Caution: landlords, enter at your own risk
The recent case of Rees v Windsor-Clive has provided useful guidance on how a right of entry reserved to a landlord by a lease should be interpreted.
A farm was let on two agricultural tenancies dating back to the 1960s. One reserved a right for the landlord to enter at all reasonable times for all reasonable purposes. The other granted a right of entry for the purpose of inspecting the premises, for making roads sewers or drains, or for any other purpose connected with the landlord’s estate.
The landlord had applied for planning permission to develop an area including the farm for residential use. It wanted to enter to carry out a bat survey requiring entry to count bats during the night and leave bat detectors on the farm for several days at a time.
The tenant objected and the High Court held that some of the proposed activities were permitted, whilst others were not. The tenant appealed and the Court of Appeal has now dismissed that appeal.
It is often thought that rights of entry in a lease would be construed restrictively against the landlord, particularly where the right is non specific, as a wide interpretation would amount to a derogation from grant.
The Court of Appeal’s approach was that, whilst a right should not be construed in a way that would result in material interference with the tenant’s use and enjoyment, or frustrate the purpose of the letting, the court is not required to give the right the narrowest possible interpretation. Instead the court should interpret the clause in question in its context, part of which is that the lease gives the tenant the right to exclusive possession.
In relation to the first tenancy, if the purpose of entering was reasonable, the right must enable the landlord to do what is reasonably necessary to achieve that purpose (rather than what is convenient or desirable). If the only way of achieving a purpose is highly intrusive, that purpose might not be reasonable.
The exercise of a right to inspect, as permitted by the second tenancy, does not entitle the landlord to cause material disturbance to the tenant or material damage to the property or permit intrusive investigations lasting several days. What it does permit will be a question of fact and degree in the particular circumstances.
Following an industry wide consultation, the RICS has published a new professional statement, "Service Charges in Commercial Property".