Landlord Right to Entry after the End of COVID-19 Tenant Protections
The Bencher—November/December 2021
By Jackie Rosen
Since the World Health Organization officially characterized COVID-19 as a pandemic on March 11, 2020, the United States has gone through rounds of changing state and local guidance, including many orders directing individuals to stay at home. Although frequently overlooked, the ability of landlords to enter leased residential premises during the pandemic is of ongoing concern. Understanding the state of the landlord right to entry and corresponding tenant right to exclude before and during the coronavirus pandemic may provide valuable insights on the direction of the law and useful considerations for landlord-tenant attorneys.
Pre-pandemic Landlord Right to Entry
As landlord-tenant law developed, carveouts to a tenant’s right of possession over leased property have allowed for landlord entry in some situations as obligations have gradually shifted from the tenant to the landlord. Modern residential leases often allocate responsibilities by leaving some measure of landlord control over leased property. For instance, many leases require the tenant to maintain premises in the same condition as at the beginning of the lease term (for instance, by replacing lightbulbs and other minor maintenance), but leave the responsibility of other maintenance and emergency repairs on the landlord (such as the responsibility to hire an electrician).
At this time, the vast majority of states have enacted statutes clarifying when and for what purposes a landlord can enter leased residential property, absent emergency circumstances. These laws generally address the notice that a landlord must generally provide a tenant prior to entry, the time of day the entry can occur, the purpose of the landlord’s entry, whether abuse of that right constitutes harassment, and whether tenant consent to entry is required.
While not fully adopted verbatim in any state, the Revised Uniform Residential Landlord and Tenant Act has proposed requirements analogous to those enacted by states. Rev. Unif. Residential Landlord and Tenant Act, Art. 7 § 701 (2015). Under the Act, a landlord must generally provide 24 hours’ notice prior to entering a leased residential property, such entry must be at a reasonable time, entry can only be made for limited purposes (such as inspection or showing the unit), a landlord may not use the right of entry to harass the tenant, and any entry requires tenant consent (which cannot be unreasonably withheld). Id.
While the Act serves as a useful baseline for comparing states’ approaches, there is some variance between states. Florida requires only 12 hours’ notice, while Delaware and Vermont require 48. The requirements for sufficient notice also vary between states. As with notice, there is substantial variety between the time of entry, permissible purposes, and many other aspects of this right.
These existing statutes have raised additional concerns when applied during the coronavirus pandemic. The balancing between landlord interests in the maintenance of the property and tenant interests in possession without disturbance are complicated by the additional risk to tenant health by exposure to individuals outside their home environment. Complicating this guidance is the current housing boom across the country, including in the rental market. This boom has the potential to increase showings of rented residential units, bringing greater attention to the landlord right to entry.
State and Local Pandemic Response
At least two states explicitly limited the purpose for which a landlord could enter leased residential property during the pandemic, prohibiting real estate showings of occupied units. Both Nevada and Illinois have since retracted their guidance. Some municipalities, including Los Angeles, California, took similar approaches. These limitations were a clear contrast with the general rule that real estate showings are an appropriate reason for landlords to enter leased property.
In addition, some localities went beyond regulating the purpose for entry, instead restricting entry for any purpose, absent emergency circumstances. Wisconsin issued a statewide order broadly restricting landlord access, which was ended after a lawsuit from the state legislature. Wis. Legislature v. Palm, 942 N.W.2d 900 (Wis. 2020). Salt Lake County in Utah also temporarily adopted the broad language used in Wisconsin.
Applying Pre-COVID Laws to an Ongoing Pandemic
The flexible language in many states’ pre-coronavirus statutes allows for consideration of the pandemic when determining how landlords and tenants should navigate landlord entry for non-emergencies. States that include “reasonableness” requirements may include in that test consideration of the public health risks posed by entry, especially in localities where community spread is still substantial.
Others have posited that the pandemic has in fact changed what is “reasonable.” See, e.g., Home Line, When Can the Landlord Enter My Apartment During the Pandemic? (July 28, 2020), (“What is ‘reasonable’ in a pandemic is different than what is reasonable under other circumstances.”); Virginia Poverty Law Center, Your Rights as a Tenant During the COVID-19 Crisis: When Can Your Landlord Enter Your Home? (Apr. 2020), (“[I]t is reasonable to refuse to let your landlord and future tenants into your home.”); Office of the Attorney General for the District of Columbia, Know Your Rights: Tenants and COVID-19 (July 21, 2020), (suggesting that those in high-risk categories request delay of nonemergency repairs).
Reasonable notice during a pandemic may require a landlord to provide notice further in advance, specify the exact time and length of entry, specify areas in the unit that will be accessed, identify the number of people who will enter the property, etc. Such notice should, at a minimum, be adequate to allow for tenants to determine how best to remain safe during the entry, for instance, by arranging to vacate the premises for a period of time, placing physical barriers within the property to limit possible exposure during the entry, or removing personal items from areas the landlord or their agent will access.
In addition, reasonable times for entry may be adjusted in light of the pandemic. With much of the workforce working from home and children engaging in distance learning, hours that were “reasonable” only a couple of years ago may be extraordinarily inconvenient for many tenants. For example, electrical work that could result in a loss of internet access could place a significant burden on many tenants. While it is certainly not required that a landlord avoid any possible inconvenience to a tenant, compliance with state laws requiring “reasonable hours” for entry may now result in increased coordination with tenants.
Finally, existing laws often clarify that abuse of the right to entry may constitute harassment in some circumstances. Given the greater coordination and health concerns related to entering leased residential premises during the pandemic, especially for high-risk tenants, this should be considered by landlords that have extensive repair work in progress or frequent property showings. Such frequent entry that would be merely inconvenient during normal times may be extraordinarily intrusive in the new circumstances of a pandemic. Landlords can avoid the issue by increasing flexibility with tenants when possible and by limiting the number of entries made. For instance, instead of scheduling multiple showings, it may be preferable to hold an open house or to schedule back-to-back showings to limit the number or duration of the entries.
Eggshell Tenant Concerns
Certainly, additional precautions, changes in notice requirements, flexibility in timing of entry, and creative solutions to avoid entry when possible, all place a significant burden on landlords. Just as an eggshell plaintiff raises additional concerns in the tort context, this burden may be magnified for landlords that rent properties to tenants at higher risk of coronavirus complications.
For instance, what may be a reasonable entry for a low-risk individual who is vaccinated may not be reasonable for a high-risk individual who has not been vaccinated. As an extreme example, repeated intrusions that require a high-risk tenant to frequently vacate the premises could potentially rise to the level of constructive eviction. Although such a case seems unlikely, landlords (and their lawyers) may avoid future headaches by preemptively setting expectations for nonemergency entry.
Given the ongoing public health concerns in many areas of the country, landlord and tenant lawyers may find it beneficial to work together preemptively before issues arise. At a minimum, landlords can identify safety protocols prior to entry, opening the door to better communication between all parties.
Jackie Rosen is a law student based in Salt Lake City, Utah. She is a Pupil in the David K. Watkiss Sutherland II American Inn of Court.