Urgent problem with building keyholder

[CaptainCorellisConcertiGrossi]

I rent a commercial unit in a building that has a lot of different workspaces. I pay a monthly licence fee to the landlord. I’ve been there several years. I’m in England.

I sometimes have valuable items in my unit and have hefty insurance that requires decent locks and the usual security precautions. My unit is unusual in that it has more than one entrance, leading to opposite sides of the building.

My business partners (x3) and I have keys for the unit but we all work at different times and don’t necessarily see each other. Additionally, the landlord employs a caretaker to look after the building. He is a keyholder for everywhere in the building but is not supposed to use his keys for access to individual units except with permission or in an emergency.

About a year and a half ago, I came in to find one of the doors closed but unlocked. I checked with the caretaker in case there’d been an emergency but he said not, so I assumed one of us had just been careless locking up. I spoke to everyone and although no one thought they’d done it, everyone said they’d be more careful in future. Over the last year, it’s happened about 4 or 5 more times, not always the same door. Eventually, in exasperation, I installed a nannycam-style CCTV camera, so I now know that the culprit is the caretaker, who props both doors open and uses my unit as a shortcut from one side of the building to the other in the early mornings before anyone else is in. Today the doors were open and the unit largely unattended for nearly an hour. When he left, he relocked one door but left the other wide open before leaving for another building. That’s how it was when we came in for work this morning. To be clear, there was no emergency, he was just wandering to and fro.

This clearly breaches my rights as a tenant and my insurance policy. Because he’s been so careless with locking up, he’s also put my stock and equipment at risk on multiple occasions (probably far more than we know about). It has to stop but I need advice about how to approach it. I haven’t seen or spoken to him as yet.

I obviously have to take it up with the landlord. However, I know they will minimise it along the lines of ‘we’ll have a word’ and ‘no harm done’. He’s quite a tricky character, and the job is idiosyncratic and would be hard to recruit for if he flounced out (though he won’t). I’m worried about getting this taken seriously and properly addressed, and also worried about how my proposed complaint will affect day-to-day matters in the building - he can, and will, make my life as difficult as possible if we get him into trouble.

What I could really use some advice on is the following:

• Am I on OK ground to have used CCTV without posting signs etc, for the sole purpose of finding out who was doing this? And would I be reasonable to keep using it for now so as to keep tabs on whether he stops when asked?

• Is this a police matter?

• Does what he’s done constitute gross misconduct? i.e. Would I be reasonable if I asked the landlord to fire him? If not, what would be reasonable? This is a small family firm (but he’s not family), probably without proper procedures, so it’s a realistic concern that nothing much will happen unless I press for it.

• Is it reasonable for him to continue being a keyholder when he’s so blatantly abused his position of trust? If he can’t continue as a keyholder he can’t do his job, so they would either have to fire him or a risk a constructive dismissal claim.

• One of my partners has suggested saying nothing for now so as to build up a picture of regular security breaches, in order that the landlord will have to take it more seriously. This is probably an accurate take on the landlord’s likely reaction, but I feel it’s probably more proper to inform them swiftly and I’m concerned to do things ‘properly’. Any thoughts about that?

Many thanks to anyone who knows anything about the relevant employment law, landlord & tenant law or criminal law that may apply. I’ve tried just to give the facts calmly, but I’m very angry and upset about this and deeply concerned about the implications for my business.

Is the CCTV inside your unit, OP - not in an external/shared corridor?

www.gov.uk/data-protection-your-business/using-cctv

I think you'll need to take some action before you can use the recordings as proof of anything! You need signs and information about how the recordings will be used. You could always send a copy (of how the recordings will be used) to the landlord and the caretaker, though when you do have it properly sorted.

Thanks for replying.

The camera is just inside my unit. It's not a formal or permanent system, just a nannycam thing, and there was no intention to monitor anyone in the normal course of their work, just a desire to get to the bottom of a mystery. Having previously asked the caretaker if he'd needed to go into the unit, I thought that if it was him he would (a) have made up an excuse and (b) not done it again, so I definitely didn't expect to end up filming him. All the partners in my business knew about the camera.

Does that make a difference? Or do you feel that I can't complain to the landlord because I shouldn't have been filming in the first place?

I'm just posting here to follow advice as I've had similar (suspected) issues with my premises.

I should add, the camera was only plugged in when the unit was empty and only started filming when it sensed movement, so in the normal course of things I didn't expect it to film anyone at all - and until today it didn't. It only filmed the caretaker because he was there illegitimately.

Just to add another dimension to this, I suspect that my insurance is invalidated if I know that a keyholder is letting themself in and regularly neglecting to lock up, and I don't do anything about it. So I'm thinking that actually I have to raise this with the landlord, no?

No criminal offences so pointless calling the police.

Contact the landlord and tell them what you know, how you know it, why you took those steps and make it very clear that you're very unhappy about it because your insurance would potentially be invalid if theft happened under these circumstances. You either have to just suck it up and keep as is or be prepared to move if the situation isn't resolved. As the caretaker isn't your employee it's not down to you to have valid cctv or to demand sacking- you tell the landlord and make it clear that however dodgy your cctv it stays and that won't be an issue for anyone (as it's inside your unit) if the conditions of the caretaker's role and therefore your insurance aren't breached again. If they are, vote with your feet and give notice to leave, possibly even sidestepping any notice agreement if you have proof the landlord is breaching your contract (via their employee accessing your unit unnecessarily and leaving it unsafe).

Trespass is a criminal offence, and the caretaker was in the Op's property without permission. He was strictly speaking not carrying out his caretaking duties as he had no right to enter the property under the circumstances described. I also think you must bring it to the landlord's attention immediately as if you don't you will probably be breaking t and c. Once the matter has been brought to the landlord's attention they would be negligent to allow the behaviour to continue. You should bring the matter to the landlord's attention, in writing, along the lines of, very concerned, invalidates insurance, security risk, negligence, breach of quiet enjoyment, criminal tresspass, police, ask how they wish to proceed.

You don't need signs up if there is no recording of the public such as customers and other visitors and no view of common areas. So basically, as long as you and your business partners are aware that your private space is possibly being recorded by yourselves you can do what you want.

Ask the caretaker again very clearly if he has accessed your unit and if so, why. Inform him one time that he must not enter your property without a valid reason.

If he pulls that shit again go straight to the landlord. That would have been twice the caretaker has been told not to unlock your doors and any thefts due to non business partner key holders leaving doors unsecured will be the landlord's liability to replace.

Or just change the locks. If there's an emergency such as fire or flood, anyone has the right to break in if need be.

Thanks, Morticia, what you said was roughly my take on it but I wasn't sure if I was missing something.

You either have to just suck it up and keep as is or be prepared to move if the situation isn't resolved.

This is my fear tbh. I don't want to leave - it will hurt me more than them - so I was hoping I might have something more concrete than the landlord's goodwill to rely on in getting this satisfactorily resolved.

It sounds like my best hope of leverage if necessary is the matter of criminal trespass. I'm really glad you mentioned that, jon, as it just seems so wrong for one party to repeatedly violate the requirments of the tenancy agreement and for the other to just have to put up or shut up. Sounds like opinions are divided as to whether a criminal act has taken place, so I'll do some reading about whether what's happened fits the bill. Thanks for the idea.

And thanks for the clarification re CCTV, Chester, and your advice. I don't think I can change the locks, though it's tempting! I was specifically told when I took over the tenancy that if I wanted to change the locks I had to provide keys to the caretaker for emergency use. I don't want to put myself in the wrong and I definitely don't want to foot the bill for broken down doors while we argue the toss about who's in the wrong.

When asking the caretaker if he has accessed your space and reminding him he shouldn’t enter, I’d mention that I’m so perplexed about the situation and concerned about the validity of my
Insurance that I was going to put up cameras to protect my property . Maybe that would be enough to stop him doing it for fear of being caught out?

@Jon65
Trespass is a criminal offence

Since when? Aggravated trespass is but not simple trespass, it’s a civil not criminal offence.

Actually, the other really important point Chester made is that if there's a burglary because of his actions, then the insurers will expect the landlord to pick up the tab. Or if they won't pay out because the insurance is invalidated, then I'd be looking at litigation on the same basis. Which probably makes civil trespass even better leverage than criminal trespass.

I think a businesslike mention of potential financial liability is probably also a better way of keeping the emotional temperature down than bandying about threats of police involvement, much as I might like to do that in the Hollywood version!

Thank you very much indeed to everyone who read my OP and took the time to think about it and post. I feel a lot clearer about how to proceed now and I really appreciate everyone's input.

The insurers may not pay out, but they wouldn't be expecting anyone else to either.

Fine to raise it with the Landlord, but be straight to the point and factual rather than coming up with excuses about why you are raising it. The unit has been left unlocked on a number of occasions, you are aware that the caretaker uses it as a shortcut before you arrive and you want this to stop immediately.

Trespass can be a criminal offence since the Criminal Justice and Public Order Act 1994, in this case though it appears it is probably not made out.

It is civil trespass though which could end up quite expensive for the landlord and his employee if the matter is not resolved once you bring it up.

Thanks, all.

@ChicCroissant I don't really understand what you mean about excuses. Can you clarify? I'm worried I'm not expressing myself well here and don't want to make the same mistake when I approach the landlord.

I suspect Chic is saying that you should just be factual: "I know this is happening, it must stop" , rather than explaining why you've decided to film your unit, which is irrelevant and not something you need to justify.

What Edge said, if you go in quoting possible legal charges that have absolutely no chance of sticking you are just diluting your message. No excuses, just straight facts.

Ah, OK, thanks. I probably expressed myself badly. I just want something up my sleeve because I'm concerned the attitude is going to be 'what's the big deal, he's not doing any harm' and that he'll just be told to make sure he locks up, rather than being told to stop going in.

I keep valuable stock in the unit and my main concern is for its safety and for the validity of my insurance. I guess I feel they will understand the implications of a potential claim against them better than an appeal to privacy and respect for the terms of our contract (even though that bothers me too).

I'm not really interested in a criminal angle except insofar as it might have been a way to focus minds on the seriousness of the situation. The invalidation of the insurance and potential for a claim against them it is a much more realistic scenario, I agree, and also more in line with my concerns.

The first issue is do you have a lease or a licence. A lease entitles you to exclusive possession of the property. A licence only gives you a right to use it in common with others ie the landlord. This is a complicated point and not just a matter of what is written on the front of the document. If you have a lease then the landlord may be in breach of his covenant to give quiet enjoyment. You would need legal advice to establish this. Erecting CCTV may require landlord consent under the terms of the lease/licence.

If you don't want to use a solicitor I suggest you speak to the landlord and, without being too confrontational, explain the issues regarding insurance and security. If he does nothing you need to take proper legal advice.

No, it's a licence agreement, @Pedders006. I have a copy but not to hand, so I can't remember the details but there was nothing in it that gave me cause for concern. I obviously need to dig it out and look but it's in my home filing so that will have to wait til the weekend

The first time I found a door unlocked and the caretaker denied any knowledge, I asked the landlord for permission to change the locks and was told that was fine provided the caretaker had a copy 'for emergency use'. So there is a paper trail that establishes an expectation of privacy in normal circumstances, not that that necessarily has an legal standing.

I can't stay there if I can't trust him not to let himself in randomly and not lock up, and they're not going to back me up. That's not unreasonable really. Any tenant would feel the same.

I think I just have to contact the landlord and see how it plays out. I hate this shit. It's such a timesink.

Could you get one of those travelling door alarms that you could set on one on the insides of the doors - the one that was most recently left unlocked?

They’re not permanent so no need to involve the landlord but - particularly if it’s the one that the caretaker enters by.

As a minimum it will give the caretaker a shock and will give you another opening to talk to the landlord. You can just say you wanted an alarm as you found it left open and you were considering going to the police. They won’t know that you know they can’t do much in the circumstances.