Legal

Most people know carbon monoxide can kill, but it still comes as a surprise to hear how often and how easily. More than 30 people every year die in their homes, while many more suffer temporary or permanent brain damage.

The usual culprit is a blocked flue or a damaged gas pipe, the sort of problem that can be avoided by checking gas appliances regularly. In practice, however, local authorities and housing associations have a hard core of tenants who won’t let the landlord in to do the checks.

The regulations

Landlords are under a legal obligation to check tenanted properties with gas appliances at least once every 12 months, according to regulation 36 of the Gas Safety (Installation and Use) Regulations 1998. There are other pressures. Increasingly landlords worry that a less-than-100% annual inspection rate will impact badly on Audit Commission housing inspections, and the Housing Corporation has an additional regulatory role in ensuring that housing associations comply.

Solutions

This is where landlords turn to lawyers. The first thing landlords learn is that to use forced entry (or skeleton keys, for example) is an act of trespass, and may be a criminal offence. Two safer options are:

Injunctions

Mandatory injunctions are usually granted in the county court. If the tenant breaches the injunction by continuing to prevent entry, the matter must go back to court, where a circuit judge may mete out the penalty of imprisonment, or give a suspended prison term or fine.

Tenants often co-operate once injunction papers are served, yet legally this is a blind alley. The judge cannot permit the landlord to force entry. If the tenant still resists, the landlord must try something else.

Possession

Taking possession proceedings against a recalcitrant tenant is the worst all-round solution. The end result is entry into the home, but in the process a household – usually a vulnerable one – is rendered homeless. Most judges realise this and order execution of possession to be suspended, in the hope that the tenant co-operates. But some tenants don’t.

Tenants often co-operate once injunction papers are served, yet legally this is a blind alley

A third way

My advice to landlords needing access for gas inspections is to approach it from a different route: statutory nuisance environmental law.

On the basis that checking gas installations is the subject of this HSE legislation, this can be used to argue that an unchecked property “is likely to be prejudicial to health” and is therefore not a potential but an existing statutory nuisance, under s.79 of the Environmental Protection Act 1990.

The EPA’s summary statutory nuisance proceedings impose a duty on a local authority that is “satisfied” of the existence of statutory nuisance to serve an abatement notice on the “person responsible for the nuisance”. Typically this gives the tenant 14 days to comply as directed in the abatement notice, which will effectively demand: “open the door and let us in”.

If 14 days elapse without response, not only has the tenant committed an offence but the local authority officer who served the notice can get a local magistrate to grant a warrant for “entry, if need be by force”. This is therefore a lawful way of gaining entry, and cost free as the entry warrant is the criminal court’s response to an offence and not an action in civil law.

The regulatory bodies are cautious about EPA 1990 forced entry but, backed by legal advice and a sound preliminary process of warning and cajoling, there is nothing wrong with it.

This doesn’t just apply to council tenants. There is no reason why housing associations should not also get forced entry to their tenants’ homes through the local authority’s EPA powers.

Landlords nervous about going straight from warning letters to forced entry may like first to try injunctions. A suspended committal order in response to a breach of injunction would be extra evidence to present to the magistrates.