Common sense is a funny thing as it is always more obvious to see in hindsight.  The following case is probably a prime example of exactly that, and we highlight it here as it relates to a fairly common problem of the need to obtain access to a lessee’s flat for the purposes of inspecting.

The case referred to in this update is that of New Crane Wharf Freehold Limited and Dovener [2019] UKUT 98 (LC).

Mr Dovener is the lessee of a flat and in his lease he made a covenant with his landlord to “permit the Lessor and its agents and workmen at all reasonable times on giving not less than 48 hours notice (except in the case of an emergency) to enter the Demised Premises”.  This is standard stuff in most leases.  

The landlord wished to send contractors/surveyor into the flat to inspect and it wrote to Mr Dovener seeking access on a later date. The lessee did not confirm the appointment and thus the landlord wrote to him again seeking confirmation of the appointment to inspect. No such confirmation was forthcoming.

Importantly, nobody from the landlord attended the flat at the times set out in the letters sent to the lessee.  The landlord took the view that as the lessee had not responded, no access would be given and thus there was no point in turning up!    

Following threats made by the landlord in the final letter sent to the lessee, that if access was not provided at the time stated in the letter then proceedings would be issued in the FTT for a determination that the lessee was in breach for refusing access, the landlord promptly issued proceedings.

In considering the landlord’s application the FTT took the view that, in fact, there was no breach by the lessee.  The lessee’s failure to respond to the letters requesting access was not in itself refusal to provide access and it could not be said that actual access had been refused, even more so because as no one from the landlord had turned up at the various allotted times, there was no evidence of actual refusal.

The landlord appealed to the Upper Tribunal but met with the same outcome on this question there too.  The UT noted a number of things, of which the following are likely to be most relevant to your day to day management in circumstances where access is to be requested:-

1. Whilst, in order for a tenant to permit access there was a requirement for him to take positive steps, i.e., pass over the keys to the agent/landlord or arrange for someone to be present to allow access at the allotted time, there is no requirement on the tenant to respond prior to that allotted time to confirm if access is to be provided. His silence is perhaps unhelpful but it is certainly not refusal.

2. The letter requesting access must be clear as to when access is to be required.  In this case one of the several letters sent by the landlord required access “by 5:00pm on 23 January”. The UT considered that the use of the word ’by’ meant ‘before’ and thus the notice was invalid.

3. As no one for the landlord actually attended at the allotted times to seek access, there is no evidence of any refusal for access as there had been no actual attempt to gain access. Once again the tenant’s silence cannot be said to be a refusal.

4. The UT also considered whether, on a hypothetical basis as these were not facts relevant to the Dovener case, attendance is still required when access has been expressly refused. The answer is that sometimes it will and sometimes it may not - which is perhaps less than helpful.

Comment

The lessons from this case, which when all is considered are plain old common sense, are as follows:

A.      If access is required, then in your letter to the tenant state clearly a specific time and date for that inspection, avoiding the word “by”, and ideally confirm who is going to attend and the reason for the inspection.

B.      Turn up for the inspection at the allotted time and date.  Our advice is to do so even if the tenant has previously said that access will not be provided.  Attendance will provide two things:

• the required evidence of refusal;

• also (and we do see this quite often) when presented with people at the door, an otherwise obstructive tenant may well give access irrespective of how adamant they may have previously stated that access will be refused.

C.      Do try to obtain access on more than one occasion. We would suggest two or three visits is enough. 

If access is actually refused then record the events and instruct the client’s lawyers to advise on either an injunction or declaration application proceedings as a means of encouraging the tenant to be more cooperative.

For more information, please contact Kevin Lever at Kevin.Lever@kdllaw.com or telephone 01435 897297. 

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