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29/09/2019

Freeholder rights of access to leaseholder’s premises to carry out works

Oxford City Council v Dr Piechnik, County Court at Oxford, 31 July 2019 (Unreported elsewhere, we’ve seen the judgment.)

Oxford CC is the freehold owner of a 15 storey block of flats. Some 16 of 85 flats are now held by long leaseholders on right to buy leases. Oxford had a scheme of major works which was subject to substantial dispute by the leaseholders. These included a new ventilation system, new windows, a sprinkler system, a new fire alarm system, additional walls and panels to balconies, and insulation and cladding.

While only a county court decision, this is a significant decision on what is increasingly a widespread issue for councils and their leaseholders.

In order to carry through these works, Oxford demanded access to the leaseholders’ flats. When that was refused, this claim was issued. Meanwhile, there were FTT proceedings as to whether the works, in whole or in part, amounted to improvements that were not recoverable under the leases.

The FTT held that some of the works were indeed improvements and not recoverable under the leases. The present proceedings, which had been stayed on an undertaking, were restored, to answer two preliminary issues:

Whether the lease could be construed to give Oxford a right to enter a demised flat for the purposes of carrying out works of improvement, not repair.

Whether The FTT decisions on what amounted to an improvement bound the present court.

The freeholder’s repairing obligation was to:

maintain the external main walls foundations and roof of the building the party walls and party floors and ceilings not included in this demise and the pipes including water drainage gas supply pipes television cables and electric supply cables (excluding meters) serving the building and used in common with the owners lessees or occupiers of the other flats in the building main entrance passages landings staircases stores and drying areas and the lift(s) enjoyed or used by the Tenant in common with the other owners lessees or occupiers of the other flats in the building and (where applicable) the accessways paths forecourts car parking areas landscaped areas boundary fences and walls adjoining the building and being part of the Estate in good and substantial repair and condition…(emphasis added).

In addition, Schedule 6 paragraph 14 of Housing Act 1985 imposed implied covenants on the landlord to:

(1) to keep in repair the structure and exterior of the dwelling-house [which would in the present context be a reference to the Premises] and of the building in which it is situated (including drains, gutters and external pipes) and to make good any defect affecting that structure;

(2) to keep in repair any other property over or in respect of which the tenant has rights by virtue of this Schedule;

(3) to ensure, so far as practicable, that services which are to be provided by the landlord and to which the tenant is entitled (whether by himself or in common with others) are maintained at a reasonable level and to keep in repair any installation connected with the provision of those services;

(4) to rebuild or reinstate the dwelling-house and the building in which it is situated in the case of destruction or damage by fire, tempest, flood or any other cause against the risk of which it is normal practice to insure.

The tenant’s covenants included to

…permit the Council and its Surveyor or Agent and (as respects work in connection with the premises and any neighbouring or adjoining premises) their lessees or tenants with or without workmen and others at all reasonable times during the term on giving 2 days previous notice in writing (or in case of emergency without notice) to enter into and upon the whole or any part of the premises for the purpose of repairing any part of the said building or any other adjoining or contiguous premises and for the purpose of making repairing maintaining supporting rebuilding cleansing lighting and keeping in order and good condition all roofs foundations sewers pipes cables watercourses gutters wires television aerials and associated apparatus (if any) or other structure or other conveniences belonging to or serving or used for the whole or any part of the building AND ALSO for the purpose of laying down maintaining repairing and testing drainage gas and water pipes and electric wires and cables television aerials and association [sic] apparatus (if any) and for similar purposes the Council its lessees or tenants (as the case may be) making good all damage caused to the premises. (emphasis added)

The court noted that the leaseholder’s obligation to provide access was not co-extensive with the freeholder’s repairing obligation, and was possibly rather wider.

On this basis, the court found:

46. In my judgment under the relevant Lease the Defendant would be under an obligation to permit the Claimant access for purposes which went beyond the express or implied repairing obligations. So, to use as the following hypothetical example (it being my intention to avoid making factual findings in respect of the Major Works themselves):

suppose that the Claimant wanted to lay down new cables or make a new structure or convenience which fell within the terms of paragraph 12, then it would neither be a derogation from grant, or a breach of the covenant for quiet enjoyment, for the Claimant to enforce the Tenant’s covenant to permit access.

However, Oxford wanted to go further and argued that it could undertake works and demand access for ‘beneficial’ works that were not covered by the lease clauses, or the Housing Act 1985 implied covenants. This was argued on the basis of a general power of management set out in s.21(1) Housing Act 1985:

The general management, regulation and control of a local housing authority’s houses is vested in and shall be exercised by the authority and the houses shall at all times be open to inspection by the authority.

The Circuit Judge held:

The claimant was seeking a right to enter the demised premises to carry out beneficial works which not under either the lease clauses or the Housing Act 1985 implied covenants.

The right of quiet enjoyment must be respected. But there was a limited basis for implying such a right of access.

The Circuit Judge took into account that under a secure tenancy a landlord would have an implied right of access to carry out works to avoid injury ( McAuley v Bristol CC (1992) QB 134 and Lee v Leeds CC (2002) 1 WLR 1488 ). So:

63. In my judgment there is a limited right of access which arises independently from the express terms of the Lease or the implied term derived from statute, where the Tenant’s refusal of access interferes with powers otherwise available to the Landlord and which the Landlord wishes to exercise so as to avoid the risk of death or personal injury or to remedy a state of affairs which is injurious to health. That far I am able to go, in eroding the tenant’s right to quiet enjoyment in the context of Question One, but no further. It seems to me that such limited right of access is impressed upon the grant of lease, by virtue of paragraph 2(2)(b) of Schedule 6 to the Housing Act 1985, it being a right which was available against the tenant, under or by virtue of the existing secure tenancy, for the benefit of other property.

Thus the finding was

(1) the Lease does give the Claimant the right to enter the Premises for the purpose of carrying out works of improvement which are not works of repair, because

(a) Clause 7.3 includes obligations to carry out specified works irrespective independent of whether they works of repair, as such (“the Express Duties”).

(b) the Claimant has duties to carry out works in accordance with the implied terms imposed by the Housing Act 1985 which might be wider than the repairing covenant at clause 7.3 (“the Implied Duties”);

(c) in order to facilitate the performance by the Claimant of the Express Duties and the Implied Duties there is a corresponding right of access (“the Implied Right of Access”); and

(d) in addition to the Implied Right of Access, the Tenant has covenanted in clause 3 and paragraph 12 of the Fourth Schedule to permit access for works which are not necessarily works of repair (“the Express Right of Access”);

(e) in addition to the Implied Right of Access and the Express Right of Access, the Claimant has the right to enter the Premises for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health (“the Extended Right of Access”).

(2) The Trial Judge will have to consider each of the disputed items to determine whether or not they fall within the ambit of the Implied Right of Access or the Express Right of Access or the Extended Right of Access, as formulated. I have not expressed any view.

On the second issue, there was an issue estoppel but only to the extent that any of the works had been determined to be an improvement rather than a repair, and only to the extent that the FTT was determining the recoverability of the costs of works from leaseholders.

The rest was left for full trial.

Comment

Hmm. This may be going to a higher court. I think it probably should be. While the defendant’s repair/improvement distinction may not be enough to prevail in the light of the lease clauses and the HA 1985 implied clauses, that does not give the council freeholder he ability to do whatever it wants inside and to the demise.

Do councils have an extended right to access ‘for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health’ to leasehold demised properties? And if so, what needs to be established first?

And, of course, this does not apply to private freeholders, or housing association landlords, which raises further questions.

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.

29 Comments

  1. Medusa

    Thanks Giles, Wandsworth Council made a similar application to the FTT. Do you think there will be a ruling that will settle the issue of landlord right of access to leasehold flats and recovering costs for improvement works (e.g. sprinklers) for all landlords (public, private), irrespective of what the lease says (ie, landlords have right of entry if they can prove the building is not safe and improvement works will reduce risk of injury, death)? Or will it always be on case by case basis depending on terms of each lease. Thanks.

    Reply
    • Giles Peaker

      I don’t think there will be one catch-all ruling, no.

      Reply
  2. stefan piechnik

    More background:
    50k charge brought down to 4k:
    https://www.bbc.co.uk/news/uk-england-oxfordshire-43571259

    Never ending improvements to fire safety:
    2018, two blocks:
    https://www.itv.com/news/meridian/2018-06-18/cladding-replaced-and-sprinklers-installed-in-two-oxford-tower-blocks/
    https://www.oxfordmail.co.uk/news/16289890.cladding-replacement-nears-completion-a-year-after-grenfell/

    2019, three blocks:
    https://www.jack2.com/news/oxfordshire-news/cladding-to-be-pulled-from-another-oxford-tower-block/
    https://www.bbc.co.uk/news/uk-england-oxfordshire-48940401

    That is despite multiple assurances in past that blocks are safe
    2017: https://www.oxford.gov.uk/news/article/461/council_reassures_tower_block_residents_of_fire_safety
    2019: https://www.oxfordmail.co.uk/news/17763173.hockmore-tower-among-five-oxford-blocks-cladding-removed/

    IMHO, the only tiie the blocks were actually safe, was when they had brick and concreate envelope. Since then it just tweaking a freshly introduced problem.

    Externally, the cladding simply falls off the walls:
    https://www.oxfordmail.co.uk/news/17496945.cladding-comes-off-tower-block-in-high-winds/

    Internally… well… just see the photographs:
    https://www.oxfordmail.co.uk/news/14733276.leaseholders-in-oxfords-towers-say-new-flat-interiors-appalling-after-oxford-city-councils-20m-refurb/

    Council are not necessarily known for doing things right:
    https://metro.co.uk/2011/06/22/fence-built-through-football-goalposts-is-own-goal-admits-york-council-60463/

    but if it is somewhat different if this affects one’s own home, supposedly protected by Property Act 1925, section 62, through conveyance of the lease.


    Stefan

    Reply
  3. Joe Bloggs

    Thanks for this, I am going through the same now.

    I do have a question, general not specific. What duty of care does the council owe once they enter into a leaseholder’s property? Is there a general catch all requirement or any specific duties? Does the council have to show that they will meet the duty of care, if such exists, prior to acces?

    If you have any cases pointing towards this question would be grateful.

    Reply
    • Giles Peaker

      They don’t have to show you anything, and there is no specific duty of care. Obviously anything they do has to be carried out to a reasonable standard, and if damage caused by negligence, they are liable for it.

      Reply
  4. Joe Bloggs

    I was hoping that there was a general duty of care to not only carry out the work to a reasonable standard, but also ensure that the work was carried out in such a way as to reduce problems.

    It is unfortunate that rights seem to be retrospectively protected, insofar as you have a cause of action after the fact, but no protection prior to the damage that you know will be caused.

    Reply
    • Giles Peaker

      This is not a duty of care. And I don’t understand what you mean by carried out in such a way as to reduce problems. Any disruption should be no more than is reasonably necessary.

      If you are talking about what works are to be done, that depends entirely on lease obligations and the nature of the works.

      Reply
  5. Joe Bloggs

    “Any disruption should be no more than is reasonably necessary.” – Would that not be a duty of care to carry out the work in a way that is no more disruptive than is reasonably necessary?

    That is the point I am trying to reach, I am not concerned about the actual work, I am concerned about cost cutting shortcuts being taken in relation to preparation – that will cause more disruption ‘than is reasonably necessary’ and what protections I might be able to find?

    I am just worried that this is going to be a reactive protection, oh you can sue after the fact, well I would rather they were not disruptive in my home in the first place.

    Reply
    • Giles Peaker

      No, it is not a ‘duty of care’ – that has a particular meaning for tort claims.

      There is nothing much you can do in advance.

      Reply
  6. Joe Bloggs

    From my old law school days, I remember a case of Liverpool. The one where rubbish had built up, and the tenants stopped paying rent, and the courts set out that two wrongs don’t make a right….but didn’t they set out a duty of care on the council to keep the building clean?

    Why does that duty of care stop when building work begins?

    I have to go and look it up – perhaps I can find it on Bailli and maybe it is more restrictive than the general principle that I remember from a decade ago.

    Reply
    • Giles Peaker

      Please stop using ‘duty of care’ – it doesn’t mean what you think it means.

      If you are referring to Liverpool CC v Irwin 1976, that implied an obligation on the landlord into a tenancy agreement that the common parts would be kept in repair. But it depends on what is specified in any lease. Assuming that there is such an obligation, it doesn’t end when building work begins.

      Reply
      • Joe Bloggs

        It means exactly what I think it means, what I am trying to do is find a duty of care which I can then use as a shield against the contractors actions – rather than waiting for the actions to happen, present the duty and therefore the consequences of the breach of that duty; as a means of enforcing appropriate behaviour.

        Reply
        • Giles Peaker

          No it doesn’t mean what you think it means – the Liverpool case was about an implied contractual term, not a ‘duty of care’.

          It is fairly straight forward law that if the contractors negligently cause damage to your property, then they will be liable for it. You are not going to get any more than that.

  7. Joe Bloggs

    Ok found it, so it was an implied term to take reasonable care to maintain common parts. Though I wonder whether such an implied term would exist to maintain internal property when undertaking work…but I suppose, that would fall to negligence in any event should any damage be caused.

    Reply
  8. Joe Bloggs

    Let me explain why I am looking Giles, because it is far stronger to go to a party and say, this is your duty, this is how the courts interpret it, this is how you are failing that duty, and this is the consequence of failing.

    That may cause a change of behaviour.

    Going to a party saying, well if this happens and then that happens, then maybe I can go to court and if I can prove this and if I can prove that, then perhaps…

    That is not really very persuasive, sure the outcome might be the same, in terms of compensation, but I don’t want compensation after the fact, I want to avoid the fact happening – and the only way to do that is to persuasively present realistic, understandable consequences that would warrant a change of behaviour.

    Reply
    • Giles Peaker

      As already explained, all you are going to find is a) in nuisance, a duty not to cause more disturbance than is reasonably necessary and b) in negligence, not to negligently cause damage to your property. Everything else turns on its own facts.

      Reply
  9. Joe Bloggs

    “No it doesn’t mean what you think it means – the Liverpool case was about an implied contractual term, not a ‘duty of care’.”

    I was working off a distant memory and expressing an idea, which I then corrected after finding the case myself. That has no bearing on the understanding of what a duty of care means.

    Reply
  10. Nittany1997

    How would this case be different if Oxford CC (or another freeholder), wanted to do a add additional storeys on to a building which required enhancements to the flats below (say structural or fire upgrades), would this be considered differently? The upgrades to the existing flats are for the benefit of the additional stories. In the Oxford case the improvements were needed to make the building safe, so therefore the ground for entry are different
    than if they were for the benefit of the new stories?
    Thanks

    Reply
    • Giles Peaker

      Can’t answer that – it would depend in large part on the specific leases.

      Reply
  11. Stefan Piechnik

    To me, the merit of the question is the same as in Oxford CC v Piechnik.

    Oxford CC decided to wrap the “tired” buildings in external cladding for nice external appearances as part of wider area regeneration. Windows, ventilation, sprinklers, etc. are the consequence, either directly, or thrown in for cost efficiency. So from leaseholder perspective this is no different to making additional storeys for the benefit of the landlord, and passing the related hassle and cost upon the leaseholders. under the pretense that these are all ”improvements”.

    Any comments are welcome on how to distinguish an “improvement” from an arguable disturbance to peaceful enjoyment and damage suffered only because of the landlord’s whim decision. If the lack of explicit improvement clauses in the relevant lease does not offer any protection, than hard to imagine the consequences.

    The bottom line is that not everything that costs money is necessarily an “improvement”, e.g. forcing someone to have an unwanted tattoo would normally be considered assault and mutilation, even though many willingly pay for it.

    Last, not least – at this opportunity I want to dismiss a myth that seems to be arising: The case in Oxford is NOT about sprinklers or fire safety improvements. These peripheral issues account only for ca. 5% of the total project costs — please consider that the remaining 95% of the project at £21 Million expense to the taxpayer. And in the first place, there was nothing regarding the fire safety to improve upon. The brick-and-concrete, well compartmentalised high-rises built in 1960s have impeccable safety record, Please see section “Flats built between 1962 and 1971”, pages 137-139 here:
    https://www.local.gov.uk/sites/default/files/documents/fire-safety-purpose-built-04b.pdf

    Reply
    • Giles Peaker

      No, it isn’t the same. Additional storeys are not ‘improvements’. And it will depend on lease clausees, and potentially statutory obligations such as the Party Wall Act.

      The Oxford judgment (appeal here – https://nearlylegal.co.uk/2020/05/on-front-doors-and-on-going-through-them/ ) was in part about sprinklers and fire safety improvements. It does not do you any service to say that those were merely peripheral. Whether you agree that there was any need for them or not is wholly beside the point of the judgment.

      Reply
  12. Stefan Piechnik

    I agree, similarity is in principle only. No Party Wall Act here, yet there is a fallout of complications from the additional works. E.g. I must battle now the EWS1 (External wall structure) certification, as the real unwanted outcome of the 95% of disputed works.

    With regard of the sprinklers, all I wanted to say is that the tail clearly starts to wag the dog. I wrote this because, I grow acutely aware that the legal tendency to split and “narrow” the issues demonstrates in this case the real risk of missing the 95% of the whole proverbial dog.

    Reply
  13. W11 leaseholder

    How should one interpret the court’s conclusion in the appeal?

    Would you say that in light of this ruling and given (hypothetically) an identical lease elsewhere, the landlord may not enter the leaseholder’s demise in order to carry out similar works? or is that yet to be clarified in court?

    Reply
  14. Anastasios Alexandrou

    What happens in the case where a rooftop development is being built on top of an existing building (which will make the building above 11m in height) and existing leaseholders refuse access for the installation of a sprinkler system?

    Reply
    • Giles Peaker

      We can’t give advice on people’s specific issues here, I’m afraid.

      Reply

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