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Social Housing Speed Read – A tenant’s failure to respond to a landlords request for entry does not breach right of entry covenant

One of the main causes of tension between a landlord and their tenant can be miscommunication regarding to the landlord's right to inspect and or maintain their property.

Whilst it is common practice for most leases to contain a standard clause permitting the landlord’s entry to the property on reasonable notice, the associated rights are not always clear. The following appeal case, New Crane Wharf Freehold Ltd v Dovener [2019] UKUT 98 demonstrated that a residential tenant failing to respond to a request of their landlord to permit entry does not necessarily amount to a breach of covenant.

The landlord’s solicitor wrote to the tenant on two occasions requiring access on a specific date to inspect the property in compliance with the covenant in the lease. The covenant in the lease stated: “to permit the Lessor and its agents and workmen at all reasonable times on giving not less than forty eight hours notice (except in case of emergency) to enter the Demised Premises for …”.

The tenant did not respond to either letter. Accordingly neither the landlord nor their agents attended the property as proposed. The tenant subsequently alleged that the management company had previously used keys to gain access to the property and as such he assumed this would the case in this instance. The appeal therefore focussed on whether the tenant’s failure to respond to the notice was a breach of covenant.

The Upper Tribunal, agreeing with the First-tier Tribunal, concluded that the tenant had not breached the covenant. The wording of the covenant did not express or imply a requirement to secure confirmation from the tenant before entering the property. Whilst the landlord complied with their obligation within the covenant to provide reasonable notice, a reciprocal obligation was not placed on the tenant.

The judgement did allude to a hypothetical situation whereby the tenant clearly refusing to allow the landlord reasonable entry into the property would amount to a breach of covenant, though this was not the situation faced by the Tribunal. However, these comments and the result provide further insight into the judiciary’s continued approach to rebalance the power between landlords and their tenants.

What can we learn from this judgment? Where access to a property is required, correspondence should clearly set out why it is required, the provision of the lease access which enables it, and a Landlord could record in correspondence that permission will be assumed granted in the absence of a response, and missed appointments charged for. This might alleviate any ambiguity and misunderstanding.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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