When landlords sell: part 3

So you've found out that your premises are on the market and you're ready to drive a hard bargain about a schedule of access for your landlord to show prospective purchasers through.

But there's a few more things that the landlord or agent may want spring on you and that you should be prepared for. What do you say when the landlord wants to put up a for sale sign? Conduct an open house inspection? Conduct an auction on-site?

(Malloy has a good look around at the open house.)

None of these things are expressly mentioned in the Residential Tenancies Act 2010. What is mentioned, specifically and repeatedly, is that the premises will be available for 'inspection by prospective purchasers' (mentioned in each of the subsections (1)-(4) of s 53). In s 55, which deals with access without consent, the wording is only slightly different: at s 55(2)(f), it's access to 'show the premises to prospective purchasers.' (This difference in wording is really just one of perspective: prospective purchasers inspect what landlords show).

So, to be clear: the purpose of the access allowed by the Act is to 'inspect' or 'show' the premises, and that's it. Coming onto the premises to erect a 'for sale' sign is not access for the purpose of inspecting or showing the premises – and it doesn't fit with any of the other allowed purposes for access at s 55. So no 'for sale' signs without your consent.

It's the same for coming onto the premises to conduct an auction: that purpose goes beyond the allowed purpose of inspecting/showing. Likewise where the proposed access is for entertaining or victualling the prospective purchasers. (A little while ago, the Tenants' Union heard of a case where a selling agent proposed to host a 'champagne and canapes' soiree for prospective purchasers at rented premises. No word on whether the tenant was expected to serve the drinks or help with the washing up. In any event: this is beyond the allowed purpose, so there's no right of access under the Act.) None of this is allowed without your consent.

What about 'open houses' – which are, after all, for the purpose of inspecting or showing the premises? An open house may pass the 'purpose' test, but there's an argument (we doff our caps to legendary tenant advocate Robert Mowbray for this one) that an open house is not allowed under the access provisions of the Act. This is because an open house would admit not only 'prospective puchasers', but also cat burglars, neighbourhood stickybeaks and anyone else who cares to wander in.

There's another argument you can make against open houses – and this one doesn't turn on the wording of the Act, and goes straight to your landlord's hip pocket nerve. Point them to s 61(2) of the Act:

(2) The Tribunal may, on application by a tenant, order the landlord or the landlord’s agent to pay compensation to the tenant for damage to or loss of the tenant’s goods caused by any person in the exercise of a power of the landlord or landlord’s agent to enter residential premises under this Act or the residential tenancy agreement.

In other words, if a so-called 'prospective puchaser' knocks off your iPod, or camera, or antique netsuki, the landlord (or the agent) may be ordered to compensate you for your loss. A sensible landlord or agent should try to minimise this risk by showing the premises to bona fide prospective purchasers only, without a risky open house.

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We hope this short series of posts helps you survive the spring sales season. As we said at the beginning, many of the provisions in relation to sales and access are new to the 2010 Act – so landlords and agents may not be completely up to speed on them. If you encounter any problems (at least, any problems that threats of nudity can't fix), please contact your local Tenants Advice and Advocacy Service – and if you want to share your experience of the new provisions, let us at the Tenants' Union know too.