No breach of covenant to permit entry where no refusal communicated and no attempt to enter
New Crane Wharf Freehold Limited v Jonathan Mark Dovener  UKUT 98 (LC) – 2nd April 2019
On appeal from the First-Tier Tribunal, the Upper Tribunal considered a short point of construction relation to the breach of a covenant in a lease. It raises important points of practice where a landlord wishes to exercise its right to enter demised premises.
Clause 3.08 of the lease read as follows:
“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…”
The landlord’s solicitor wrote to the tenant on two locations requiring access. The first letter read as follows:
“… 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.” [Emphasis added.]
In response to the first letter, the tenant wrote back to ask why the landlord needed access to the flat. There was no refusal within that response.
The second letter read as follows:
“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." [Emphasis added.] There was no reply to that letter.
No evidence was before the tribunal to suggest that workmen had attended on the dates required by the landlord. The First-Tier tribunal therefore made the inference that no such attempt at access was made on either occasion.
The landlord argued that the tenant’s failure to respond to the two letters amounted to a breach of covenant. However, the First-Tier Tribunal held that the failures did not amount to such a breach. The FTT found that there was a proper purpose under the lease for which access was being sought. Pursuant to the lease provided a proper purpose was used then the tenant must permit access upon not less than 48 hours’ notice. On the facts clearly more than 48 hours notice was provided.
The FTT went on to find the fact that access was not then gained after the giving of such notice does not by itself demonstrate that the tenant failed to permit entry in breach of covenant. It further found that there was nothing contained within by the wording of the covenant to indicate that the landlord may only gain access at the first securing the tenant’s confirmation that the chosen day and time is convenient. The landlord must give 48 hours’ notice, but then having done so it may exercise the right of the stipulated time provided that it is a reasonable time. It was further found that an express agreement to the precise time was not a precondition to the exercise of the right.
The First-Tier Tribunal rejected the submission that through failing to respond positively to the landlord’s request for access to the property that the tenant was in breach of the obligation to permit entry. It would have been different if instead the tenant had refused to give entry or entry had not been facilitated, but on the facts this was not the case in the absence of either an attempt to enter or the express, advance refusal of permission to enter. (Paragraph 12)
It is of note that it was the tenant’s evidence that the landlord’s managers had a key to the flat which had often been used to gain access; generally with the tenant’s permission but not always.
On appeal to the Upper Tribunal HHJ Behrens accepted that the granting of permission required some positive act by the tenant. (Paragraph 23) He found the crucial question was to identify the time when the tenant was required to grant permission. He found there was nothing in the wording of the clause which required the tenants to grant permission before the time and date specified in the notice, and that in his judgment the natural and ordinary meaning of that clause was that the permission would be granted at that date and time. (Paragraph 17)
The judge expressed considerable doubt whether the second notice could be valid under the clause of the lease; because it required access to be given by 5pm on 23rd January 2018, which he construed as meaning before. The judge stated that if that was the case then that was not notice of when the tenant was required to permit access. However, he did not decide the point as it was not necessary for the purpose of the appeal: the first notice did require access to be given on a certain date and so a breach of the covenant could have potentially arisen from failure to comply with that notice.
The judge endorsed the conclusions of the First-Tier Tribunal and for that reason dismissed the appeal. He summarised that there was no evidence that the tenant failed to grant a right of entry at the date and time specified in the first letter requesting access. [Paragraph 25]
The judge also expressed a view that in a case where there is a clear refusal to grant access it would normally be reasonable to the landlord to rely on the refusal and in most circumstances a landlord would need not to attend. However he declined to give any such exhaustive list, and such findings are not binding because they did not from part of the decision. [Paragraph 24]
• If a landlord requests entry to the property pursuant to a covenant then it should sure it asks for permission to enter on a certain date and time and not by a certain date and time.
• There must be a positive refusal to grant access or a failure to facilitate access before a breach can be proven. Best practice will be attend to attempt to gain entry, unless there is a clear and unequivocal written refusal.
• Unless expressly provided for under the covenant there is no requirement to ensure that the date and time of entry is convenient to the tenant. The right to entry under such a covenant may be exercised provided the relevant notice has been given and provided it is exercised at a reasonable time.