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Keys – rights and responsibilities

Tim Williamson
Tim Williamson

I still find it shocking to walk into estate or letting agent back offices and see a wall of keys hanging on hooks. To me such cavalier practices reflect a common attitude towards key security.  After all, they are only keys and more can be cut – surely.

I have found this attitude prevalent in leases, tenants, and adjudicators.  And by default, landlords in not making sure their interests and property are fully protected.

Keys play a vital role in Lettings. 

A tenancy starts when keys are given to tenants.  The tenant’s wellbeing and security rely on them, and when access is needed during or after a tenancy, their role is vital.  A tenancy ends when keys are lawfully returned.

Rights and responsibilities

Rights and responsibilities over keys should be clearly set out in the lease agreement between tenant and landlord.  They start with who has access to the tenant’s home, how access is gained and when.

The tenancy contract provides the right to the tenant to live securely, privately and in peace.  These rights are defined within the various Housing (Scotland) Acts that underpin the short-assured tenancy (pre-December 2017) and private residential tenancy (post December 2017).

The contracts provide landlord access to the let property under certain circumstances following either 24 or 48 hours written notice.  Access can be arranged with a tenant for repairs, maintenance, and safety inspection.

The lease will have a clause allowing emergency access for events such as a gas leak, fire, or flooding.

Tenants do have the right (in normal circumstances) to refuse access to the property.  This can be a verbal statement or express written refusal and over-rides any clause within the lease.

Many leases will have a ‘key-clause’ within them where the tenant acknowledges the letting agent or landlord hold keys to the property.  Part of the clause will give permission to access the property when the tenant is not there. 

This latter permission should be approached carefully if it is to be used, for example to inspect the property while a tenant is at work. 

In 2019 a Tribunal action for compensation[1] between tenants and Fineholm Lettings centred around property access.  The Tribunal awarded £1200 compensation as the letting agents did not correctly notify the tenants before making access to the home. 

In comparison, an action between the Ayrshire letting agent, Murphy Scoular, and their tenants over access[2] was found for the agents.   In this case the lease contained an access clause which allowed a gas engineer to enter the property on 24 hours written notice while the tenants were out.

In both cases the tenants were sufficiently distressed by the experience they complained to the Tribunal.  Use such clauses with caution, especially as tenants could claim theft or other acts against them.

In the Murphy Scoular case, the tenant gave written notice refusing further entry to the let property without their express agreement, following the gas engineer visit. 

The free downloadable, Scottish Government Model Private Residential Tenancy agreement does not include an access agreement if the tenants are not present. 

There is reference in Clause 20 to access for repairs, inspections and valuations on 48 hours’ notice and includes the line, “The Landlord has no right to use retained keys to enter the Let Property without the Tenant’s permission, except in an emergency.”

Where a tenant is not cooperating to allow access for safety work such as the annual gas safety certificate, the landlord or agent must get permission from the First-tier Tribunal for Scotland (Housing and Property Chamber).[3] 

KEY HOLDERS

Having a record of who holds keys is important.

We require landlords to provide two sets of keys for the tenancy, one set we hold and the other the landlord holds. Original keys should be with the owners and/or letting agent.  This means they are available for duplicate keys to be cut and finished quality is superior to being cut from a copy key.  Anyone with a secure entry in a multi-flat development will understand how quickly the cut quality deteriorates when original keys are not used to copy.

We have a formal Key-Lets Key Policy written down.  This is to ensure the keys we hold are catalogued, code tagged, and secured in the office safe.  Whenever anyone needs to take keys off premises they are signed out and in on their return. 

When tenants move-in they sign a key receipt that listed the keys and includes a photo to confirm what has been issued.  This document makes the tenant responsible for those keys.

We also have a lease clause acknowledging keys are held by the landlord and agent.  This confirms to the tenant there are retained keys available for access. This clause includes the right of access on prior notice and the tenants write to refuse access on a written instruction. The clause also highlights access can be enforced by the Housing Tribunal.

Providing this information in the lease overcomes any objection should the tenant dispute access in future to the Tribunal.

Another clause we have added tackles the issue of replacement keys and locks.  This came about following a heated discussion with an adjudicator at a tenancy deposit scheme training session.  The dispute was what liability a tenant had when not returning key at the end of a tenancy.  The Adjudicator insisted a landlord could only claim back the cost of replacement keys as there were what the tenant had been issued with.  We felt this unfair to the landlord and subsequent tenants if the property locks were not replaced.

The solution was to create a legal obligation on the tenant to replace the locks and associated keys when keys are lost or stolen.  The clause we use is:

(s) REPLACEMENT OF KEYS AND LOCKS

The Tenant cannot replace locks in the property without the express written permission of the landlord.  Where permission is granted the tenant will supply an original key, plus one copy key to the landlord or letting agent. 

In the event the Tenant loses keys for the Let Property or fails to return the keys issued to the tenant at the end of the Agreement, the Tenant will be required to meet the reasonable costs changing locks and four keys per lock. For the avoidance of doubt, there is no right of return to a tenant where a tenancy has lawfully concluded, and keys have been returned.

This addition covers the situation where a tenant replaces locks during a tenancy, and when a tenant fails to return keys at the tenancy end.  The key receipt discussed earlier confirms the keys returned are same.  We also added in the line regarding no right of return.  Tenants can insist on returning to a property to sort out deposit claim issues themselves.  This line defines that right does not exist.

This keys clause has been successful in deposit claims on the couple of occasions we have had to cite it. 

Our additional termination clause emphasises the role keys play in ending a tenancy.  The first covers situations where tenants leave and then return keys after an exit date.  The second part covers returning keys and the requirement to return to our office to be signed off or posted using the Royal Mail Special Delivery service.  This service has insurance to claim against should keys get lost in transit, it is also the only postage option where a signature is absolutely required.  I have added the wording we use below:

(f) TERMINATION

The Tenant accepts the retention of keys is construed as a continuation of the tenancy and will render the Tenant liable for payment of additional rent and any other costs incurred by the Landlord and/or Agent…

…The Tenant further agrees that all keys shall be returned by hand or Royal Mail Special Delivery to the office of Key-Lets on the date of the termination of the tenancy. Furthermore, the Tenant acknowledges the return of keys before an exit date does not conclude a tenancy.  Earlier termination requires the express agreement of the Landlord to waive or reduce a notice period, as stated in Clause 24 of this lease.

Hopefully this article shows the importance of managing how keys are recorded and the responsibilities attached to them in a tenancy. 

A proper key receipt is so important in attributing responsibility to the tenant as is having a lease created to protect the landlord’s interests. 

In my blog ‘How Do I Get a Free PRT Lease?’ I attempt to highlight the weakness of the Scottish Government’s Model PRT lease with additional clauses such as those in this article.  

If you want more information on Key-Lets services or any other aspect of letting please give me a call on 01292 289289 or reach out to [email protected].  I and the team will be happy to help.

PLEASE NOTE: The advice given above should not be construed as a definitive answer and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal or professional standing. Key-Lets registration is LARN1903012.

[1] https://www.housingandpropertychamber.scot/sites/default/files/letting_agent_decisions/Written%20Decision%20Failure%20to%20Comply%20%28LAEO%29%20-%2022.10.19%20-%20LA.19.1601.pdf

[2] https://www.housingandpropertychamber.scot/sites/default/files/letting_agent_decisions/Written%20Decision%20%28Failure%20to%20Comply%29%20%28LAEO%29_6.pdf

[3] https://www.housingandpropertychamber.scot/apply-tribunal/right-entry/right-entry-application-and-guidance

 

Call Tim on 01292 289289 or Email: [email protected]

We have a number of helpful videos on our YouTube channel.

You can message me through Linked In.

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TIM WILLIAMSON

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