Can I Come In at 10.30 am on Thursday?

Sometimes you look at a court decision and think “How did they get to that?” and sometimes you think “Well that’s obviously correct, so why did they appeal?” This is one of the second type.

New Crane Wharf v Dovener is a claim by a landlord against a tenant in a residential block of flats. The landlord wanted access to the flat for some reason (which isn’t given in the report) and so made use of a pretty standard clause in the lease, which is a covenant by the Tenant:

3.08 To permit the Lessor and its agents and workmen at all reasonable times on giving not less than 48 hours notice (except in case of emergency) to enter the Demised Premises for [a number of purposes which are not in dispute – presumably inspecting for breaches of covenant or for carrying out repairs etc.]

The Landlord’s solicitor wrote on 11th September 2017 requiring T to give L access to inspect the premises on 29th September at 10.30 am. So far so good. They asked T to confirm his agreement to this by 18th September. Again a sensible request. T did not reply. Also a common scenario. But then they made their first mistake – L’s agents did not turn up on 29th September and ask to be let in. Instead they carried on writing to T.

They wrote again on 18th January 2018 insisting that T confirm that access would be given by 5pm on 23rd January, or they would make an application to the First Tier Tribunal (FTT) for a declaration that T was in breach of covenant (presumably as a prelude to serving a s146 Notice). This was their second mistake, compounded by not trying to get in on 23rd January either.

Then they made their application to the FTT who threw it out. They held that T had not refused access to L – L hadn’t tried to exercise access, and so no breach had occurred.

Now New Crane Wharf (or their representatives) had clearly got the bit between their teeth so it was off to the Upper Tribunal on appeal. L’s counsel  got off to a bad start when Judge Behrens in the UT cast considerable doubt on whether the letter of 18th January amounted to a notice under cl3.08 at all. It didn’t give notice of an inspection, as it didn’t give an appointment as such, but is merely a request to T to make an appointment, which isn’t what the lease requires.

The other letter of 11th September was however valid. However, as the lease does not require T to allow access earlier than the specified time and date, and as L did not attend at the appointment that they had fixed (and as T said that he was actually there at the time) there was no breach of the covenant and the appeal failed, as did an associated claim for costs by L. The UT did comment that if T had refused permission in advance it might have been reasonable for L not to attend the appointment, but that would depend on the facts, such as the clarity of the refusal, and other circumstances, and didn’t apply here.

So it was win-win for the unrepresented T. Not terribly glorious for the legally represented L. Perhaps a lesson that if you get something wrong it is often better to accept it and think of a work-round – in this case just serving another notice and attending their own appointment would have been quite enough to get what L wanted.

And an important decision as it is such a common clause in leases – both residential and commercial – so Landlords and their agents really need to know how it works.

PS – There is now a more detailed note on this case on the Nearly Legal blog.

 

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