Jamal Demachkie led Lina Mattsson in the Upper Tribunal. The appeal raised various points of law. The appellant tenant, Dorrington Residential Ltd, had sublet its flat to an elderly couple, Mr and Mrs Cohen, who had Rent Act protection. The lease includes a lessee covenant “to permit the Landlord or its agents or workmen at all reasonable times (Requisite Notice having been given) to enter”. “Requisite Notice” was defined as “notice in writing to the Tenant 24 hours before any entry…”
In early 2021 the landlord, 56 Clifton Gardens, wrote to Dorrington’s managing agent requesting access to investigate a rodent infestation. Dorrington’s agent informed the landlord that Mr Cohen was vulnerable to infection and that the couple were shielding from the Covid pandemic. Access was not granted. A formal notice was served on 20 April 2021 requesting access on 21 May 2021 at noon. Although correctly served, Dorrington’s office was closed because of Covid. The notice was also sent to the former managing agent (in error, one presumes). No steps to secure access were therefore taken by Dorrington.
On 21 May 2021, Mr and Mrs Cohen did not open the door. No action was taken by 56 Clifton Gardens, nor was there any attempt to re-arrange. Instead, on 13 August 2021, 56 Clifton Gardens issued an application under section 168(4) Commonhold and Leasehold Reform Act 2002. The FTT held that Dorrington was in breach.
The Upper Tribunal confirmed that to be a valid notice to enter, a notice must identify the time at which the landlord wishes to be permitted to inspect the premises. A landlord is however not required to provide any explanation of the landlord’s reasons for wanting access. If the landlord includes a reason which is not within the scope of the covenant, then a tenant would be entitled to refuse access because the landlord would not be purporting to exercise its right. In this case, the notice was valid.
The Upper Tribunal held that the restriction a “reasonable time” was not simply concerned with the time of day at which access is sought. A request for access on Christmas Day might be just as objectionable as a request for access outside normal working hours. Further it might well not be reasonable to expect a tenant always to be available at such short notice. The longer the period of notice given the more difficult it may be for the tenant to argue that consideration of its own convenience made the suggested time an unreasonable one. However, the fact that Mr and Mrs Cohen were vulnerable to Covid and access was not urgent did not mean that a request for access during the pandemic was not at a “reasonable time”. It was question of fact and degree in each case whether the time at which access was sought was a reasonable time. FTT had not erred in its conclusion.
The Upper Tribunal held that a covenant “to permit…to enter” requires a lessee to take steps reasonably available to it to facilitate access. In the case of premises which are locked, that is likely to require the tenant to be present at the notified time with the key to allow the landlord to enter. When the premises are sublet, reasonable steps to facilitate access would involve the obvious step to contract the subtenant to request that access is given. The Tribunal recognised that steps taken may not be successful. This would not, initially at least, require a lessee to take proceedings against its sub-tenants to secure access.
The Judge noted that where no steps at all were taken, it would not be possible to suggest that the covenant has been complied with by the lessee.
The case gives very helpful guidance to landlords and tenants. If a landlord wants access, the notice will need to refer to the relevant covenant and stipulate a time, but there is no need to give any further explanation.
A tenant who receives a request for access on a time/date it is not available, is not necessarily in breach to refuse access. The tenor of the judgment is that as long as the tenant has a good reason for why the proposed time is “no reasonable”, a landlord who insists on the stipulated time will be at risk of falling foul of the “reasonable time” restriction. Each case will turn on its own facts.
The words “to permit” require the lessee to take steps reasonably available to it to facilitate access. When the premises are sublet, this will involve requesting that the subtenant give access and may involve getting an access injunction.
Article by Lina Mattsson