District judge refuses to give social landlord permission to force entry into home of tenant to do gas safety check

The case arose at Bromley County Court and was heard by District Judge Cridge.

He said in his judgment that although the tenant was liable to contempt proceedings if he continued to refuse Southern access, the courts could not authorise forced entry and nor could the Civil Procedure Rules be used to allow this.

Explaining his conclusion, DJ Cridge said: “The sanctity of the home is deeply embedded in our law. Forced entry may be authorised where Parliament has conferred the power, or where the common law recognises forced entry may be justified. Neither applies here. The Civil Procedure Rules cannot be used to circumvent that principle.”

He went on to say: “No judge has power to make an order permitting a landlord to force entry into their tenant’s home by way of enforcing an express or implied contractual right of access.

“The claimant’s current remedies remain those already available: contempt or possession proceedings.”

DJ Cridge said he recognised these remedies were “slow and expensive” and it was therefore “perhaps understandable that landlords seek this forced entry shortcut, particularly given the number of access injunction applications landlords (especially social landlords) find themselves having to make.

“However, in my view that shortcut is not available to them. Whilst this outcome might appear harsh or impractical, it seems to me that reform of the law on this question is a matter for Parliament, not the courts.”

He noted that Bromley Crown Court alone dealt with an average of 15-20 ‘access injunction’ applications each month and “nationally the monthly figures must run into the high hundreds”.

Although some judges had made orders permitting forced entry, “I have explained why, respectfully, I take a different view from them”.

The volume of these cases and differing judicial approaches meant “it may be desirable for a more senior court to provide authoritative guidance, one way or the other”.

Southern Housing had secured an access injunction requiring the tenant to allow the gas safety check, but he refused entry.

DJ Cridge said prohibiting forced entry did not mean the tenant could continue to deny Southern access, and he might face proceedings for eviction or to imprison him for contempt if he persisted.

Southern had argued that any county court judge could make an order permitting a claimant to force entry into the defendant’s flat.

But DJ Cridge explained that it was wrong for Southern to say the Civil Procedures Rules could be used to allow for an order to force entry.

He said:”The Civil Procedure Rules are subordinate legislation confined to matters of court procedure. They cannot affect substantive rights or create new substantive powers overriding such rights unless Parliament has expressly authorised them to do so.

“To use the rules in the way [Southern] proposes would be to avoid the centuries-old common law position that forced entry into someone’s home is unlawful without the express authority of either an established rule of law or Parliament.

“In my view that is so whether rule 70.2A, 25.1(1)(c)/(d), 3.1(2)(p) or indeed any other rule in the Civil Procedure Rules is relied on.”

He said trespass into a home - even by a landlord - was “a tortious wrong and a possible criminal offence” and only Parliament could authorise such an act.

“A procedural rule cannot [do that[,” the judge said. “Simply because it is a court making the order does not somehow alter that position.”

Commenting on the ruling, solicitor Mollie McQuade and senior associate Rebecca Sembuuze of law firm Anthony Collins said: “It's important to note that this case is not legally binding and contradicts Sovereign Housing v Hall – another non-binding county court case.

“Southern Housing was granted permission for an appeal to the Court of Appeal. If pursued by Southern Housing, this may lead to a binding decision to put the issue of forced access to rest. 

“For the time being, it remains a grey area of law, with no clear authority for a Judge to grant terms permitting forced entry. Such remedies remain at the discretion of a County Court Judge, but we may see more judges decline to grant such orders following publication of this decision.”

Mark Smulian