Landlord and tenant – Entry by landlord – Respondent tenant complaining of leaking pipes – Company secretary of appellant landlord seeking entry to inspect pipes – Respondent refusing entry to company secretary but willing to allow access by another agent of landlord – Whether appellant entitled to insist on access by company secretary – Section 168(4) of Commonhold and Leasehold Reform Act 2002 – Whether respondent in breach of terms of lease – LVT refusing to make determination to that effect – Appeal allowed in part.
The respondent held a long underlease of a flat in a block in London NW11. The lessor was the appellant company, which owned and managed the block on behalf of the leasehold owners of the individual flats. Each of the leasehold owners owned a share in the appellant and one of them, B, acted as company secretary and as a director.4
In 2008, the respondent reported a leak in his property, claiming that it was caused by a broken pipe in the communal parts of the building and was therefore the appellant’s responsibility to repair. Under the terms of his lease, he was required to co-operate with the lessor in all measures necessary for repairing and maintaining the building and “in particular… to permit the Lessor and its Surveyors or Agents… at all reasonable times to enter upon the Flat for the purpose of examining the state and condition thereof”. Although he was happy to allow access to his property by a suitably qualified agent of the appellant for inspection of the pipes and for the carrying out of any necessary repair works, he was not willing to allow entry by B, owing to a personal conflict between the two. B asserted that he needed to attend the property to trace the leak and ascertain whether it was a matter for which the appellant was responsible before he instructed external contractors to repair it.15
The appellant applied to the leasehold valuation tribunal (LVT) for a determination, under section 168(4) of the Commonhold and Leasehold Reform Act 2002, that the respondent was in breach of the terms of his lease. Such a determination would result in the appellant being entitled to serve a notice under section 146 to forfeit the lease. The appellant contended that it was entitled to entry under the terms of the lease and that it was not for the tenant to dictate the identity of the agent through which it acted in that regard. Dismissing the application, the LVT held that the respondent was not in breach of his lease since he was willing to allow access in principle, and that the appellants could not insist on access by B specifically. The appellant appealed.24
Held: The appeal was allowed in part.
The issue was simply what class of persons the respondent was required by the terms of his lease to allow access and whether B fell within that class of persons. If he did, then the respondent had to allow him entry in accordance with the terms of his lease and a failure to do so would be a breach of those terms. The relevant clause in the lease was very widely worded. So long as the person seeking access came within the definition of the “the Lessor, its Surveyor or its Agent”, then the lessee had to allow access, provided it was for the purpose of “examining the state and condition” of the flat. The respondent could not dictate who carried out the inspection. B was properly an agent of the appellant, given that he was the secretary and a director and had incorporated a management role into his position dealing with day-to-day issues, emergencies and matters such as service charges, repairs and maintenance. He fell within the class of persons to whom the lessee had to permit access and was entitled to such access for the purpose of investigating the pipes and the potential cause of the leak, which was plainly an examination of the “state and condition” of the premises.
However, it was inappropriate to make a determination that the respondent was in breach of the terms of the lease, pursuant to section 168(4) of the 2002 Act. Such a determination would permit the appellant to institute forfeiture proceedings under section 146, which would be a draconian step if the respondent would be willing, in the light of the instant decision, to allow B to inspect in accordance with the terms of the lease. If the respondent failed to provide access, on reasonable notice, within six weeks of the date of the decision, then the appellant had permission to apply for a section 168(4) determination based on evidence of such failure.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister