Lawbite: Court says no to a landlord’s forced entry but yes to a residential tenant’s potential imprisonment and/or eviction.

Southern Housing v Mr James Emmanuel [2025] EWCC 58

Summary

The Court has held that it does not have the power to make an Order permitting a landlord to use force to enter residential premises, but has simultaneously issued a reminder to residential tenants that they may face eviction or imprisonment for contempt of court, if they refuse to comply with a Court Order granting the landlord access.

This is a County Court Judgment and therefore non-binding on other Courts, so it remains to be seen whether other Courts will agree that a change in law would be required to grant such a power to the Court or whether they consider they have sufficient powers to do so already.

The decision will be of interest to landlords and tenants of residential and mixed-use properties in England and Wales.

Context

The Defendant in this case was a residential tenant of a flat in East Dulwich. The landlord needed  access to the flat to carry out a gas safety inspection to meet its obligations under the Gas Safety (Installation and Use) Regulations 1998.

There was an express right of access written into the tenancy and the landlord had already obtained a Court Order (an Access Injunction) affirming the landlord’s rights to enter – but the tenant continued to refuse access.

The Landlord therefore applied to vary the Court Order so that it included a right to force entry. The Landlord’s position was that Court had the power to grant such an Order under the Civil Procedure Rules (CPR), specifically Rules 70.2A, 25.1(1)(c)(ii) and (d), or 3.1(2)(p).

The Judge acknowledged that other Judges in the County Court had previously adopted a generally purposive interpretation of the Civil Procedure Rules and relied upon them to grant such Orders permitting entry by reasonable force, but that others had declined on the basis the Courts do not have the necessary powers. The message was inconsistent.

Decision

The Judge relied on the previous High Court decisions of Southam v Smout and Morris v Beardmore and in doing so reached the conclusion that the Court has no power to authorise a landlord to force entry to a tenant’s home unless there is express law that bestows that power.

The Judge recognised that there are some statutory powers of entry, expressly conferred by Parliament such as in relation to the Gas & Electricity Boards, Police warrants and Environmental Protection. However, the Gas Safety regulations applicable to the current case do not confer any such power of entry and Parliament ought to have included one if that is what was intended.

The Judge also noted that different rules apply in the context of Possession Orders (as opposed to Access Injunctions) where reasonable force can in principle be used in certain situations where the claimant is immediately entitled to possession.

However, in this case the Judge held that the CPR are confined to matters of Court procedures; they cannot affect substantive rights, override a tenant’s right to exclusive possession and privacy or nullify what would otherwise amount to a trespass.

Instead, the Judge affirmed that as the tenant in this case was in breach of the Court Order granting the landlord access, then the landlord was permitted to bring proceedings against the tenant to evict the tenant (and therefore regain possession) and/or for contempt of court, punishable by imprisonment – noting that arguably this would have a much more damaging impact on the tenant than the entry by force order sought by the landlord.

Next Steps

• The concluding remarks from the Judge were such that if landlords are to be permitted to use force to enter a tenant’s residence in such circumstances, then Parliament need to legislate for this and provide an express authority
• Otherwise, the point remains open to the senior Courts to decide whether the Courts do have the necessary power and to that end, the landlord in this case has been provided with the opportunity to appeal directly to the Court of Appeal; in fact the Judge in this case expressed a desire for more authoritative guidance on the issue one way or the other
• In the meantime, given the Judge’s detailed reasoning in this case, other Courts may be more reluctant to grant any Orders permitting landlords to use reasonable force to enter, even though this decision is not binding
• The Judge in this case estimated nationally there must be hundreds of ‘Access Injunction’ applications made each month, many of which routinely include an Order permitting forced entry - so it is bound to be something that the Courts are currently having to address - whether that be in the context of the Gas Safety Regulations or similar legislation which provides landlords with a right of access, for instance the Smoke and Carbon Monoxide Alarm Regulations 2015 or the Energy Performance of Buildings Regulations 2012

The impact of the decision is limited to residential properties, but landlords of mixed-use premises should also take note of the outcome