Can a Landlord Hold a Set of Keys?

We wrote this article in response to various rumours on forums suggesting it was illegal for a landlord to hold a set of keys to a rented property.

One forum post said:

“I just think too many landlords are lethargic about understanding the law and their obligations. Did you know for instance, that it is illegal for the Landlord to hold a set of keys to the property? You can hold a set of keys if you get the tenant to sign an agreement to that effect and attach it to the tenancy agreement. That is the only legal way to hold keys.”

In addition, further rumours have been written:

1. There is no automatic right for a landlord to hold keys,
2. To be safe, they should obtain the permission of the tenant, but the tenant could rescind this permission anytime, and
3. A tenant has a TOTAL RIGHT to change a lock

The landlord's holding keys

It's not disputed that the tenant's right to quiet enjoyment overrules the landlord's right of entry:

Exclusive possession is the ability on the part of a tenant to exclude all persons, including the landlord, from possession. [Street v. Mountford [1985] 2 W.L.R. 877]

However, the holding of keys by a landlord is not a breach of the tenant's right to quiet enjoyment. 

The question to ask is why those keys are being held. 

Assuming those keys are being held solely to carry out the landlord's responsibilities such as repairs, gas safety records etc., then the landlord may have those keys [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]:

…Provisions as to keys, if not a pretence, which they often are, do not have any magic in themselves. It is not a requirement of a tenancy that the occupier shall have exclusive possession of the keys to the property. What matters is what underlies the provisions as to keys. Why does the owner want a key, want to prevent keys being issued to the friends of the occupier or want to prevent the lock being changed? A landlord may well need a key in order that he may be able to enter quickly in the event of emergency - fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read meters or to do repairs which are his responsibility. …" [Lord Donaldson of Lymington Mr at Paras 14 & 15].

However, if the keys are being held to enter twice a day to annoy the tenant, then still, the holding of keys is not a breach of quiet enjoyment; it is the entering twice a day that is (I assume case law is not needed for that assertion!)

There is no automatic right for a landlord to hold keys

It is respectfully submitted this is incorrect. 

We live in a free country, meaning an individual may do anything they like unless there is some Act of Parliament, Regulations, orders, case law (common-law) or finally, contractual term prohibiting or requiring an individual to do or not to do something. 

It is an implied covenant of every tenancy granted for a term of fewer than seven years that "…the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours notice in writing to the occupier, enter the premises comprised in the lease to view their condition and state of repair." [s.11(6) Landlord and Tenant Act 1985]. 

You will note, however, that s.11(6) only allows a landlord to enter "to view their condition and state of repair", and it is not a covenant allowing the landlord actually to carry out repairs. 

This is where assured shorthold tenancies have an advantage for landlords, and to make our life easier, section 16 Housing Act 1988 provides (emphasis added):-

It shall be an implied term of every assured tenancy that the tenant shall afford to the landlord access to the dwelling-house let on the tenancy and all reasonable facilities for executing therein any repairs which the landlord is entitled to execute.

As it is an implied term that the tenant shall "afford" access to the landlord, it is, in turn, an implied (or automatic) right that a landlord may hold keys. (You will also note there is no requirement for prior notice to be given when carrying out the repairs, compared with s.11(6), although that doesn't provide an automatic right of entry)

Section 16 doesn't apply to Wales, but it will be acceptable to include a similar term in the written statement of the occupation contract.

The tenant could rescind this permission anytime.

As a landlord has an implied (or automatic) right to hold keys, as discussed above, could the tenant rescind this right at any time? 

It is respectfully submitted this is not correct. 

There is no case law to support either way, but I think section 11(6) L&TA1985 and section 16 of the Housing Act 1988 are sufficient. 

Parliament could have placed at the end of section 16 that a tenant could opt out of the requirement to afford access upon giving notice, for example. 

However, Parliament has chosen not to and has made the term in every assured shorthold tenancy an absolute right for a landlord with no preconditions attached. In practical terms, how would this work anyway? Presumably, the tenant would need to write to the landlord seeking that the landlord destroys his set of keys. Then what? As with any purported "right", the tenant would presumably need to get a court order enforcing his purported right. There is, unfortunately, no case law.

A tenant has a TOTAL RIGHT to change a lock.

Again, I can't entirely agree, although I will admit this gives landlord's more of a problem than if a tenant attempted to seek an order for a landlord to destroy his keys. Firstly though, there is NO "right" for a tenant to change the locks [Bishop v Elliott [1855] 11 Ex. 113]

With respect to locks and keys, bolts, and bars, there can be no question, whether properly called fixtures or not, that the tenant cannot remove them; they are as much part of the house, and to go with it, as the doors or windows to which they may be attached or belong … (Coleridge, J)

In addition, a term of the tenancy is perfectly acceptable in prohibiting both landlord and tenant from changing the locks as long as the purpose of the provision is to allow the landlord entry in the event of an emergency [Aslan v Murphy (No 1 and 2) [1989] EWCA Civ 2]. 

If, however, the tenant has changed locks, the problem that arises is, what is the loss suffered by the landlord as a result of the breach of the tenancy? 

This, I do accept, makes enforcing the term problematic. For assured shorthold tenancies, the procedure could include a section 8 notice on Ground 12 (breach of the term of the tenancy other than rent). But, Ground 12 is discretionary, so although proving the breach of the term will be relatively easy, the court may make an order for possession only if it considers it reasonable [s.7(4) Housing Act 1988]. 

Therefore the question becomes, does the breach warrant possession? Probably not in my view, although I would submit it is close and depends on the individual circumstances of the case. 

A likely outcome is that the order for possession may be suspended if the tenant provides the landlord with a set of keys, for example, after which the order would cease. 

The alternative would be to bring an action to recover damages for the breach or act to compel specific performance of the contract. 

To summarise, therefore, there is NO right to change the locks, but once the locks have been changed by the tenant, enforcing the breach will be difficult without proving some fairly significant loss to the landlord.

H.M.O.'s

H.M.O.s are different, and I would submit it makes it an actual offence for a tenant to change the locks (as opposed to above, which is a breach of contract), although it would depend on the individual circumstances. 

Article 14(2)(f) Regulatory Reform (Fire Safety) Order 2005 provides:-

emergency doors must not be so locked or fastened that they cannot be easily and immediately opened by any person who may require to use them in an emergency;

The order only applies to common parts of buildings (and parts of dwellings which lead onto common parts), so for this example, let's say we have a block of three flats with a shared hallway. The landlord has put a keyless exit lock on the main entrance to the flat, which leads to the means of escape (common hallway). The tenant now changes the lock to a typical key-operated mortice type. Article 32(10) provides (emphasis added):-

Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

It is, therefore, respectfully submitted that it is perfectly possible, depending on the circumstances, that a tenant may be guilty of breaching the fire safety order. In addition to Article 32, providing "any person" may be guilty of an offence, Article 17 states that there must be a system of maintenance and that anything required under the order is "in efficient working order and good repair." 

Article 17(4) also requires "The occupier of the other premises must cooperate with the responsible person…" in this respect. If there is a tenancy term prohibiting changing the locks, it is respectfully submitted that changing them is not "cooperating with the responsible person". 

Article 5(3) provides that a tenant is a "person in control of premises" and, therefore, can be convicted under the order so far as the extent is covered under the tenancy terms.

Finally, the Management of Houses in Multiple Occupation (England) Regulations 2006 apply (Similar provisions for Wales). In which case, it is the duty of every occupier to:-

allow the manager, for any purpose connected with the carrying out of any duty imposed on him by these Regulations, at all reasonable times to enter any living accommodation or other place occupied by that person; [r.10(b)]

A failure by the tenant to allow entry is a criminal offence, and the occupier would be subject to a possible fine [s.234Housing Act 2004].

Other miscellaneous

Breach of the term not to change locks

I don't propose to go into the whole law of valuing damages, but as a general consideration, the following applies:-

Damages for breach of contract are calculated on the basis that the injured party should be put in the position in which he would have been if the contract had been performed. Accordingly, where the landlord suffers a loss which he would have suffered even if the contract had been performed, he cannot recover damages in respect of it. [C & P Haulage v Middleton [1983] 1 W.L.R. 1461]. In addition, damages must not be too remote. The rules of remoteness may be summarised by stating that damages are recoverable if (1) they may be fairly and reasonably considered as arising naturally, i.e. according to the usual course of things, as a result of the breach or (2) they may reasonably be supposed to have been in the contemplation of the parties when they made the contract as the probable result of a breach. [Hadley v Baxendale (1854) 9 Exch. 341] (So for example the tenancy may say what damages are payable if the tenant changes the locks i.e. to pay for replacement locks). [para 4.090 Woodfall Landlord and Tenant]

This, therefore, goes back to the problem discussed above. Although it may be a breach of the tenancy to change the locks, the question arises what loss does the landlord suffer? If there is no loss, then it's challenging to seek damages. However, that does not mean there was no breach of the tenancy. For an excellent example of this principle of a loss must be suffered in a surveyor negligence case, see Community Gateway Association Ltd v Beha Williams Norman Ltd [2011] EWHC 2311 (T.C.C.):-

The defendant should have been aware that the £16 million of further works had been promised and should have brought this to the attention of the claimant. In particular, the defendant should have checked the contents of the surveyor's report against other records and, had they done so, it would have been clear that the report did not represent a complete list of works. This breach of duty had not, however, led to any loss for the claimant. The additional works which had been promised were not works which any individual tenant was entitled to insist upon but were more like a wish-list of works, an interpretation borne out by the fact that none of the tenants had complained that these works had not been carried out. [summary commentary, housing view 26 September 2011]

The OFT guidance on unfair terms allows the landlord to charge tenants for replacement locks or keys:-

We would also object to a term requiring payment of damages, to an amount equal to the full former rent, for the period that all the keys are not returned at the end of the tenancy. The costs of replacing the locks, where required, or obtaining replacement keys may be considerably less than the penalty charge demanded. [para 3.52]

Repairs

A tenant may disentitle himself from claiming damages for disrepair if he refuses to permit the landlord to carry out repairs, for example, by refusing to admit his builder [Granada Theatres v. Freehold Investment (Leytonstone) [1959] Ch. 592, C.A.; Shine v. English Churches Housing Group [2004] H.L.R. 42, C.A.]

In my judgment, accordingly, the defendants gave the plaintiffs sufficiently clear notice of their intention to do the work and sufficient information as to the nature of that work. What then in those circumstances is the result of their being prevented from doing it and of the plaintiffs repairing the slate roof themselves? On the assumption already referred to (viz. that the work which the defendants intended to do would have been a sufficient compliance with their covenant), the result in my judgment is that on this part of the case the plaintiffs could not succeed. In asking for an order on the defendants to repay them for the work which they themselves did, they are asking in substance for damages for breach by the defendants of their repairing covenant. If, however, the plaintiffs prevented the defendants from performing that covenant and then put it out of the defendants' power to perform it by doing the work themselves, I cannot see how it can be said that the defendants were then or thereafter in breach at all… (Lord Justice Romer - The Granada Theatres).

Suppose a tenant fails to report defects to his landlord, even in a case where the landlord's liability is not dependent on notice of a deficiency. In that case, the tenant's damages may be reduced because he failed to mitigate his loss [Minchburn v. Peck (1988) 20 H.L.R. 392, CA.]. 

It is respectfully submitted the same principle applies should there be an emergency, such as a burst pipe, for which the landlord may be entitled to enter without notice but couldn't because of the tenant's breach of changing locks. It is certainly possible that any damage caused over and above the initial leak (for example) that was directly caused by the delay in gaining access which otherwise would have been prevented, the tenant may well owe the landlord such losses.

Repairs are not harassment.

Harassment is a criminal offence under section 1(3) Protection from Eviction Act 1977.

 However, the offence does not extend to a failure to complete building works which had been innocently begun, in the belief that the tenant had consented to them [R. v Ahmad (1986) 52 P. & C.R. 346] nor to acts intended to cause a residential occupier to vacate premises temporarily to enable work to be done and resume occupation after that [Schon v Camden London Borough (1987) 53 P. & C.R. 361]. [para 20.028 Woodfall Landlord and Tenant].

Getting into the property

Until the keys have been returned, a landlord should not assume the tenancy has ended without an order from the court and then the county court bailiff. Only then is the tenancy at an end [s.5(1A) Housing Act 1988]. 

When deciding whether a tenancy is at an end, the question is not whether the tenant is in occupation but whether the tenant intends to return within a reasonable period (known as animus revertendi) [Wigley v Leigh [1950] 2 K.B. 305; Beck v Scholz [1953] 1 Q.B. 570; Dixon v Tommis [1952] 1 All E.R. 725; Hallwood Estates v Flack (1950) 66 T.L.R. (Pt. 2) 368; Shooter v Gaitley (1936) 80 S.J. 74; Herbert v Byrne [1964] 1 W.L.R. 519; Brickfield Properties v Hughes (1988) 20 H.L.R. 108.] 

An intention to return within ten years has been held a reasonable period! [Gofor Investments Ltd v Roberts (1975) 29 P. & C.R. 366] and mere absence in prison does not destroy a statutory tenancy [Maxted v McAll [1952] E.G.D. 171. Brown v Brash, [1948] 2 K.B. 247.] 

However, assuming there is a certainty that the tenancy of a house is terminated and the tenant has gone away, leaving the house locked, the landlord is entitled to break into the house to regain possession. [Hillary v Gay (1833) 6 Car. & P. 284] 

The fact that the tenant leaves furniture on the premises does not make the break-in unlawful [Turner v Meymott (1823) 1 Bing. 158].