Windsor-Clive & Ors v Rees & Anor

A landlord’s reservation of rights in a lease is construed as part of the agreement as a whole. It should, where possible, be read consistently with the tenant’s exclusive possession and quiet enjoyment. There is no separate rule that such reservations are always construed restrictively against the landlord. Broad wording may nevertheless be limited by its textual and commercial context. If ambiguity remains after ordinary construction, a reservation operates as a re-grant and is construed against the tenant. A right of entry does not, without clear wording, authorise intrusive works such as excavations, boreholes or structures. A final quia timet injunction requires both a strong probability of future infringement and a risk of harm that immediate interim relief and damages could not adequately remedy.

The claimants, trustees and registered proprietors of Maesllech Farm, sought declarations and a permanent injunction against the defendants, the farm tenant and his son. The claim concerned rights of access reserved by the 1965 and 1968 tenancy agreements, particularly access for development-related surveys and works.

An interim injunction had been granted in September 2016 and remained in force. By trial, the defendants had not obstructed subsequent access. The court had to construe the contractual reservations, determine the activities they authorised, and decide whether final declaratory or quia timet injunctive relief should be granted.

1. Construction of reservations. A lease must be construed as a whole and by reference to its text, subject matter and relevant background at the date of contracting. Reservations should, if possible, be construed consistently with the irreducible minimum of exclusive possession and quiet enjoyment. There is no freestanding rule requiring restrictive construction against a landlord. If ordinary construction leaves genuine ambiguity, the reservation operates as a re-grant and is construed against the tenant as proferens.
2. 1965 agreement. Clause 7 authorised entry for reasonable purposes connected with the landlord-and-tenant relationship, including inspection, observation and activities assisting a possible resumption. It did not authorise damage to the land, cordoning-off, significant interference with farming, excavations, boreholes or structures. Discreet monitoring devices and reference points could fall within the clause, depending on their location and effect.
3. 1968 agreement. Clause Y authorised inspection, entry to make roads, sewers or drains on other nearby land, and entry for lawful purposes connected with the landlord’s surrounding estate. It did not itself authorise additional works on the demised land. Activities on that land were subject to the same limits as under clause 7, save for ancillary activity near a boundary.
4. Final injunction. A quia timet injunction requires a strong probability of future infringement and, if infringement occurred, harm so grave and irreparable that immediate interim relief and damages would be inadequate. The defendants’ conduct, viewed in context, did not establish a strong probability that they would obstruct access for purposes declared lawful. The second condition was also unsupported by evidence. No final injunction was granted. Declaratory relief was to be formulated, and costs and consequential matters were adjourned.

First-instance decision. The judgment records an interim injunction granted by His Honour Judge Jarman Q.C. on 29 September 2016 and continued thereafter, but no appeal decision is stated.