Notice to access: Does a tenant need to give a landlord permission in advance to access a property?

Does a tenant need to give a landlord permission in advance to access a property?

Notice to access:  Does a tenant need to give a landlord permission in advance to access a property?

The background

New Crane Wharf Freehold v Dovener [2019] concerned a property let by the landlord to the tenant under a lease which contained the following covenant:

“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, via its solicitor, requested access to the property for a purpose specified in the lease by serving a written notice which stated that the tenant was required to give the landlord access on 29th September 2017 at 10.30am. The notice advised that the solicitor ‘awaited hearing’ from the tenant by close of business on 18th September 2017 with confirmation that access would be given.

Having received no reply, a further letter was sent in January 2018 advising of a further date and stating that the tenant had ‘failed and refused to afford the landlord access to inspect’. The landlord issued a claim in the First-tier Tribunal. No evidence was presented to show that the landlord had tried to access the property on either date. The FTT found that the tenant had not breached its covenant by not responding to the letters sent by the landlord’s solicitor, and the landlord appealed to the Upper Tribunal.

 

The decision

The Upper Tribunal dismissed the landlord’s appeal, finding in favour of the tenant. In its judgment, although the UT stated that in order to grant permission the tenant needed to have made a positive act, it assessed the issue of when the tenant needed to grant permission. The lease did not expressly state that the tenant needed to grant permission prior to the date and time specified in the landlord’s notice.

Finding that the lease did not imply any obligation on the tenant to grant permission earlier than the date the landlord specified in its notice, the UT could not therefore find any evidence to suggest that the tenant failed to grant a right of entry.

 

Advice and action for landlords

This case is a word of warning for landlords, who are advised to incorporate into their lease terms a positive obligation on tenants to grant permission a number of days’ prior to the date of requested access.

Avoiding unnecessary costs, leases should contain complete mechanisms for the requesting and granting of permission for access to ensure that landlords are able to enforce covenants wherever required.

 

The Upper Tribunal dismissed the landlord’s appeal; the lease did not expressly state that the tenant needed to grant permission prior to the date and time specified in the landlord’s notice.

 

Author

Richard Owen
Richard Owen
Associate

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