This article was originally published on 30/10/2019 and was reviewed and updated accordingly on the above date.
Just what is denial of access and why do you need to know?
If you find yourself unable to enter a rental property because the tenant is refusing to let you in, you will want to understand that clause in the landlord insurance policy about “denial of access”.
Basically, it provides you with compensation if you lose rental income because access to the property has been denied. This ‘denial of access’ happens when the tenant refuses to vacate after they’ve been issued with a lawful order of eviction or possession. To put it simply, the tenant is not leaving and not paying rent.
Let us explain…
If you have gone down the path of legal eviction and your tenants have ignored the order and are staying put (e.g. denying you access to your property), chances are they aren’t paying rent. This means you are not getting any rent from the un-budging tenant and you cannot get a replacement tenant in either, which equals no income. Depending on your landlord insurance policy, you may be able to claim this loss of rent. Denial of access is not a standard inclusion in most insurance policies but is standard from EBM RentCover.
TIP: Before you can make a claim on your insurance, you must have lawfully evicted the tenant (e.g. the tenant must have received termination or eviction notice.
EBM RentCover provides up to 52 weeks’ protection for loss of rent when a tenant refuses to leave the property (and the landlord's next step is to apply for a court order to evict the tenant). NOTE: this is not offered in our Householders Rental product. Ours are the only landlord policies that provide cover for up to 52 weeks of lost rent due to denial of access – an important consideration given how long it can take to get a warrant of possession hearing (we’ve had policyholders facing waits of up to six months for their case to be heard by a tribunal, a situation beyond their control but one where they continue to lose rent). A claim can be lodged for the period from when the notice to vacate was given to the time that possession of the property is returned to the landlord/agent.
What to do if… you want to evict your tenant
First, you need to lawfully evict your tenants by following the procedure set out in the relevant state or territory legislation. The process may vary slightly by state/territory, but in general you should:
- give written notice to vacate
- follow the necessary procedures and timeframes (heads up: tribunals have been known to throw out a landlord’s case just because they did not follow the right process)
- use the correct forms and have the right documentation.
What to do if… your tenants will not leave
If you have followed the process to lawfully evict your tenant and they have ignored the notice, you need to apply for a court order.
If the court/tribunal decides the tenant should leave, they will issue a warrant of possession. This order will state the date by which the tenants must vacate. Before you present your tenant with the warrant, be sure to follow your state/territory process for executing the warrant (e.g. in Victoria, the police must accompany the landlord/agent to the property to issue the warrant, while in NSW the tenant will receive a letter from NCAT advising them that a warrant for possession has been issued and that that they should expect a Sheriff’s Officer to turn up at the premises).
Dug their heels in and still not getting out? You’ll need to go back to court to obtain an eviction order (the name for this varies by jurisdiction, e.g. in WA, it is referred to as Property Seizure and Delivery Order). This enables a bailiff or sheriff to step in and evict the tenant.
Once the tenant has been removed from the property, you can submit an insurance claim for loss of rent due to denial of access.
TIP: After a warrant of possession or an eviction order is presented to the tenant, you can have the locks changed by a locksmith. Your insurance may also over the cost of replacing the locks if this is ordered by the court. EBM RentCover policyholders can claim up to $250 to replace locks after the tenant is evicted by a sheriff or bailiff.
*While we have taken care to ensure the information above is true and correct at the time of publication, changes in circumstances and legislation after the displayed date may impact the accuracy of this article. If you need us we are there, contact 1800 661 662 if you have any questions.
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