What is “Right of Entry” Legally?
Understanding Right of Entry: So, What is Right of Entry?
Anyone who maintains a home and/or manages property is practically guaranteed to come into contact with the concept of ‘right of entry.’ Whether or not you may not even know that it exists, right of entry certainly comes into play in a practical sense. Essentially, right of entry is used to define the circumstances under which one person may enter the land or real estate of another party. The party that ‘comes onto’ the land of another must do so legally, or otherwise risk consequences that range from possible eviction to damaging litigation. Right of entry and its legal use is defined in general law and in most states via statute.
One of the most common uses of the right of entry definition is in residential leasing. Landlords are typically explicitly granted the right of entry to carry out necessary maintenance , to show the property to prospective tenants or buyers, and to remove personal property from an expired lease. In return, landlords are expected to give notice of the intent to enter in the form of written communication. While most leases and local/state statutes require landlords to give notice at least up to 24 hours in advance, the notice period can be as much as 14 days in a few jurisdictions. Providing this notice in writing is highly desirable, particularly in the event a landlord needs to take legal action against the tenant for any reason.
History of Right of Entry Statutes
Traditionally, the common law granted a right of entry to landlords, seamen, and persons acting pursuant to a statutory power such as a bailiff, officer of customs or an officer of the revenue authority. Neither the methodologies for determining a material fact nor the imposition of liability in respect of trespass had the same currency. The latter point is actually important. It was only when the enforcement mechanisms were made more effective that the right of entry started gaining more prominence in both education and practice.
Going back, a right of entry has its origins in the 5th century where it established as a principle that jurors had the right to enter any place to secure evidence. Over the centuries, the law became somewhat fragmented, somewhat due to the development of the law relating to property and trespass generally. Although now unified, in the 16th and 17th centuries, the right of entry was granted in relation to a variety of subjects, such as the right to distrain goods, to demand rent, to make goods fordistress or to make a distress to recover treble value. So, while the concept of a right of entry had been around for quite some time, it was seen in a very narrow context. It was in 1680 where the concept of the right of entry had merged with the idea of gaining access to land in tax assessments. Lord Hale describes the right of entry as follows "The right of entry being merely a right to come upon another man’s ground for a particular purpose (which is different from a right of way wherein a man hath right to pass by another man’s ground, and to go over a man’s ground, although not with intent to do him any legal injury, which at all times hath been permitted, and hath been most frequently put in use in reference to the King’s officers for the exacting of his dues and rights), and therefore in the nature of an action upon the case though not so large as an action of trespass, or a visne (as it is called in our books), he ought to be a person who is himself concerned in such right, or one of them which have a common right in the many, the principal of whom hath made him his agent in the said entering, which agentships are usually by leave of the court when they are general, but in particular cases the party that hath the right to enter, may enter and have an ordinary action without leave of the court for his trespass: As for example, upon a writ of habeas corpus ad deliberandum et recipiendum, the crown hath a right to enter into any gaol, for the taking of any person committed to prison upon such writ, which right some Judges and Justices do usually grant to their clerks, to be surveyors of the prisons which the King sends prisoners into, but these measures do never extend to his Majesty’s chief officers of the peace or others, except that upon some very urgent occasion they obtain a special warrant from me, or another Justice of the King’s Bench [Hale C.J.] ".
If anything, this excerpt shows the limitations in common law and even modern practice of the right of entry. Entry could only occur "in the nature of an action on the case" without trespass being permitted, but would only have qualified leave in the circumstances of a tax dispute. Some theorists of the time argued that the right of entry was "a servant of special bailiffs in sheriff’s courts" and "an officer of the King’s courts". It was not until the 19th and 20th centuries that the scope of the right of entry broadened and allowed local authorities (meaning for example transport authorities) to gain access to property in order to fulfil their functions.
It has also undergone some legislative changes. For example, in 1877, a right of entry was granted against the tenant for trespass by statute. It was not, however, until the Local Government Act 1999 that the powers became unified in relation to local authorities. Thus, there has still not been a precise definition as to the parameters of the right of entry – differing interpretations may arise in both practice and theory.
Applicable Law, Rules and Regulations
The legal framework governing the right of entry into private property spans a complex matrix of federal, state, and local laws and regulations. Jurisdiction generally rests with the individual states and their legislatures, leaving it to states to enact their own statutes addressing the right of entry. Over the years, many states have instituted statutory requirements governing the rights and liabilities of property owners and parties seeking a right of entry. In addition to state statutes, some municipalities regulate the right of entry within their jurisdictions through ordinances. These laws are as diverse as the states within which they reside.
As a general rule, most statutory schemes governing the right of entry have been enacted to ensure that a property owner’s rights are protected when an entity seeks to enter onto his or her property. While most states do not require a property owner’s permission to enter upon the property, virtually all require advance notice to be given to the property owner of the proposed entry. This advance notice must specify the purpose of the entry. However, it does not necessarily need to indicate the specific date of entry. Certain states, such as Maryland, require notice to be sent by certified mail. Other states, such as Massachusetts and Nebraska, require notice to be served in-hand on the property owner. In some states, the statute specifically provides that notice is not required where the right of entry is "urgent" or for "civil defense purposes."
Property entry statutes also impose limitations on the timing of the entry. For example, New Hampshire prohibits entry onto the property during the period from sunset to sunrise, absent a court order authorizing entry. Massachusetts statutes prohibit entry onto the property during weekends and legal holidays (except in cases of an emergency). In Maryland, property may not be entered for purposes such as the taking of a property owner’s photograph during the night.
Most state statutes also address the manner in which entry may be accomplished. For example, Maryland prohibits the entry of property with a motor vehicle unless that vehicle is specifically designed for entering upon and traversing upon the land. Similarly, Massachusetts prohibits the removal and/or throwing down of fences that run contiguous to the land of a property owner, and prohibits "cutting down, breaking down or otherwise injuring fence, gates or bars."
The extent of the statute may turn on whether the entry is for purposes of constructing a public utility (or other "project") or performing other activities. Some statutes differentiate between an entity performing construction and an entity performing survey or other pre-construction work. Other statutes differentiate between a government entity and a private entity. Still others include an exhaustive list of the specific authorized activities.
Some jurisdictions have established administrative procedures for obtaining a right of entry. The typical process involves a petition to a federal or state regulatory agency or a lawsuit filed with the appropriate state or federal court in which the applicant seeks (among other things) to take a right of entry on the affected property. The applicant is generally required to notify the property owner of the petition, who may in turn contest the petition. Hearings on the petition may occur and a court order may be issued authorizing the entry. Some states also provide for injunctive relief where an entity enters property without a right of entry.
While most states clarify that the right of entry statute is in addition to, and not a replacement for, any existing common law right to enter property, the scope of such common law rights can vary widely among states. For example, the right of entry statutes in some states expressly abrogate common law or statutory rights, or otherwise limit damages, when an entity enters property for certain purposes. In Pennsylvania, the right of entry statute "in no way limits the responsibility or liability of the party entering upon the lands . . ." Likewise, the right of entry statute in North Carolina specifically states that it does not limit "the rights and liability of parties," but provides that it is not "intended to be contested with the adverse claimants."
Conditions and Limitations
Common conditions attached to real property right of entry use give the right of entry a degree of legality and protection against wrongful entry. Occupants of property are often protected by legal rights that restrict in some way, the right of entry by others. Such restrictions are generally limited to circumstances only, such as consent being required, or the occupant must be notified, or is entitled to reasonable notice. For example, the right of entry may be limited to particular hours or dates; or even indefinitely until a specific task or condition has been met. Such conditions may be dictated by the relevant environment – such as commercial, residential or otherwise. For example, a tenant may only give permission for inspection during the day, or not at all within the night time periods. In America, landlords possess the legal rights of entry to examine the condition of a dwelling, make repairs, do necessary maintenance, inspect for pests or lead paint, market the property to prospective tenets and show the home to interested buyers. Courts in a few jurisdictions have ruled that landlords must not enter without permission, whereas most require landlords to provide an occupant with reasonable notice before entering to inspect, repair or maintain a residence. United Kingdom law entitles landlords to enter property to make a fire safety inspection with a minimum 24 hour notice. Tenants must be given time and reasonable notice for ordinary inspection, maintenance and repairs, although real estate agents may enter upon providing only verbal notice. Without prior agreement, landlords cannot come onto the premises for any reason. Authorities in Australia have identified that a landlord may enter premises as a matter of right to inspect, repair or maintain the property, provided that they have first given the tenants reasonable notice of their intended entry. The statutory regimes governing the rights of entry by landlords provide that: Those situations where the law does not allow landlords to enter without prior request include: In many jurisdictions, laws and codes of practices specify the rights of employers to require employee attendance at the workplace to carry out job requirements. For instance, employers can enter the workplace for the purpose of assessing work performance, occupational health and safety issues, completing an audit or inspecting the premises. Statutory interpretation has upheld that cases do not involve a dismissal of the contract; rather, the authority to access the premises to complete a specified requirement remains. Accordingly, the case of "implied term" of employee consent to workplace access has been cited in support of this right of entry.
Enforcement and Contesting
The ability to enforce such entries is considered the companion to right of entry in terms of setting out the limits of both. The actions or behaviour of either party may or may not proceed to leading to a dispute, it is essential to understand how they will be dealt with in the event that they are required.
The majority of enforcement proceedings against a defective entry usually involve the landlord or rightful party, trying to enforce its own right of entry against a resisting tenant or other occupant.
The enforcing party (usually the landlord) can approach the relevant court or tribunal to seek an order requiring the tenant or other occupant to permit entry. The specific mechanism for seeking such an order will depend on relevant legislation and on the particular circumstances of the case, as set out below:
Applications to Land Court In South Australia, s 168A of the Land and Business (Sale and Conveyancing) Act 1994 (SA) permits the Supreme Court of South Australia to appoint a neutral expert to assist a landlord with the costs of a fully successful right of entry application to retrieve possession of property. This court also has power under s 243 of the Land and Business (Sale and Conveyancing) Act to deal with specific proceedings as to disputes between landlords and tenants.
Applications to Local Courts Most Australian local courts have jurisdiction to entertain enforcement proceedings in relation to access to property . The precise terms of those powers may differ across states.
Generally speaking, if a party makes an application to a court for a right of entry order and that order is disregarded, the party can apply for contempt proceedings in relation to the non-compliance of the order.
If further assistance is required or an individual is suspected of intentionally evading the order, a party may have the right to apply for a search warrant.
Criminal proceedings in relation to trespass Section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides for up to two years in prison or a $2200 fine. While being a summary offence, meaning there is no requirement for the individual accused of committing the offence to plead guilty or enter a plea, it may be an effective tool for landlords against tenants refusing access.
Ejecting a tenant If a tenant persistently disobeys a right of entry order, a property owner could consider terminating their lease, and seeking an eviction order. This may involve litigation to resolve the conflict between both parties.
It is critical that parties understand the law in relation to the entry points available to them by statutory or common law, and the mechanisms by which they can enforce such a right. There can be severe penalties for any breach of orders to enforce right of entry.
Consequences for Illegal Entry
The consequences of unlawful entry can be severe for landlords who may face proscribed sanctions, including liability to homeowners for damages, potential claims for trespass and invasion of privacy. In extreme cases, a landlord could face charges for criminal trespass. For example, in in Mohr v. Mohr the court awarded punitive damages against a landlord in an amount that represented one year of rent even though no trespass had occurred because the tenants had vacated the premises prior to any unlawful entry. Similarly, in Lichtenstein v. Lichtenstein the court awarded tenants three years of rent plus punitive damages for failing to give notice prior to showing the apartment; a decision that is quite favorable to the tenants. However, tenants often must balance the benefits of a damage award against the risk of having to pay for the legal expenses associated with the litigation of what is often a very private and personal issue between the parties. Tenants should also be aware of RPL § 235-f(2) and other provisions of New York law (such as GBL § 392-b and § 759) that require advance notice to tenants prior to entering the residence.
Practical Advice for Landowners
Here are some practical tips to help ensure a seamless process of exercising your right of entry: Ensure that you create a reasonable and specified time-frame for which you anticipate your entry into the premises without needing to exercise an immediate right of entry. A common issue has to do with the "reasonable period of time" requirements. There are local laws that set restrictions on the entry and inspection of dwellings that say entry must be given "during reasonable hours," as well as other laws that state the only time that entry can be demanded is between the hours of "8:00 am to 5:00 pm on weekdays." Due to the possibility of a local law restricting the hours in which you are given the right of entry, it is wise to specify the specific times for which you anticipate entering the premises in your lease agreement. Drafting the lease in this way gives you the opportunity to exercise the right of entry without the fear of violating any local laws, even if it is later discovered that your entry hours conflict with said laws. When you provide the warning to your tenants that their premises will be entered, avoid providing them with language that looks like an eviction notice. When your tenants see a warning note on their door that is written in large font, they may think that they are being evicted. This may lead to confusion between you and your tenants, so it is important to keep the language you use neutral and brief. Some good examples of neutral language to use are: "This is a notice that an inspection will be conducted on ___," "This is a notice that repairs will be made on ___," or "This is a notice to inform you that we will need to enter your premises on ___ for ___. Every effort will be made to complete the work during normal business hours (8:00 am to 5:00 pm). Thank you for your cooperation and understanding in this matter." Many people want to avoid even the appearance of forcing tenants out of their homes, so using neutral language can help.
Illustrative Examples, Case Studies and Chequered Histories
There are numerous instances where the legal concept of right of entry has played a pivotal role in determining outcomes in property disputes. For instance, in the landmark case of Boulting v. Domestic Tools Ltd (1976) 1 WLR 234 (HL), the House of Lords concluded that a property owner could not grant an exclusive right of entry to another party for a fixed term without considering the rights of other adjoining landowners. This decision has had a significant influence on potential foreclosures and the manner in which potential foreclosures can be executed on, for example, by requiring a notice period.
Sometimes the grant of a right of entry is couched in terms of a lease or an easement. In McHugh v. O’Rourke [2014] IESC 3, the Irish Supreme Court considered the grant of a right to use land for a specific industrial process to be deemed a lease as opposed to an easement despite the possibility of "overhang". This was because the right of entry was considered to be exclusive in nature. Similar outcomes can be seen in the Irish case of Ridge (Ballyreedan) Management Company Ltd. v. Dempsey [2009] IEHC 375. The court there determined that that although both O’Rourke and Ridge created an exception to the common law rule against estoppel by words and conduct , the decisions did not alter the original grant in question.
Grants of rights of entry have also been considered in relation to personal rights and those granted to a corporation. In the case of South West Water Services Ltd. V. Energy-Plus [2012] UKUT 38 (LC) an assignment of a water supply business to another company was considered to be a novation thus resulting in the loss of any rights of entry, This contrasts with the grant of a right of entry for an indefinite time period which potentially survives the death of an individual if exercised prior to his or her demise (Re London and Manchester Assurance Co Ltd., Bolivar and Sons Ltd v. Bennett [1980] Ch 403 at 410).
What emerged from these examples was that a rent review clause did not qualify as a right of entry because a right of entry must be negotiated afresh and not arise by way of an operation of an agreement. A right of entry value may very well be incorporated for the purposes of a rent review clause in a commercial lease however the question of whether the right of entry can be exercised in accordance with the terms of the lease must be separately considered. Consequently, courts tend not to consider rent reviews when interpreting the nature of rights of entry.