MSA Properties Limited v The Drapery Northampton Ltd

A landlord’s choice of method for discharging a repairing covenant must be reasonable and must take account of the tenant’s right to quiet enjoyment. Neither covenant automatically prevails. The assessment is fact-sensitive and includes the lease terms, the extent of disrepair, the risks and advantages of competing methods, and their effect on the tenant. A method requiring temporary vacation may be reasonable where supported by appropriate professional evidence and justified by materially safer execution. The tenant’s consent is unnecessary, but substantial interference requires correspondingly weighty justification. Rights of entry remain subject to an obligation to cause as little damage and disturbance as reasonably practicable. The duration and extent of access must therefore be proportionate to the works required.

The claimant was the freehold owner of a building. The defendant held a 999-year lease of its first to fourth floors, containing 25 flats. Seven structural joists below two flats had become rotten after a loading-bay ceiling collapsed. The claimant sought specific performance and injunctive relief requiring access to inspect the flats and to undertake structural repairs, including temporary vacation of the flats.

The parties disputed whether the joists required replacement, whether the works could be undertaken from below, and the extent of access and possession required. The defendant relied on the lease’s quiet-enjoyment covenant and counterclaimed for lost rental income, alleging delay in reinstating fire-retardant ceiling panels had caused a fire-service prohibition notice. The central issues concerned the reasonable method of repair, the landlord’s contractual right of entry, and the defendant’s alleged loss.

1. The court found that six of the seven rotten joists required complete replacement. Localised repairs were insufficient on the expert evidence. The issue whether the landlord could choose replacement where repair would have sufficed therefore did not arise.

2. The repairing covenant and the covenant for quiet enjoyment had to be reconciled. Neither prevailed automatically. The landlord was entitled in principle to choose the method of repair, but the choice had to be reasonable and had to take account of the tenant’s interests. The lease terms, the extent of disrepair, the risks and advantages of each method, and the effect on occupation were relevant.

3. McGreal v Wake (1984) HLR 107 concerned the scope of an implied licence to enter for identified works. It did not establish a general rule that a landlord could select a method requiring vacation only where that method was the sole possible method. The proposed works had to be assessed at the anterior stage of choosing the appropriate repair method.

4. On the evidence, the works had to be undertaken from above. Proceeding from below created materially greater risks, including risks associated with structural support, services, fire protection and working without adequate visibility. That approach was inconsistent with the risk-avoidance principles reflected in the Construction (Design and Management) Regulations 2015. The claimant’s choice was therefore reasonable and reasonably necessary, notwithstanding the disruption caused.

5. The express right of entry was generous but qualified by the requirement to cause as little damage and disturbance as reasonably practicable. Six weeks’ exclusive possession was sufficient for the works. A two-day period of exclusive possession for preliminary inspection was unsupported and disproportionate, although access for inspection itself was ordered.

6. The claimant had breached its repairing obligation by failing to reinstate the fire-retardant ceiling covering within a reasonable time after July 2023. The defendant’s counterclaim nevertheless failed because the fact and extent of rental loss were not proved by sufficient evidence.