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At what point in time is permission needed for landlord’s access?

  • United Kingdom
  • Real estate litigation

13-05-2019

New Crane Wharf Freehold Ltd v Jonathan Mark Dovener [2019] UKUT 98 (LC)

A lease covenant requiring the tenant defendant, Mr Dovener, to “permit” its landlord “…at all reasonable times on giving not less than forty eight hours notice …to enter the demised premises…” was recently found not to require him to grant advance permission but permission on the date and at the time access was required. 

The landlord, New Crane, had argued that Mr Dovener’s failure to respond to their two notices requiring access to inspect amounted to a breach of covenant.  

The Upper Tribunal (“UT”) upheld the First-tier Tribunal’s (“FTT”) decision that there was no such breach.  The UT and FTT agreed that there was nothing in the covenant which indicated or implied that New Crane was required to secure Mr Dovener’s confirmation that a chosen day/time for access is convenient.  Whilst granting permission required a positive act, the time for that act was the date and time for the requested access as given in the notice.

There was further no evidence that Mr Dovener had failed to grant entry at the notified times, or indeed that New Crane had attempted to gain access having not heard from Mr Dovener in response to their notices.  Mr Dovener claimed that as New Crane’s manager had keys and had used them in the past to gain access he had assumed that is what New Crane would have done in this instance.

The UT therefore dismissed New Crane’s appeal.

Key points

  • A helpful clarification of a clause often found in similar terms in both residential and commercial leases.
  • The landlord had tried to argue in this case that the covenant required advance permission to give business efficacy to the lease, otherwise landlords or their agents would attend to inspect on the off-chance that they would be allowed access.  Whilst the UT could understand that advance permission might be commercially convenient it did not regard it as necessary to give business efficacy to the lease and as such would not imply this term into the lease.
  • The UT commented that the obligation on the Tenant was to permit the landlord to enter the premises on giving the appropriate notice. It should be read in light of the covenant for quiet possession and does not authorise entry in the absence of such permission.
  • The UT was asked to express its hypothetical view on whether a landlord should attend premises to gain access where a tenant had refused permission in advance.  The UT commented that if there is clear refusal that was not recanted before the date and time given for access, then it would be reasonable for the landlord not to attend.  Where the refusal was not clear, however, it would be unreasonable for the landlord to rely on it and therefore not to attend.

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