO rule change with effect from 1 October 2016. Sorry.

Last week we advised readers about the new rule relating to property viewings. Agents were advised that the new rule, 8F stated:

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.”

However, following we suspect many enquiries from many lettings agents and no doubt upon reading many articles on these changes, the TPO revised rule 8F yesterday. Readers will note that we suspected the rule would be amended but, we did not expect it to be so soon. We should probably mention here that the TPO is not referring to this as an amendment but as a clarification. We leave readers to ponder why that is…

Rule 8F now states:

Access to a property may be required by you, or an authorised third party on behalf of the landlord (e.g. a surveyor, builder, tradesman etc) for the purpose of viewing the condition, state of repair and/or to fulfil 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.”

The TPO has suggested that the reason for the “clarification” is due to agents “incorrectly” interpreting 8F as suggesting that the explicit consent of a tenant must be obtained before agents may enter a rented property. We think the “clarification” (it is clearly an amendment!) was issued because the rule simply left agents in an impossible situation which the TPO did not foresee.

Position now
In practice, agents will continue to do what they have always been advised to do. That is, that they must write to a tenant and request access. They must also send such a request at least 24hours before access is sought and must ask the tenant to confirm if access is acceptable. Consequently, subject to the condition that tenants must be given the opportunity to refuse access, the TPO now states that “express consent SHOULD, rather than must be obtained.” Agents should therefore continue to keep evidence of their attempts to contact the tenant for access prior to entering the property.

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