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Dorrington Residential Ltd v Clifton Gardens Ltd

Landlord and tenant – Breach of covenant – Protected tenancy – Section168(4) of Commonhold and Leasehold Reform Act 2002 – Appellant holding long lease of flat – Lease including covenant to permit landlord to enter and inspect demised premises – Flat being sublet to protected tenants – Respondent landlord attending premises after giving notice but not being allowed access – Whether appellant being in breach of covenant by appellant – Appeal dismissed

A property at 56 Clifton Gardens, Maida Vale, London was divided into four flats. The appellant owned the long lease of the ground-floor flat which was sublet on a Rent Act-protected tenancy to an elderly couple (C). The other three flats in the building were also let on long leases. The freehold belonged to the respondent, which was owned by the lessees of the four flats.

The lease included a covenant at clause 2.8.1 to permit the landlord, having given the requisite notice, to enter the demised premises to examine their state and condition.

The covenant went on to provide that the landlord might require the tenant to remedy any defects found on such an inspection and obliging the tenant then to make good the defects or, in default, to permit the landlord to enter the premises to carry out works of repair.

The respondent served notice on the appellant requesting access but when the respondent’s representatives attended they were unable to gain entry. When the respondent issued an application under section 168(4) of the Commonhold and Leasehold Reform Act 2002, the First-tier Tribunal (FTT) concluded that the appellant was in breach of covenant. The appellant appealed.

Held: The appeal was dismissed.

(1) Clause 2.8.1 did not require any particular information to be contained in a landlord’s notice. It had to be a “requisite notice” which required that it be given at least 24 hours in advance. It also had to identify the time at which the landlord wished to be permitted to inspect the premises.  But it was not required to provide any explanation of the landlord’s reasons for wanting access, and a notice which provided no reason other than that the landlord wished to rely on the covenant would be perfectly good.

The possibility that a nuisance was being caused would have been a legitimate reason for an inspection. There was no suggestion that any confusion was, in fact, caused to any of those who considered the notice. In any event, the notice was not required to give any reason for the landlord’s wish to inspect.

 (2) The relevant part of the covenant required the appellant “to permit the landlord or its agents or workmen at all reasonable times (requisite notice having been given) to enter” the demised premises. The reference to a reasonable time was clearly a restriction on the right of access which depended on the circumstances. The restriction was not simply concerned with the time of day at which access was sought. 

A reservation of a right of entry, or a covenant requiring a tenant to permit entry (which were subject to the same principles of interpretation) had to be interpreted so as to work in a sensible fashion. Whether something that the landlord wished to do on the land was permitted by the right was a question of fact and degree in each case: Windsor-Clive v Rees [2020] EWCA Civ 816; [2020] PLSCS 130; [2020] 4 WLR 105 considered.

No right of entry existed unless and until the landlord had given 24 hours’ notice requesting access at a reasonable time. What amounted to a reasonable time included the day itself and the time of day, but the restriction should not be interpreted too narrowly so as to exclude other relevant considerations. It might well not be reasonable to expect the tenant always to be available at such short notice.

(3) The period of notice specified in the definition of requisite notice was a minimum period and the landlord was not prevented from offering longer notice. The longer the period of notice given, the more difficult it might be for the tenant to argue that consideration of its own convenience made the suggested time unreasonable.

Determining what was reasonable involved an assessment of the facts and a consideration of the purpose for which access was required. Here, that purpose was to investigate a reported rodent infestation. There was no suggestion that the landlord’s concern was fanciful or unreasonable and 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 no public health restrictions were imposed on property management. It was perfectly lawful for a landlord or its managing agent to inspect premises.

(4) Once it was recognised that it was a question of fact and degree whether the time at which access was sought was reasonable, the conclusion reached by the FTT had to be respected unless it could be shown that its process of assessment was flawed. In this case, the FTT took account of all of the matters relied on by the appellant when it determined that access had been requested at a reasonable time. Its conclusion was one which was open to a reasonable tribunal.

In the context of residential premises, or other premises which would usually be expected to be kept locked, an obligation to “permit” access did not just require passive consent and plainly involved more than refraining from taking positive steps to obstruct access.  The obligation had to involve the tenant in doing what was reasonably required to facilitate access. Unless the covenant was interpreted as requiring such reasonable level of cooperation and affirmative action by the tenant as was necessary to enable the landlord to achieve its objective of obtaining access, the covenant was liable to be rendered worthless.

(5) An obligation to permit access would be breached if the tenant failed to take steps reasonably available to it to facilitate access. If a tenant chose to do nothing in the face of a request, it did so at its own risk. If the sub-tenant refused the landlord access and the tenant had done nothing to avoid that refusal, the tenant would be in breach of its obligation. The risk of the landlord not being permitted entry fell on the tenant.

Therefore, where no reasonable steps had been taken to facilitate access, as in this case, it was not possible to suggest that the covenant had been complied with. 

Jamal Demachkie and Lina Mattsson (instructed by DMH Stallard LLP) appeared for the appellant; Carl Fain and Katie Gray (instructed by Axiom DWFM Solicitors LLP) appeared for the respondent.

Eileen O’Grady, barrister

Click here to read a transcript of Dorrington Residential Ltd v Clifton Gardens Ltd

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