Dorrington Residential Limited v 56 Clifton Gardens Limited

A tenant’s covenant to permit a landlord to enter residential premises requires more than passive consent or an absence of obstruction. The tenant must take reasonable steps available to facilitate access, particularly where the premises are sublet.

Whether access was requested at a reasonable time is a question of fact and degree. Relevant considerations may include the day and time, the circumstances, the purpose of entry, the length of notice, the tenant’s convenience and any applicable public health restrictions. An appellate tribunal should respect the first-instance assessment unless its decision-making process was flawed.

The freeholder applied under section 168(4) of the Commonhold and Leasehold Reform Act 2002 for a determination that the long-lease tenant of a ground-floor flat had breached its covenant to permit inspection.

The flat was sublet to protected tenants. The freeholder gave approximately one month’s notice of an inspection concerning complaints and a possible rodent infestation. The tenant took no steps to arrange access. When the freeholder’s representatives attended, nobody answered the door.

The First-tier Tribunal found breaches relating to the tenant’s failure to facilitate access and rejected objections concerning the notice and the reasonableness of the time requested. The tenant appealed on those three issues.

Appeal dismissed. The First-tier Tribunal had reached the correct conclusion.

1. Notice. Clause 2.8.1 required written notice at least 24 hours before entry and identification of the intended time. It did not require the landlord to state its reasons. A reference to complaints of nuisance did not invalidate the notice or create any real ambiguity.
2. Reasonable time. Whether the requested time was reasonable was a question of fact and degree. The inquiry was not confined to the hour of the day. It could include the day itself, the circumstances of the occupier, the purpose of access, the length of notice and the tenant’s convenience. The Covid restrictions did not make every inspection unlawful or every time unreasonable. The purpose was to investigate a genuine possible rodent infestation, and property management remained lawful. The FTT had considered the relevant matters and its conclusion was open to it.
3. Meaning of permit. In residential premises normally kept locked, an obligation to permit entry required reasonable cooperation and affirmative action. It was likely to require the tenant to arrange for someone to be present with the necessary key and to use it to admit the landlord. A tenant who simply did nothing after receiving a request for access assumed the risk that a sub-tenant would refuse entry.
4. The principle in Berton v Alliance Economic Investment Co [1922] 1 KB 742, concerning reasonable steps to prevent a prohibited use, supported the analogous conclusion for a positive covenant to facilitate access. The decision in Beaufort Park v Sabahipour [2011] UKUT 436 (LC) did not establish that a failure to admit a landlord on one occasion could never constitute a breach; it was best understood as a sympathetic exercise of the Tribunal’s procedural powers.

• Upper Tribunal (Lands Chamber): appeal against the First-tier Tribunal’s determination dismissed.
• First-tier Tribunal (Property Chamber): determined that the tenant had breached the access covenant and rejected the tenant’s objections to the notice and requested time of entry.