Tenants' Right to Privacy
Tenants have an expectation of privacy in their rental unit that is protected by law. This right extends to all of the rental premises, including decks, balconies, yards, and garages, if these areas are included in the rental agreement. Many states have enacted statutes detailing when and how landlords may legally enter rental property. Other states may not have laws that explicitly protect tenants’ privacy rights, but their appellate courts may have decided cases in favor of tenants’ right to privacy. One method of establishing expectations around privacy is to include a clause in the rental or lease agreement that, in accordance with applicable law, details reasons the landlord may enter the property, the time of entry, and how much notice is required before entry.
Landlord Entry and Right of Access
A landlord may enter a rental property if the tenant gives permission. But if the landlord has not received permission, the tenant is entitled to proper notice of an intention to enter. The amount of notice may be set forth in state laws, or within the rental agreement. Typically, statutes limit a landlord’s access to rental premises, setting forth the appropriate notice and hours of entry, as well as legitimate reasons for requesting access. Notice may be defined as 24 hours or two days. Some states simply require a landlord provide “reasonable” notice. In most situations, it is best to give tenants as much notice as possible, and to either give notice in writing or document situations where you have given notice verbally or by email.
Landlords are often required to enter the rental premises only during ordinary business hours, usually from approximately 8 AM to 5 PM. Often, the time of entry is stated in the rental agreement or defined by state law. It is open to interpretation as to whether the weekend would be considered reasonable.
Legitimate reasons for a landlord to enter the property include making repairs, assessing the need for repairs, or showing the unit to prospective buyers or renters. Another permissible reason is to inspect the unit for needed repairs, on perhaps an annual or semiannual basis.
Emergency situations also qualify, especially if the emergency subjects the tenants to potential harm. Particularly in this context, it is important to make clear to your tenants that they may not change or add locks to their unit without your knowledge or permission, as this may impede your access in the event of an emergency.
State law may provide a right of entry when a tenant has abandoned the property. This right may also be set forth in the rental agreement. Some states also provide the landlord with the opportunity to enter to check on premises during extended absences of the tenant. These may be defined as seven days or longer. It is wise to include a provision in your lease or rental agreement addressing extended absences by tenants and your right of entry in those circumstances, as allowed by the law in your state.
Entry by Third Parties
At times, third parties such as local building inspectors or law enforcement may request access to a tenant’s unit. If inspectors are responding to a specific complaint about a tenant and the tenant does not grant the inspectors entry, they may ask you as the landlord to give them access. If you provide your tenant with the amount of notice required by law or your rental agreement, you can likely provide entry. If you do not, the inspectors may obtain a warrant for entry. Similarly, if your rental property is located in an area that conducts periodic code inspections, such as for fire safety, the inspectors will generally need to obtain a warrant to enter over a tenant’s objection, which you cannot override.
If the police are seeking entry into a tenant’s unit, you cannot give it to them without a search or arrest warrant, though there are some exceptions for things like emergency situations and pursuing a fleeing criminal suspect.
Under no circumstances should you or a property manager grant access to a tenant’s unit to someone who claims to be a friend or relation of the tenant without the explicit permission of the tenant. Doing so could lead to a serious invasion of privacy or risk of harm to the tenant, as well as liability for you as a landlord.
Tenant Remedies for a Landlord’s Abuse of the Right to Privacy
If a landlord or an employee such as a property manager has invaded a tenant’s right to privacy severely or repeatedly, which can include physical invasions of privacy such as unauthorized entry into the unit, or other invasions such as sharing information about a tenant without permission or spying on them, the tenant has the right to take legal action. For example, a tenant may sue for breach of the covenant of quiet enjoyment of the rental premises. Implicit in all rental agreements is the right to use the property without interference by the landlord. Quiet enjoyment includes the right to clean premises, the right to exclude others from the property, and the right to basic services. Some courts have interpreted the right to include other rights, such as the right to be free from a ringing smoke alarm.
Tenants can also sue for invasion of privacy, trespass, or even intentional infliction of emotional distress in extreme cases. They may also simply move out without responsibility for any further rent.
When a Tenant Won't Grant Access
If a tenant is refusing to allow you to enter the rental unit when you have given notice and have a legitimate reason, as a first step it is usually best to try and resolve the issue with the tenant through communication. For example, you can send them something in writing reminding them of their obligations under the lease or rental agreement to grant you access under the circumstances set forth in the agreement and/or under state law, or you can pursue mediation. If the tenant continues to refuse and you have followed all legal requirements for notice and reasons for the requested entry, subject to some exceptions such as rent control laws, you can potentially initiate eviction proceedings for the tenant’s failure to abide by the terms of the lease or rental agreement.