Dorrington Residential Ltd v 56 Clifton Gardens Ltd (LANDLORD AND TENANT – BREACH OF COVENANT – tenant’s covenant to permit landlord to enter and inspect a residential flat) (2022) UKUT 266 (LC)
An appeal to the Upper Tribunal of an FTT decision that the leaseholders were in breach of lease by failing to provide access to the freeholder’s agents.
The flat was occupied by sub-tenants of Dorrington Residential, the leaseholder. There had been a history of issues between the occupants and occupants of other flats. The freeholder had had reports of a potential rodent infestation in or under the flat. In April 2021, the managing agents sent a notice asking for access in May 2021, stipulating there had been ‘complaints of nuisance’. This was sent to the flat, to Dorrington’s registered office and to their (then former) letting agents.
On attending in May 2021, access was not given.
The freeholder brought an application for determination of breach of lease, which the FTT found.
The lease provided for the leaseholder
“to permit the Landlord or its agents or workmen at all reasonable times (Requisite Notice having been given) to enter into and upon the Demised Premises for any other purpose connected with the interest of the Landlord in the Building or the Demised Premises or its disposal charge or demise and in particular to examine the state and condition thereof and to ascertain that there has been and is no breach of or non-compliance by the Tenant with the covenants on the Tenant’s part herein contained …”
Requisite Notice was defined as “notice in writing to the Tenant 24 hours before any entry is made on the Demised Premises or any part thereof PROVIDED THAT in the case of emergency no notice shall be required.”
There was a further reservation of “a right for the landlord on giving Requisite Notice to enter the demised premises for the purpose of carrying out its obligations.”
Dorrington appealed on three grounds
(1) That the FTT had been wrong to find that “Requisite Notice” had been given because on a proper construction of the notice the reason for which access was said to be sought did not satisfy the conditions for entry stipulated in clause 2.8.1.
(2) That the FTT had been wrong to find that the notice had requested access at a reasonable time.
(3) That the FTT had been wrong to find that the failure of Mr and Mrs Cohen to open the door on a single occasion constituted a breach of clause 2.8.1 by the appellant.
The Upper Tribunal dispatched these pretty quickly.
There was no requirement for the Requisite Notice to give a reason for access at all. Whether or not there was any confusion about ‘nuisance’ referring to a pest infestation or some of the earlier alleged conduct of the occupants didn’t matter.
On reasonable time – access had been requested for 12 noon. But a reasonable time for access was not just the time of day, but also potentially the day – Christmas day would not be reasonable, for example. But Dorrington’s argument, based on the pandemic, would amount to saying that no time during the pandemic would be reasonable.
The proposition that during the pandemic, no time would be a reasonable time for a landlord to seek to enter the home of a vulnerable tenant is an extreme one. Determining what is reasonable involves an assessment of the facts and a consideration of the purpose for which access was required. That purpose was to investigate a reported rodent infestation. The presence of rodents was subsequently confirmed by investigations carried out by the appellant itself. There is no suggestion that the landlord’s concern was fanciful or unreasonable. On the contrary it was important for a proper investigation to be carried out. There was nothing unlawful about the proposed entry on the premises. Throughout the pandemic public health restrictions were imposed on social gatherings, but not on property management. It was perfectly lawful for a landlord or its managing agent to inspect premises. As the appellants themselves pointed out, Mr and Mrs Cohen were subsequently prepared to allow access for a pest control specialist and a gas safety inspection later in the summer of 2021.
The FTT had properly addressed this.
Lastly, Dorrington were indeed in breach because its sub-tenant had failed to give access on the one occasion. Dorrington had failed to do anything to ensure access, and its argument effectively suggested that the leaseholder would not be in breach unless it had actively taken steps to obstruct access. This was not tenable:
The obligation must involve the tenant in doing what is reasonably required to facilitate access; in the case of premises which are locked, that is likely to require the tenant to be present at the notified time with the key required to unlock the door, and to make use of it to allow the landlord to enter. Unless the covenant is interpreted as requiring such reasonable level of cooperation and affirmative action by the tenant as is necessary to enable the landlord to achieve its objective of obtaining access, the covenant would be liable to be rendered worthless.
If a tenant choses to do nothing in response to a request, it does so at its own risk.