We now have another recent County Court Case considering the issue of forced access, which provides useful guidance to practitioners. 

As a recap, the issue of forced access remains a conflicting point at County Court level - see our previous blog post here, which summarises each case to date.  

The ongoing dispute stems from the application of CPR 70.2A. Specifically, whether this CPR permits the Court to authorise another person to perform an act that a disobedient party has failed to do. 

The most recent judgment in Stonewater Limited v Harris provides further guidance as to the interpretation of CPR 70.2A and confirms the Court does have the jurisdiction to make an order for forced access (subject to the considerations discussed below). 

A key point to note on this case - The Tenancy Agreement in question, as many do, had a term pertaining to the tenant’s obligation to provide access if asked to do so. Importantly, there was a clause within the tenancy agreement that permitted forced access in the event of an emergency (that could cause either personal injury or damage to premises/neighbouring premises). 

The Judge had to determine what the ‘act’ for the purpose of CPR70.2A was. In his view, the relevant ‘act’ for the purpose of CPR 70.2(A) was enabling the landlord to obtain access. If a landlord is unable to obtain access by way of the tenant’s consent, then in this Judgment, CPR 70.2A permits the Court to enable access in another way. The Judge saw this as a purposive approach, noting the alternative methods of enforcement, such as possession proceedings or contempt proceedings, to be both ‘unattractive and disproportionate’.  The Judge in Stonewater Limited v Harris acknowledged that both alternative methods were costly, lengthy and did not lead to the desired outcome – the landlord obtaining access to the Property in question. 

This judgment helpfully sets out that the Court does in principle have the power to make such an order permitting landlords to force entry to carry out gas and/or electrical safety checks to ensure the safety of both tenants and those living around them. 

It is important to note that, though it is possible to obtain a ‘rolled up order’ both for access and allowing for forced access, forced access is unlikely to be granted in the first instance. Although allowing for it, the issue of forced access appears to remain a last resort mechanism. Therefore, landlords will have to wait for a breach of the injunction order before seeking such provision. 

Practical considerations

This case gave some useful practical considerations for landlords if a provision for forced access is sought: 

• Landlords should assess any resident/household vulnerabilities and ensure they provide evidence/records of the same to the Court within any application for forced access
• At least 48 hours’ notice should be given before forced access takes place
• A landlord should not proceed in forcing access where the tenant is present and actively opposes entry
• Landlords should consider affixing a key safe to the outside of the premises as ‘good practice’. 

Summary

The judgment in Stonewater Limited v Harris will be welcomed by landlords and social housing practitioners who often face difficulty in obtaining access to carry out essential gas and/or electrical inspections.

It is important to remember that this decision is another County Court decision, to add to the growing list supporting forced access, however, it is not binding and the issue will remain at the Judge’s discretion.

Forced access is likely to remain a contentious issue until a binding decision is made by a higher Court.

Notably, landlords must ensure they consider all circumstances of the matter, including vulnerabilities of the tenants and/or residents, before seeking a provision for forced access. As in all housing matters, evidence and records will be key.

As the volume of case law on this issue is now building, we have prepared an updated table indicating the basic position of each case in relation to forced access for ease of reference. 

If you require any further information or assistance in relation to the issue of access, please contact us.