Network Homes Ltd v Harlow

A tenancy agreement must be construed objectively, as a whole and in context. Poor drafting may justify greater caution before giving the words their ordinary meaning, but the court must identify the meaning conveyed to a reasonable person. An express access clause which states that access includes improvement work gives effect to a landlord’s contractual right to carry out improvements, even where the clause’s general wording refers principally to inspection, repair and maintenance. The express wording is not confined to improvements undertaken for essential maintenance. Where the agreement already provides an express right of access, it is unnecessary to imply a wider term.

Network Homes, the landlord of a sheltered housing scheme, appealed against an order of HHJ Luba QC dismissing its claim for an injunction requiring Mr Harlow, an assured tenant, to provide access to his flat so that its front door could be replaced with a certified fire door.

Network Homes accepted that it could not rely on its repairing covenants or the tenant’s corresponding access covenant, and that the replacement would be an improvement. The appeal concerned whether the tenancy agreement, properly construed, gave an express or implied right of access for improvement works.

1. Appeal allowed. The tenancy agreement gave Network Homes a right of access to replace the front door.
2. The agreement had to be construed objectively, as a whole, in its documentary, factual and commercial context. The document was poorly drafted, so the court had to allow for infelicitous language and construe it to achieve commercial coherence. The court applied the principles identified in Arnold v Britton [2015] UKSC 36 and Wood v Capita Insurance Services Ltd [2017] UKSC 24.
3. Clause 2.2 reserved to the landlord the right to carry out improvement works. Clause 3.19 stated that authorised employees and agents were to be given reasonable access and expressly included pest eradication, improvement work and access for repossession where the property was to be redeveloped or disposed of.
4. The second sentence of clause 3.19 extended the scope of the first sentence. Its reference to improvement work was not limited to improvement undertaken as part of essential maintenance. Repossession could not ordinarily be characterised as inspection, repair or essential maintenance, and its express inclusion demonstrated that the general wording was being given a wider contractual meaning.
5. This construction gave effect to the agreement as a whole. It avoided making the landlord’s express right to carry out improvements under clause 2.2 unenforceable. In the social-housing context, a reasonable person would also expect the landlord to have access to individual flats to carry out safety works benefiting residents of the building.
6. The alternative arguments concerning an implied right of access did not require determination. The express construction made implication unnecessary, although the competing arguments illustrated why the express interpretation was commercially sensible.

• High Court (Chancery Division): Appeal from an order of HHJ Luba QC made on 9 April 2018. The first-instance claim for access to replace the front door was dismissed. The appeal was allowed.