New Crane Wharf Freehold Ltd v Dovener (LANDLORD AND TENANT – clause in lease required tenant to permit the landlord to enter) (2019) UKUT 98 (LC)

What counts as ‘refusing access’, where a landlord has a contractual right to access on notice? This rather odd Upper Tribunal case does at least provide a degree of clarification.

New Crane are the landlord. Mr Dovener the leasehold tenant. The lease provided:

“To permit the Lessor and its agents and workmen at all reasonable times on giving not less than forty eight hours notice (except in case of emergency) to enter the Demised Premises for …”

On 11 September 2017, the landlord’s solicitor wrote to Mr D saying

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

“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. Nobody attended the property on 29 September.

The landlord’s solicitor wrote again on 18 January 2018, threatening an application to the FTT and saying:

“You should be aware that clause 3.08 of the 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 agent’s 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 5.00 pm 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 5.00 pm 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. Nobody attended the property on 23 January.

The landlord then applied to the FTT for a declaration of breach of lease on the basis that the tenant not responding to these letters amounted to a breach of the covenant to give access.

The FTT disagreed, and found no breach. The covenant didn’t require the tenant’s confirmation that access would be given, and actual access had not been refused, as nobody had attempted it.

(There were apparently other proceedings for a declaration of breach of lease in respect of alterations in breach of covenant, and that declaration was, at some point, made.)

Somewhat surprisingly, not least given the other declaration of breach of lease, the landlord appealed. This, despite the observations of the Upper Tribunal judge who gave permission that:

Although permission to appeal has been granted by the F-tT on issue 2, it is not obvious that any purpose is served by this appeal or what benefit will accrue to the Appellant if the appeal is successful. The covenant against alterations having been found by the F-tT to have been breached, no obvious purpose would now be served by a determination that there had or had not been a refusal of access at some time in the past. The parties should consider whether the more economical course for them both would not now be a settlement of the whole dispute on sensible terms.

As an aside, one could, if one was so minded, reach a conclusion about the kind of landlord this landlord was on the basis of their determination to continue with this appeal. If one was so minded, what follows may offer a degree of Schadenfreude.

The Upper Tribunal held that:

1. The clause did not give the landlord a right to enter if permission had been refused, (although the tenant was under the impression that the clause gave the landlord the right of entry whether or not he gave permission, encouraged in that belief by the landlord’s letter of January 2018).
2. The letter of January 2017 was not clearly valid notice of seeking access. “It requires access to be given by 5 p.m on 23 January 2018. To my mind “by” means “before”. If so, that is not notice when the Tenant is required to permit access.”
3. The September 2017 letter was a valid notice.
4. For the tenant to permit access did require positive steps by the tenant. But there was nothing in the lease clause to require the tenant to give permission prior to the time and date specified in the notice.
5. Mr D had not refused permission in reply to the September 2017 notice. There had been no reply.
6. As nobody from the landlord sought access at the time and date specified in the letter, there had been no refusal to permit access.

On a further point raised by the landlord:

Since sending out this judgment in draft Mr Brown has asked me to express a view on whether the Landlord need attend if the Tenant refuses permission in advance. There is no suggestion that Mr Dovener did in fact refuse so the question is hypothetical and my views would necessarily not be part of the decision. If the refusal was said to be oral this could give rise to disputed questions of fact. In the case where there is a clear refusal it would normally be reasonable for the Landlord to rely on the refusal. In those circumstances the Landlord would not need to attend. I can, however, conceive of circumstances where it would not be reasonable to rely on the refusal. The nature of the refusal may not be sufficiently clear. The Tenant may change his mind before the time when access is to be exercised. If, after a refusal he recants and informs the Landlord that he will allow access the Landlord will have to attend. The crucial time is the time when the access is to be exercised. There may be other circumstances where it would not be reasonable for the Landlord to rely on the refusal. I am not attempting to give an exhaustive list.

Appeal dismissed.

Comment

The wording for section 11 (and indeed the new section 9A) Landlord and Tenant Act 1985 is slightly different – the implied covenant is that “the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair”. This is not a covenant that requires the tenant to ‘permit’ access on notice.

Nonetheless, the broader point would stand. The tenant not replying to a letter requesting access would not in itself amount to a refusal of access – there is no requirement for the tenant to confirm.