“But it wasn’t my fault!” - Can you pass on to your subtenant blame for breaches of the lease?
21st October 2022
21st October 2022
In this Legal Update we look at the question of blame and responsibility.
The case in question is Dorrington Residential Limited v 56 Clifton Gardens Limited which came before the Upper Tribunal on appeal from the FTT and was decided just last week.
It is a relatively simple case/(and common) scenario. Dorrington Residential Limited (“Dorrington”) is the long leaseholder of the ground floor flat at 56 Clifton Gardens, a block of four flats in Maida Vale. The Flat is let by Dorrington to an elderly couple who occupy under a Rent Act protected tenancy. 56 Clifton Gardens Limited (“Landlord”) is the freeholder of the block and is a company whose shares are held by the four flat owners in the building, including Dorrington.
There was a genuine suspicion held by the Landlord that there was a rodent issue emanating from the ground floor flat and the Landlord wished to send in its expert to inspect and report. The lease of the flat contains a fairly standard covenant by Dorrington requiring them to permit access to the Landlord or its agents or workmen at all reasonable times (“Requisite Notice” having been given) to enter into the flat to examine its state and condition and to ascertain if there is a breach of, or non-compliance by the leaseholder with, the covenants in the lease.
“Requisite Notice” was defined further in the lease as “notice in writing to the Tenant 24 hours before any entry is made on the Demised Premises or any part thereof PROVIDED THAT in the case of emergency no notice shall be required.”
As protected tenants, the occupiers’ tenancy will be subject to the condition provided by section 3(2), Rent Act 1977 that they should afford Dorrington, their landlord, access to the flat and all reasonable facilities for executing any repairs which Dorrington is entitled to execute.
Notice of the inspection was served in writing upon Dorrington by the Landlord on 20 April 2021 for the inspection planned a month later on 21 May. Copies of the notice were served:-
- addressed to “The Tenant” at the Flat;
- at the registered office of Dorrington; and
- at the address of the (by then former) managing agent for Dorrington.
By virtue of s.196 Law of Property Act 1925 both the first and second notices were validly served upon Dorrington and Dorrington accepted that notice was in fact received. They had not, however, made any efforts to arrange for their tenants to facilitate access.
A whole month after the notice had been served, the Landlord’s contractors arrived at the flat but, despite three attempts at various times on that day, they failed to raise an answer and access was not obtained. It is not known if the tenants were present or not at the relevant time. Following this the Landlord made no attempt to re-arrange the inspection and did not take up Dorrington’s offer of assistance in obtaining access. Instead, in August 2021 they issued an application in the FTT for a determination that, in failing to provide access requested by the notice, Dorrington were in breach of the terms of their lease.
The FTT found in favour of the Landlord determining that the failure to provide access was indeed a breach of the lease. Dorrington appealed and so the matter came before the Upper Tribunal.
Dorrington’s arguments on appeal were three fold
The notice of the inspection was invalid as it had stated that the inspection was required as a result of “complaints of nuisance”.
This argument was dismissed by the UT on the basis that the lease only required that the notice state that access is required to inspect and need not spell out the specific reason for that inspection.
That the inspection did not take place at a reasonable time, it being in the midst of the lockdown during the pandemic when gatherings were banned and in light of the fact that the tenants in occupation of the flat were elderly, at risk and therefore isolating.
This point was also dismissed. The concerns as to rodent presence in the flat were subsequently borne out. Further that the lockdown did not prohibit such things as the inspection because appropriate steps could be taken to prevent risk to those in occupation.
That Dorrington was not itself in breach if its tenant did not allow access.
This argument was also dismissed on the basis that the obligation to permit access required the leaseholder, Dorrington, to take reasonable steps to facilitate access. Those steps might not have guaranteed success, and would not, initially at least, have required Dorrington to take proceedings against its sub-tenants. But where no steps had been taken at all, as in this case, it is not possible to suggest that the covenant had been complied with and thus Dorrington were in breach.
There are two very clear lessons from this case.
Firstly, it will be a rare set of circumstances where the leaseholder of a flat, which it sub-lets, is able to avoid liability for the conduct of its tenants. If you are such a leaseholder then ensure that you take reasonable steps to remedy any breach, or in this case, facilitate access. Here Dorrington had a whole month in which to put necessary measures in place but they, or perhaps their agent, did nothing/nowhere near enough. It is unclear if they were relying on the tenant just to let the Landlord in and therefore assumed all would be fine, but by taking no/insufficient steps to be clear as to what was to happen, they left themselves open to this action where the tenant did not of its own volition comply with the request.
Secondly, and unlike the position in New Crane Wharf Freehold Limited and Dovener  UKUT 98 (LC) (see our Legal Update here), the Landlord in this case served the required notice and turned up at the allotted time. Accordingly, they were able to satisfy the Tribunal that Dorrington were in breach. If you are the landlord/RTM/RMC, or acting for the landlord/RTM/RMC, in such a matter then, where possible, give more than sufficient notice in writing served at all relevant addresses and ensure that you arrive when you say you are going to. That way the leaseholder will be limited in their ability to delay the inspection or avoid culpability for non compliance.
Should you have any queries in relation to this week’s Legal Update, please feel free to contact a member of the team on 01435 897297 or firstname.lastname@example.org.
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