Lawbite: When is it reasonable for a landlord to enter their tenant’s demise?

• United Kingdom

• Real estate litigation

18-06-2019

Windsor-Clive v Rees [2019] EWHC 1008 (Ch)

In considering the scope of a landlord’s reserved right to enter premises let to their tenant “for all reasonable purposes”, the High Court has held that the right to do so must be connected with the parties’ rights and obligations under the relevant tenancy. It does not extend to all purposes that are reasonable merely in the landlord’s interests.

The Defendants (a father and son) had tenancies of farm land near Cardiff that was earmarked for development as a new “garden” city. Their landlord (the Claimants) sought an injunction requiring the Defendants to permit them access to carry out various surveys in connection with the proposed development.

The tenancies reserved the landlord the right to enter the farm land to “enter on any part of the Farm lands and premises at all reasonable times for all reasonable purposes”. The Defendants disputed that this right extended to a right to enter and carry out the landlord’s planned surveys.

In determining the dispute, the High Court held that:

• a right reserved to the landlord has to be considered alongside the tenant’s right to quiet enjoyment and a landlord’s obligation not to derogate from grant (“as a landlord cannot take with one hand that which he has given with the other”);
• there is an ‘irreducible minimum” implicit in the grant of a tenancy;
• a right reserved to the landlord should, to the extent possible, be construed so as to be consistent with this “irreducible minimum”;
• if it is not possible to do so, the right will be struck down as being repugnant to the lease;
• if the right reserved is ambiguous and there is more than one construction available (which are each consistent with the “irreducible minimum”), the court can resort to the contra proferentem rule (which provides that the words used are to be construed against the party who put them forward);
• as a right reserved to a landlord legally operates as a right re-granted to them by their tenant its terms are to be construed against the tenant; and
• the criterion by which the question of ‘reasonableness’ is to be judged is the relationship of landlord and tenant.

Not surprisingly, the Court further held that if the parties had intended the landlord to be reserved specific rights that would interfere with the tenant’s possession or quiet enjoyment (not otherwise expressly granted under the tenancy agreement) it would expect the tenancy agreement to provide for them rather than be asked to infer them from broadly worded terms.

Key points

• The case offers helpful guidance on the approach to the construction of a reservation in favour of a landlord.  In particular, the importance of the “irreducible minimum” to the grant of a lease, against which rights reserved to a landlord are to be construed
• A reminder that right reserved to a landlord legally operates as a re-grant of rights from the tenant (something which not many people are aware of)
• it will be difficult for a landlord to rely on broadly worded rights in support of doing something that it is not expressly authorised to do under the relevant tenancy agreement
• interestingly the court also took issue with the broad nature of the injunction sought which follows a trend of the courts applying closer scrutiny to an injunctions terms