The case of Dorrington Residential Ltd v 56 Clifton Gardens Ltd [2022] UKUT 266 (LC); [2022] PLSCS 166 serves as a useful reminder to tenants of the need to comply with their access covenant.
The respondent was the freeholder owner of 56 Clifton Gardens, Maida Vale, London W9. The building comprised four flats, of which the appellant was the long lessee of the ground-floor flat. The ground-floor flat was sublet under a 1977 Rent Act protected tenancy to Mr and Mrs Cohen.
The appellant covenanted under clause 2.8.1 of the lease to provide the respondent landlord access “at all reasonable times (requisite notice having been given)… [for any] purpose connected with the interest of the landlord in the building or the demised premises… to examine the state and condition [of the flat]”. “Requisite notice” was defined as 24 hours’ written notice given in advance, identifying the date and time which the landlord required access to inspect.
In early 2021, the managing agent of the building received a complaint from a neighbour in the building that the ground-floor flat had a suspected rodent infestation. At the material time, England was under Covid-19 restrictions. Mr and Mrs Cohen denied knowledge of any rodent infestation when questioned by the managing agent. Additionally, they informed the agent that they were shielding due to the Covid-19 pandemic.
In April 2021, the respondent gave notice under clause 2.8.1 to inspect the ground-floor flat on 21 May 2021 at noon. The notice explained that access was being requested “following complaints of nuisance”. Despite the appellant being aware of the request for access, it took no steps to arrange access to the ground-floor flat. When the respondent’s agent attempted to gain access on the notified day, there was no response from Mr and Mrs Cohen.
In August 2021, the respondent issued an application under section 168(4) of the Commonhold and Leasehold Reform Act 2002 asking the First-tier Tribunal to determine whether there had been a breach of covenant. The FTT determined there had been.
On appeal to the Upper Tribunal (Lands Chamber), the appellant argued that the FTT had erred on three grounds. Firstly, the FTT was wrong to find that “requisite notice” had been given. The appellant argued that the reason given for access being required – namely, complaints of nuisance – did not satisfy the conditions for entry stipulated in clause 2.8.1. The UT gave short shrift to this ground of appeal. It found that clause 2.8.1 did not require the landlord to give any explanation or reason as to why access was being sought to inspect the premises.
Secondly, the appellant argued the FTT was wrong to find the respondent had requested access at a reasonable time. In determining what amounts to a reasonable time, the UT found that regard must be had not only to the day and time of day access was requested, but also any other relevant considerations. In the present case, the UT found that the FTT had not failed to take into consideration other relevant factors. The appellant’s reliance on the Covid-19 restrictions in force at the time was not a relevant consideration because those restrictions did not curb a landlord from carrying out its property management functions.
The UT also dismissed the respondent’s final ground of appeal that a failure on the part of the appellant to take positive steps to “permit” access did not breach clause 2.8.1. The UT determined that an obligation to “permit” access involved the tenant doing what was reasonably required to facilitate access. In the case of premises that were locked, it required the tenant to be available at the designated time with a key to unlock the door. Passive consent and refraining from taking positive steps to obstruct access were not the only steps a tenant was required to take.
Elizabeth Dwomoh is a barrister at Lamb Chambers
