Taylor Clark Ltd v Mohamed (unreported, Central London County Court, 5 March 2026) (note of case here via Falcon Chambers)
This was a count court hearing, before DJ Le Bas, in which the issue of injunctions to permit the landlord to force access to the tenant’s property was again addressed. It follows on from the judgment of DJ Cridge in Southern Housing v James Emmanuel (2025) EWCC 58 (our note here) that held the Court had no jurisdiction to make such an order. In this case DJ Le Bas held that there was jurisdiction and made such an order. (As usual, it appears that the tenants was not represented and did not appear.)
The landlord argued as follows:
i) The tenant’s obligation under the tenancy agreement was contractually binding consent to the landlord having access in certain circumstances. If the landlord enters in those circumstances, the landlord is not a trespasser. An injunction for forced access, or amend under CPR70.2A to include it, was just giving effect to that binding consent.
ii) A court’s order that the tenant permit access is not an order for the tenant to give permission, but an order for the tenant to facilitate access (by opening the door).
iii) Where the court has made an order that the tenant facilitate access and they do not, they are a disobedient party within the meaning of CPR 70.2A(1) . The discretion under CPR 70.2A(2) to direct that “the act required to be done may, so far as practicable, be done by another person” is therefore available.
iv) The act here is to facilitate access – by opening or unlocking the door. ‘So far as practicable’ extended to permission antoehr person to open the door, by forcing the lack.
This does not amount to asking the Court to use the CPR to overturn existing law.
The court agreed with this and made the order.
Comment
First thing – obviously this issue needs to go to a higher court. Practically, this would probably have to mean a landlord appealing a refusal, and someone applying to intervene (given the unlikelihood of the tenant being represented). We have widely differing views in the County Court on what is, by any measure, a serious issue. This needs to be dealt with.
Secondly, I have doubts about the reasoning in this case. I am not convinced that (pace Southern v Emmanuel) the act required by the original injunction – to let the landlord in – is the same act as forced entry without permission. Forced entry includes damage to the property which is of course not part of a tenant’s access obligations.
One act is the tenant’s contractual obligation, the other act, forced entry, it seems clear to me, isn’t. If it is not, then CPR 70.2A(2) is not available. (Can anyone come up with other breach of contract situations that would allow force in seeking compliance, because I’m struggling.)
There also appears to be no engagement with the common law position in this argument, or judgment. If CPR 70.2A(2) is not available, the whole thing falls apart.
The problem is, a landlord is unlikely to want to spend the money on a High Court appeal, when presumably “the tenant and the court both refused me access” would be a defence to any breach of a statutory obligation to test or maintain something.
And who would be the intervener? Someone like Shelter? One assumes pro bono representation could be obtained.
I agree with your analysis. I am also unsure about the concept of “contractually binding consent in certain circumstances.” Even if the standard contractual ‘permit entry’ provision could be interpreted to deem consent (which I doubt), I don’t think this takes a landlord any further.
Mr Rothwell uses the concept of previously given consent to found the “underlying common law” he relies on to sidestep cases such as Southam v Smout. But as you suggest, this fails because the landlord is still asking the court to authorise the use of force to gain entry. The common law position there is clear: a court cannot do this absent express authority of the common law or Parliament. The CPR cannot override that principle.
Even if there were an express contactual term permitting the landlord to force entry in limited circumstances (ie express contractual consent for forced entry), that does not help. First, procedurally the landlord could not come to court for an order for specific performance or an injunction (ie an order compelling it as landlord to force entry). Second, again, where does the court’s jursidction come from to make a forced entry order? Third, for any social landlords/medium/large private landlords there would be arguments about unfair contract terms. Fourth, the landlord would be exposing themselves to potential criminal liability under Protection from Eviction Act/s6 Criminal Law Act 1977, as “No person can license another to commit a crime”. Given this, it is arguable that such a term is anyway unenforceable due to illegality/public policy.
As for other breaches that permit forced entry: the only one that springs to mind is forfeiture for non-payment of rent. Now abolished in residential tenancies but still available in non-residential ones. There, though, the entry must still be ‘peaceable’.
Of course, every man and his dog is concerned when a landlord doesn’t arrange regular Gas certification checks, but nobody’s bothered about the safety of the tenants ( or perhaps more importantly ) neighbouring innocent residents / passers-by ) when a Tenant defaults on their contractual obligations.
The practicalities of the law do not provide for any effective remedy.
It isn’t about whether it is desirable, it is simply about whether the law as it stands allows for it.
Its a clever/interesting argument, but my instinct is that a contractual obligation to give access to land to which the promisor otherwise has exclusive possession of is not the same thing as granting an everlasting/freestanding licence to enter. Otherwise, why would tenancies need to contain reservations and exceptions? Could well be wrong, but it doesn’t feel right.
… exactly Giles. That the law doesn’t provide for it is the telling part of where concern and attention is focused, which is the point I was making.
What doesn’t the law provide for – forced entry into someone’s home without their consent? Surely that’s not a bad thing.
Not sure why people are swayed by “but the gas might explode”. What; it’s fine for the other 364 days, just not the one booked for the gas safety check?
I’m sure your not missing the point Giles, that Tenant don’t ever, after expiry of Gas cert. – access for renewing and Landlords have to use an ineffective ( what the law doesn’t provide for, as you say ) means of attempting to secure the safety of All nearby. Its not lack of access for one day as I’m sure you know.
Surely there is higher court authority (albeit in relation to commercial leases) in the form of Hammersmith LBC v Creska (No. 2) [2000] L. & T.R. 288 (Jacob J)?
The case is cited in a footnote to Woodfall 13.074 in support of the following proposition: “Where, however, a landlord sought an injunction requiring the tenant to permit him to enter to carry out repairs, the injunction was refused where the repairs were of no utility and the landlord had suffered no loss.”
Creska (No. 2), was, however, decided on quite a particular set of facts: it concerned a heating system that had failed and after the commencement of the action, the tenant had made satisfactory proposals in respect of three of the floors in the building but declined to repair the system in the ground floor on the basis that the ground floor was used to house its mainframe computer, that the heating system on that floor was not used and that it would be disproportionately expensive and disruptive to move the mainframe computer while repairs were carried out. The tenant had, moreover, offered to carry out the repairs at the end of the term and in the meantime to place monies in a secured account to cover the cost. The landlord sought an injunction to permit it to carry out the work and argued that the Court was obliged to grant an injunction to restrain the breach of a negative contractual obligation (not to obstruct entry). Jacob J held that it was a moot point as to whether the covenant was positive (to permit entry) or negative (not to prevent entry), that the Court, in any event, had a discretion as to whether or not to grant an injunction and that the failure to repair did not cause anything more than a small injury. It is clear from the report that had the position been different an injunction would have been granted. See @ p293 penultimate paragraph:
“I therefore hold that the jurisdiction of the court to withhold an injunction where there is a violation of a right and grant damages instead, is as good in principle for negative as for positive obligations and whether contracted or not. That is not to say that the court will lightly disregard obligations freely entered into. On the contrary; where a party has entered into an obligation freely (a contractual obligation), then it will normally be just and convenient to enforce that obligation. It requires some very special circumstances for the court to say no, it will not, in the exercise of its discretion, enforce that which was undertaken by contract.”
I’ve also done a case to enforce a mortgagee’s contractual right to enter premises in certain circumstances but it was a long time ago and I don’t have the authorities to hand but I recall there being authorities on the point and in the mortgagee’s favour. The case then went to the Court of Appeal and I lost there but on the basis that the bank had agreed to give the mortgagor time and had acted before the time given had expired and the judge had been wrong on the facts to have granted an injunction, not because there wasn’t, in principle, a right to an injunction. The case was called Coutts v Stubbs but it was decided in the mid-1990s and is unreported.
Sorry I didn’t explain Coutts v Stubbs very well. It wasn’t the mortgagee’s going into possession (which obviously would have been straightforward and not material); the injunction was to permit a receiver (who under the terms of the mortgage the bank was entitled to appoint as the mortgagor’s agent) to enter.
A recent example, albeit of a receiver’s rather than the mortgagee’s obtaining an injunction against the mortgagor, is Bushby v Cronshaw [2022] EWHC 1727 (Comm). It is reported on Westlaw but not on Bailii or Lexis.