Breach of Covenant: Whether a landlord’s notice requiring inspection of a property was reasonable (Dorrington Residential Ltd v 56 Clifton Gardens Ltd – 2022)

Where a notice was served by a landlord requiring access to a property for the purposes of inspection, was the notice defective for failing to contain sufficient information? Further, had the leaseholder facilitated access sufficiently to comply with its own obligations under the lease?

The background

In Dorrington Residential Ltd v 56 Clifton Gardens Ltd [2022], the appellant was the leaseholder of a ground floor flat in a building comprising 4 residential flats. The flat was sublet under a Rent Act 1977 protected tenancy to its occupiers. The leaseholders of the 4 flats owned the freeholder respondent company.

The appellant appointed its managing agents, who were later replaced with another company, to investigate the flat due to a suspected rodent infestation. The occupiers stated that they were not aware of such an infestation. The respondent then served notice on the leaseholder of its wish to inspect the property, stating the date and time. The leaseholder was required to “permit the Landlord or its agents or workmen at all reasonable times (Requisite Notice having been given) to enter into and upon the Demised Premises…to examine the state and condition thereof and to ascertain that there has been and is no breach of or non-compliance by the Tenant with the covenants on the Tenant’s part…”.

The notice stated that it was served “following complaints of nuisance”. The notice was delivered to the flat, a copy sent to the appellant’s registered office and a further copy sent to the appellant’s former managing agents. The respondent’s appointed agents attempted to access the flat on the stated date and time but there was no answer to the doorbell over the course of the next hour.

The respondent brought an application in the First-tier Tribunal for determination that the appellant had breached its lease covenant. The appellant defended the application, but the FTT found in favour of the respondent:

1. The notice was not defective. The wording “following complaints of nuisance” was not confusing;
2. The stated access time was not unreasonable on the grounds that the occupiers were shielding during the coronavirus pandemic; and
3. The appellant had breached its obligation to allow access to the property by failing to facilitate access to the respondent.

The appellant appealed to the Upper Tribunal.

The decision

The Upper Tribunal dismissed the appeal, finding in favour of the landlord. The lease required the appellant to take reasonable steps to permit access to the landlord.

The court considered:

1. Whether ‘Requisite Notice’ had been given

The appellant argued that the notice referred only to “complaints of nuisance”; previous references to ‘nuisance’ had been made in connection with notices pinned by the occupiers to the doors of other flats in the building, and the appellant stated that a reasonable recipient would have understood the notice in this case to refer to those actions.

The lease did not specify particular information to be contained in the notice, save that it was to be served at least 24 hours in advance and state the date and time that the landlord required access for the purposes of inspection. The notice did not need to explain the landlord’s reasons for requiring access; simply stating that there was a possible nuisance was sufficient, and the need to investigate a possible rodent infestation had previously been discussed. The notice served was valid and met the requirements of the lease terms.

2. Whether the notice had requested access at a reasonable time

The appellant argued that the FTT had not considered relevant factors when it concluded that the notice requested access at a reasonable time. Factors stated by the appellant included that an urgent inspection was not necessary, that a possible rodent infestation could be investigated in a different way, that the occupiers were elderly and vulnerable in a period when England was subject to a national lockdown as a result of the pandemic, and that public health directions prevented social gatherings of more than two households.

The UT found that the FTT had considered all relevant factors in reaching its conclusion, finding that “even taking the pandemic into account, access had been requested at a reasonable time”. The landlord gave a month’s notice in this case for access to inspect the property to conduct a proper investigation; the pandemic restrictions on social gatherings did not impact the proper conduct of property management. Reasonable notice had been given of the landlord’s intention to access and inspect the premises.

3. Whether the appellant had breached its covenants as a result of its sub-tenants not permitting access

The appellant argued that its obligation to permit access required no affirmative action but was merely an obligation not to do anything which prevented or hindered access. The appellant stated that failing to let the landlord in on one occasion was insufficient to amount to a breach of covenant.

The UT found that a requirement to ‘permit access’ obliged the appellant to take reasonable steps to facilitate access for the landlord. Not taking action to prevent or hinder access was insufficient. As the door was locked, the appellant was obliged to require the occupiers to be present at the stated time and to unlock the door to allow the landlord in. Such steps were reasonably available to the appellant, which could have made contact with the occupiers in order to address any concerns. Where the occupiers had refused access and the appellant had not taken any steps to avoid such refusal of access despite being aware that the occupiers had concerns, the appellant was in breach of its covenant.

Advice and action for landlords

This decision is reassuring for landlords and managing agents, providing useful guidance on circumstances where a tenant or occupier prevents access for the purposes of inspection.

The lease obligations in this case were clear, giving the landlord the right to request access without requiring it to detail the specific purpose of an inspection; provided notice given is sufficient, it is entirely reasonable – and necessary – that rights to inspect are reserved to a landlord.

The requirement of the tenant to permit access required more than simply not preventing or hindering access. The tenant was required to take reasonable steps necessary to permit the landlord to enter for the purposes of its inspection. Landlords will take comfort from this point in particular; tenants are unable to adopt a passive stance where action such as unlocking a door is required.