Landlord's Right of Entry versus Tenant's Right of Privacy

Tenants are easily and understandably upset when they feel their privacy is invaded. Landlords, on the other hand, have a legal right to enter their rental units in certain situations. Sometimes a tenant's need to be left alone and a landlord's need to enter conflict. If they do, it is extremely important that both parties understand their rights.

About half the states have access laws specifying when and under what circumstances landlords may enter tenants' premises. Typically, there are only four broad situations in which a landlord may legally enter while a tenant is still in residence. They are:

• to deal with an emergency
• to make needed repairs (or assess the need for them)
• to show the property to prospective new tenants or purchasers, or
• when the tenant gives permission (for example, invites the landlord to enter).

In most instances (emergencies and invitations by tenant excepted), a landlord can enter only during "normal business hours" (usually considered to be 9 a.m. to 5 p.m. Monday through Friday, though some people claim that Saturday should be a business day) and then only after "reasonable notice," which is presumed to be 24 hours.

If a landlord does not follow these rules, a tenant's first step is to politely ask the landlord to do so. If violations persist, a follow-up letter is in order. If this doesn't help, it is possible to sue in small claims court if the landlord's conduct is persistently outrageous. The specific claims that a tenant might make against a landlord in such a situation include: invasion of privacy, trespass, harassment, violation of the tenant's right to enjoy his or her home free from the landlord's unreasonable interference, or intentional or negligent infliction of emotional distress.

A tenant who sues a landlord for entering the tenant's unit without permission may have a hard time proving much in the way of money damages. (A judge will want to know why the landlord's improper entry justifies a good-sized monetary award.) However, if a tenant can show a repeated pattern of trespass (and the fact that the tenant asked the landlord to stop it) or even one clear example of outrageous conduct, he or she may be able to get a substantial monetary recovery.

As a tenant who feels you've been trespassed upon, how much do you sue for? There is no easy answer, but one approach is to keep or reconstruct a list (or diary) of each incident, complete with a fair amount of detail about the distress it caused you. Then read it over and assign a reasonable dollar value to each hour of distress. For example, if a landlord's repeated illegal entries into your house caused you 75 hours of serious upset, and you value your time at $25 per hour, you would sue for $1,875.

If you are a landlord being sued, but believe that your entry or conduct was legal, you should be able to document this. For example, if a tenant claims that you entered his or her apartment without 24-hour notice, then you should be able to show a copy of a formal 24-hour notice to enter to make needed repairs that you sent to your tenant (notes you took documenting related phone conversations would also be useful). You could also ask a repairperson or cleaning service to testify (either in person or in writing) as to the date and time that person entered the rental unit, which should be at least the legally required amount of time after you delivered the notice. Or, you may be able to explain that the urgent nature of the repair required you to enter sooner.

But what if you are a landlord whose tenant repeatedly refuses to let you or your employees enter during normal business hours for one of the legitimate reasons cited above? In such a situation, you can legally enter anyway, provided you do so in a peaceful manner. Bring someone along who can later act as a witness in case the tenant claims some personal property is missing.