Improvement clauses needing improvement

Network Homes Ltd v Harlow (2018) EWHC 3120 (Ch)

An object lesson in the need for clarity in tenancy agreements. This was an appeal from a first instance decision of HHJ Luba QC. Mr H was Network’s assured tenant of a flat in a block used for a sheltered housing scheme. Following a fire safety inspection, Network proposed to replace all the flat entrance doors. Mr H would not give access to Network to do so unless certain conditions were met. No agreement was reached and Network applied for an injunction for access.

At first instance, the court held that the tenancy agreement did not give Network a right of access to carry out works of improvement. It was common ground that the door was not out of repair and that the replacement amounted to an improvement. Network appealed.

Mr H was not represented on the appeal, but had been at first instance. 

The relevant tenancy clauses were:

Clause 2.1 is headed “Tenant’s right to occupy” and provides that:

“We will give you possession of the Property from commencement of the tenancy. We will not interfere with your right to occupy the Property unless we need to gain access in circumstances set out in clause 3.18 or legal action is commenced to demote or terminate your tenancy.”

The reference to clause 3.18 is an obvious error in the drafting of the Tenancy Agreement. As the judge noted, the Tenancy Agreement is replete with cross-references to clause 3.18, which are in fact cross-references to clause 3.19. In the clauses which follow, I have made this correction. The Tenancy Agreement is drafted in simple language, apparently with the intention that it should be comprehensible to tenants. In fact, it is a very poorly drafted document as the judge noted.

Clause 2.2 is headed “Repair of structure and exterior” and provides that the landlord will keep in good repair the structure and exterior of the Property (Flat 25). This includes various specified repairs and checks which are not relevant to this appeal.

Clause 2.2 further provides that:

“We retain the right to carry out any repair, maintenance or improvement works which are not required by this clause but which we decide to carry out to improve the Property or the building or estate in which the Property is situated.”

Clauses 3.1-3.23 set out the tenant’s obligations. Clause 3.2 is entitled “Possession”. The material part of this clause states that:

“You have the right to occupy the Property without interruption or interference from us for the duration of the tenancy (except for the obligation contained in clause [3.19] to give access to us, our agents or contractors) so long as you comply with this agreement…”

Clause 3.19 is headed “Access”. Material parts of the clause provide that:

“You must give all authorised employees and agents of Willow Housing and Care Ltd [Network Homes’ predecessor in title] reasonable access to the Property to inspect or carry out essential maintenance, inspection and repair to the Property or to the building or estate in which the Property is situated. This includes treatment programs for pest eradication, improvement work and access to repossess your home if it is to be redeveloped or disposed of.”

At first instance, the Judge had found that the express access clause at 3.19 did not include improvements, that the tenant was granted exclusive possession subject only to clause 3.19, and as there was a clause dealing with access expressly, there was no need to construe clause 2.2 as implying a right of access for improvements.

The High Court took a different view.

Network argued that the second sentence of clause 3,19 (“This includes…”) should be considered as an elucidation of the first sentence. This, properly considered, would give meaning to clause 2.2 – the right to carry out improvements – as integrated into the access rights at 3.19.

The High Court held

Exclusive possession is made subject to the terms of clause 3.19. There is no premise or assumption that clause 3.19 should not give access for improvement work as that depends upon the scope of clause 3.19. On the contrary, since clause 2.2 reserves the right to the landlord to carry out improvement works, one would expect that clause 3.19 would enable this right to be enforced, by requiring access to be given for that purpose.

In my view, it is necessary to bear in mind, when considering clause 3.19, that the Tenancy Agreement is poorly drafted. It follows that language may have been chosen infelicitously, and the court should be more willing to depart from the natural meaning of the words chosen than when considering a carefully drafted document. Furthermore, it is important to construe the document as a whole, in context, to give it commercial coherence.

There is no doubt that clause 3.19 must include a right of access for the purposes specified in the second sentence, namely pest eradication, improvement work and access to repossess the tenant’s home if it is to be redeveloped or disposed of. The clause expressly states that these purposes are included.

On a further ground of appeal that a right of access for improvements should be implied into the agreement, the High Court did not decide, in the light of the decision on the express clauses. However, it would have made sense for the commercial efficacy of the agreement to have implied such a right.

Mr H set out his objections to the door. The court noted these carefully, although not strictly relevant

Mr Harlow has impaired vision, and he has particular difficulty with his near distance sight. He is concerned that the locks on the fire doors which have been installed in the other flats at Rydal Court would be difficult for him to open and close. He would need an additional key and he is worried that, particularly if he falls ill, he will be unable to get out of his flat, or others will be unable to get in to help him. He has offered to accept Network Homes’ fire door provided that he is allowed to remove the lock and install his own lock. Mr Harlow’s son attended the hearing and supported his concerns.

In response, it was explained on behalf of Network Homes that the fire door that it proposed to install was supplied as a unit which had been selected by Savills. If the lock was removed and replaced, it would no longer be regarded as fire safe. However, having regard to Mr Harlow’s condition and concerns, Network Homes was prepared to fit an additional thumb lock, which is simple to open and close, so that Mr Harlow would not need to use lock to which he objected if he did not wish to. Furthermore, Network Homes had offered to place colours on the lock to make it more visible and to install a key safe outside the flat to enable others to gain access in the case of emergency.

Finally, the court noted that this was an object lesson in the need for clarity in drafting agreements, and also a case which would have been crying out for mediation.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All and tagged , .

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.