Freeths Real Estate Law Blog: Access denied?

Readers may know that in order for a landlord to enter premises leased to its tenant, it will generally need to have reserved itself a specific right to do so in the lease.

 

This was the case in New Crane Wharf Freehold Limited v Dovener, where the tenant was subject to an obligation:

"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..."

 

But what does a tenant need to do (or not do) in order to 'permit' access?

 

The facts

The landlord's solicitor had written to the tenant twice requesting access to his flat for reasons that were not contested. The first letter gave the tenant 18 days' notice and invited him to confirm, within seven days, that access would be given.

 

 

The tenant responded four months later, proclaiming his privacy was being invaded, but neither confirmed nor denied access would be permitted. The landlord's solicitor sent a second letter, this time giving five days' notice, again asking the tenant to confirm access would be allowed. The tenant did not respond and the landlord did not attempt to gain access. The landlord claimed the tenant had breached its obligation by failing to confirm access would be permitted on the date specified in the notice, arguing that the word 'permit' meant the tenant was required to positively confirm the landlord would be allowed in, and that the tenant's silence or acquiescence was not enough.

The landlord said to find otherwise would have meant turning up on the off-chance of being allowed access, which could lead to considerable waste of time and cost.

 

The decision

The Judge held that the clause did not require the tenant to grant permission in advance. The date and time for testing whether the tenant was in breach was that specified in the notice. Whilst it would be commercially expedient for the tenant to confirm access would be given, it wasn't strictly necessary.

 

Practice points

Any rights of access given to a landlord are likely to be disruptive for tenants, so tenants and their advisors should ensure that they are limited accordingly. If a tenant requires key personnel to be on site, then longer periods of notice should be specified, with the landlord's entry being subject to the tenant's supervision. If the landlord here had asserted its rights and not muddied the waters by asking for confirmation that access would be permitted (something the clause did not require), the matter would never have come before the tribunal, but the facts of each individual case may not always make the situation clear-cut. Where that is the case, we are here to help.

 

If you would like more information on this topic, please contact Robert Morris in our Nottingham office on 0345 077 9655.