In landlord/tenant law, the general rule is that until the termination of the lease, the tenant has exclusive control and possession of the premises. Thus, the landlord has no right to enter the property during the term of the lease.
To deal with this rule, every well-drafted lease, with the possible exception of ground leases, should provide that the landlord has certain rights to access, inspect, repair and, possibly, show the property. Otherwise, the landlord cannot enter the premises without first getting the tenant’s consent. The relevant lease language should provide that such access may be made at reasonable times and upon reasonable notice, provided that landlord may enter at any time in the event of an emergency or a code violation. What is “reasonable” may vary with the particular tenant; for example, a physician tenant may require more time, given the tenant’s statutory concerns about maintaining patient confidentiality, then a warehouse tenant would. If the lease is negotiated, it is likely that a time-frame, for example, “24 hours advance notice”, has been determined. The Landlord should be mindful of what the Lease requirements are with respect to access. A landlord who abuses its inspection rights or ignores notice requirements could find itself to have violated what is known as the tenant’s “right to quiet enjoyment.”
There are a number of reasons why access rights are useful to a landlord. A landlord should have the right to enter in order to make the repairs it is obligated to make, both to the tenant’s premises and to services for common areas and the space of neighboring tenants. Inspections allow the Landlord to determine if the premises are well-maintained or if there are any repair obligations that are not reported. They may allow the Landlord to obtain some idea of how much repair or fit-out will be required for a tenant that is planning on vacating; and, finally, they may allow the Landlord to anticipate or evaluate tenant complaints or to evaluate a tenant’s defenses in the event of litigation.
One practical approach is to include in the notice to the tenant a specific notification that the tenant has the option to be present during the time that landlord has access to the property. The tenant’s presence or their waiver of the opportunity to be present should give the landlord an extra layer of protection against any claims that personal property was taken or damaged or that the tenant’s privacy was infringed.
What if the lease does not specify the landlord’s access rights? A landlord may still be “privileged” to enter the premises. This approach is often inadequate. For example, it leaves the landlord in the lurch in the case of an emergency. In such situations, the landlord either has to obtain consent or use his or her common sense and decide whether the cost of not remediating the problem is greater than the risk of having the tenant claim the landlord trespassed. In the case of a true emergency, like a burst water pipe, it would be likely that a court would find that the landlord’s action was excused. However, many cases are not so cut-and-dried.
In our transactional practice we often see rental properties that are for sale. It is never a bad policy to have language in the lease allowing the landlord and the landlord’s broker to have access to the property in order to show it for sale purposes. Also, for a commercial tenant at least, it is not uncommon to provide that during the last “x” months of a lease term, the landlord has the ability to show the space to prospective tenants.
If you would like a “gap analysis” done of your form lease, please do not hesitate to call.
– Rod Fluck