When is an access covenant breached?

Residential leases contain a raft of covenants which a leaseholder is obliged to adhere to.

Although the wording might differ from one lease to the next, *most* leases contain a covenant that requires a leaseholder to permit the landlord (or management company) to enter the flat for certain purposes.

Where a landlord seeks access, but does not receive advance permission from the leaseholder, is that leaseholder in breach of their lease? This was the short issue under consideration by the Upper Tribunal (Lands Chamber) in New Crane Wharf Freehold Limited v Dovener [2019] UKUT 0098 (LC).

 

Terms of the lease

The lease in Dovener contained a covenant by the leaseholder requiring him:

“To permit the lessor and its agents and workmen at all reasonable times and on giving not less than 48 hours’ notice (except in the case of emergency) to enter the demised premises for…”.

The lease then set out a number of purposes.

This kind of covenant is not uncommon, and is found in most residential leases.

 

Relevant facts

The landlord’s solicitor wrote to the leaseholder requiring access.

Their first letter (of 11 September 2017) included:

“… You are required to give our client access to inspect the property on 29 September 2017 at 10.30am.

“We therefore await hearing from you by close of business on 18 September 2017… with your confirmation that access will be given on 29 September 2017”.

There was no reply to that letter. However, an e-mail from the leaseholder dated 17 January 2018 included:

“Why does your client require access to my flat? That is an invasion of privacy and prevents my quiet enjoyment of my property”.

On 18 January 2018, the landlord’s solicitor made the second request, which included:

“You should be aware that [your] lease clearly entitles our client to access upon giving 48 hours’ notice. Notice was given to you as far back as 11 September 2017 but you have failed and refused to afford our client or its agents access to inspect the property.

“In the circumstances, we will await hearing from you by close of business on Friday 19 January 2018 with a copy of the plans and/or your confirmation that access will be given to the property by 5.00pm on Tuesday 23 January 2018.

“If we do not, by close of business on Friday 19 January 2018, receive the plans and/or your confirmation that access will be given by 5.00pm on Tuesday 23 January 2018 then we will proceed with our client’s application to the First Tier Tribunal”.

There was no reply to that letter.

Unfortunately for the landlord, there was no evidence before the Tribunal that the landlord or its agents or workmen attended on either of the dates specified in their letters. Accordingly, the inference was that there was no actual attempt to gain access on either occasion.

The landlord argued that the leaseholder’s failure to respond to the two letters amounted to a breach of covenant. The FTT disagreed, and held that there was no breach.

 

Reasoning of the FTT

The FTT was satisfied on the facts that access was being sought for a proper purpose.

However, the FTT felt that the fact that access was not then gained did not by itself demonstrate that the leaseholder failed to permit entry in breach of covenant. The covenant was not worded in such a way to indicate that the landlord could only gain access after first securing the leaseholder’s confirmation that the chosen date and time was convenient.

Although the FTT recognised that the landlord may well decide “for the sake of good relations and practicality” that it was prudent to obtain the leaseholder’s express agreement to the precise time, it did not follow that this was a precondition to the exercise of the right on the part of the landlord.

As the FTT put it:

“If on the [landlord] attempting to gain entry such entry had either been refused or had not been facilitated then it could at that point have been established that entry was not being permitted, but in our view this is not the case in the absence of either an attempt to enter or an express refusal or permission to enter in advance”.

The landlord appealed.

 

Decision of the Upper Tribunal

The crucial question, in the view of the Upper Tribunal, is to identify the time when the leaseholder is required to grant permission.

There was nothing in the wording of the covenant that required the leaseholder to grant permission before the date and time specified in the notice. The natural and ordinary meaning of the clause is that permission will be granted at that date and time.

The crucial time, therefore, is the time when the access is to be exercised.

There was no evidence that the leaseholder failed to grant a right of entry at the date and time specified in the letter of 17 September. Accordingly, the leaseholder was not found to have breached this covenant.

 

Commentary

Whilst the Upper Tribunal recognised that it would be “commercially convenient” to require permission to be granted earlier than the date and time in the notice, this is not how the covenant is worded.

There is nothing in the wording of the clause which required the leaseholder to grant permission before the date and time specified in the notice.

Accordingly, where landlords are seeking to access a flat, care should be taken about the wording of any notice.

It seems too that landlords may have to go to the cost and expense of attending a flat on the date and time specified in their notice, even where there’s been no positive response from the leaseholder.

 

 

Cassandra Zanelli

Widely recognised for her expertise in the industry, and listed among the 100 most influential people in residential leasehold management, Cass heads the team at PM Legal Services. Passionate about education and sharing knowledge, she's a regular speaker at conferences, events and seminars, having worked with leading organisations in the property management industry.

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