Access to a property upon giving notice

In New Crane Wharf Freehold Ltd v Dovener, the Upper Tribunal held that a tenant’s failure to respond to a solicitor’s letter requesting access to a property was not a refusal of access.

Tenancy agreements in the private rental market often include an access clause. That is a clause that permits a landlord to gain entry into a property upon giving the tenant 24/48 hours notice. In this particular case the landlord sought access to carry out an inspection which was considered a “proper purpose”under the lease. Specifically the clause stated:

“To permit the Lessor and its agents and workmen at all reasonable times on giving not less than forty eight hours notice…to enter the Demised Premises for…”

The landlord’s solicitor wrote to the tenant on 2 occasions requesting access. The first a letter dated 11 September 2017:

“..you are required to give our client access to inspect the Property on 29 September 2017 at 10.30am.

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.”

There was no reply to that letter. However, in a later email dated 17 January 2018 the tenant  stated:

“Why does your client require access to my flat? That is an invasion of privacy and prevents my quiet enjoyment of my property.”

The landlord’s second solicitor’s letter stated:

“…clause 3.08 of the Lease clearly entitles our client to access upon giving 48 hours’ notice.

….In the circumstances, we will await hearing from you by close of business on ..19 January 2018 with a copy of the plans and/or your confirmation that access will be given to the property by 5.00pm on Tuesday 23 January 2018.

If we do not……receive…your confirmation that access will be given…..we will proceed with our client’s application to the First-tier Tribunal.”

There was no reply to these two letters from the tenant and no evidence that the workmen actually attended the property. The landlord therefore proceeded with the application to the First-tier Tribunal (FtT) on the basis that the tenant’s refusal to respond to the two letters amounted to a breach of covenant. The FtF held there was no breach.

The landlord was granted permission to appeal before the Upper Tribunal (UT).

The UT considered the FtT’s reasoning:

The letters from the landlord’s solicitor clearly provided the requisite 48 hours’ notice for a proper purpose. However, the fact that access was not gained does not be itself demonstrate that the tenant failed to permit entry in breach of covenant. There was nothing in the clause which indicated that the landlord could only gain access after securing the tenant’s confirmation that the date and time was convenient. Upon giving more than 48 hours’ notice and having specified a reasonable time it was open to the landlord then to exercise the right of entry. If then on the landlord’s attempt to gain entry such entry had either been refused or not been facilitated, then it could be at that point established that entry was not being permitted. In this instance that was not the case.

The UT then decided:

  1. That the clause obliged the tenant to permit the landlord to enter the property on giving the requisite notice. The clause did not authorise entry in the absence of such permission.
  2. The tenant did not understand the nature of his obligation under the clause which is excusable in light of the solicitor’s letter stating that the “Lease clearly entitles our client to access”.
  3. Only the letter of 17 September 2018 was valid and permission to gain access would only be granted by the tenant at the date and time requested.
  4. The tenant had not replied to the letter of 17 September 2018 and had certainly not refused permission.
  5. The landlord did not seek access at the time and date specified in the letter so there had been no refusal to permit access. The commercial convenience to require permission to be granted prior to the date and time was noted but it was not necessary to give business efficacy to the lease.

Landlord’s appeal dismissed.

A tenant’s failure to reply to a letter requesting access would not normally amount to a refusal of access.

Comment

This case is worth noting. Landlords and agents routinely seek access for works and other genuine reasonsto rental properties. With short term tenancies it is very important that access is sought for a genuine reason or in an emergency. Where it is sought it cannot then be assumed that a tenant has refused simply because they do not respond. Ideally, a letter requesting access should say specifically on what basis and under what clause access is sought and should make clear that unless an explicit “no” is received it will be assumed that assent has been given. Then access should be sought at the time stated, albeit with care and with a preparedness to retreat if necessary.

It is also important to note that the Property Ombudsman’s Code of Practice for Residential Estate Agents states “If you are arranging for someone to view an occupied property, you must agree the arrangements with the occupier (including any tenants) beforehand, wherever possible.”

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