‘Permitting Access’: what steps must a tenant take?
Lina Mattsson and Jamal Demachkie assess what a tenant should do when faced with a request for access.
“The Tenant shall permit the Landlord access to the Premises” - virtually all leases will contain a tenant covenant along these lines, but what precisely does it mean? What steps must a tenant take when faced with a request for access? In spite of the frequency with which these questions arise, they have not been subject to a binding authority until now.
In Dorrington Residential Ltd v 56 Clifton Gardens Ltd  UKUT 266 (LC), the Upper Tribunal provided the answer. In doing so, it also dealt with questions concerning the validity of a request for access and the timing of such a request in the context of the Covid pandemic.
The tenant, Dorrington, owned the long lease of a ground floor flat in a building in Maida Vale; the freehold to the building was owned by 56 Clifton Gardens Ltd. The flat was sublet on a Rent Act protected tenancy to an elderly couple, Mr and Mrs Cohen. There had been a long history of animosity between the sub-tenants and the lessees of the other three flats within the building.
The lease included a version of the common access covenant, requiring the tenant: "to permit the Landlord or its agents or workmen at all reasonable times (Requisite Notice having been given) to enter into and upon the Demised Premises for any other purpose connected with the interest of the Landlord in the Building or the Demised Premises …"
In early 2021, a director of the landlord wrote to Dorrington’s managing agent to say that he had heard noises from Mr and Mrs Cohen's flat and suspected a rodent infestation. He requested access. Dorrington’s agent informed the director that Mr Cohen was vulnerable and shielding from the Covid pandemic but that she would ask the Cohens to allow an inspection provided that the persons attending wore full PPE. When access was not granted, a formal notice was served on 20 April 2021 requesting access at noon on 21 May 2021. Although the notice was correctly served, Dorrington’s office was closed due to the pandemic. No steps to secure access to the flat were therefore taken by Dorrington.
On 21 May 2021, the landlord attended the flat, but Mr and Mrs Cohen did not open the door. No action was taken by the landlord to obtain access on another date. Instead, it issued an application under section 168(4) of the Commonhold and Leasehold Reform Act 2002 asking the FTT to determine that there had been a breach of covenant. The FTT found that Dorrington was in breach but gave Dorrington permission to appeal.
Notice requesting access
The Upper Tribunal confirmed the notice must have identified the time the landlord wished to inspect the flat, in order to be valid. On the wording of this lease, however, the landlord was not required to provide any explanation of its reasons for access. A notice which provided no reason other than that the landlord wished to rely on the access covenant would be perfectly valid.
A reasonable time
The judge was inclined to think that a notice which did provide a reason which was not within the scope of the covenant, may invalidate the notice (because the landlord would not be purporting to exercise its right).
Most access covenants entitle the landlord to access ‘at a reasonable time’. The Upper Tribunal considered the meaning of these words and observed that a ‘reasonable time’ was not simply concerned with the time of day at which access is sought, but also the day itself. It noted: “a request for access on Christmas Day might be just as objectionable as a request for access outside normal working hours”.
The tribunal went further and held that what is ‘reasonable’ in any given case may also entail other considerations. For example, it may well not be reasonable to expect a tenant to be available at short notice; although, the longer the period of notice given, the more difficult it will be for a tenant to argue that consideration of its own convenience made the suggested time an unreasonable one.
On the facts of this case, although the request for access was not urgent, and notwithstanding the vulnerability of the occupiers, the Upper Tribunal gave short shrift to the landlord’s argument that it would never be a reasonable time to permit access during the pandemic. Determining what is reasonable involves an assessment of the facts and a consideration of the purpose for which access was required; in this case the FTT had done just this, in finding that the access had been requested at a reasonable time.
‘To permit’ access
Of greatest relevance for other leases, the Upper Tribunal considered the meaning of the common words ‘to permit access’ (which were treated as synonymous with “to permit…to enter”). The question for the tribunal was whether such a covenant imposes a positive obligation on the tenant, or whether a passive tenant can comply (provided it does not obstruct access).
The Upper Tribunal was clear in holding: “used in the context of residential premises, or other premises which would usually be expected to be kept locked, an obligation to “permit” access does not just require passive consent and plainly involves more than refraining from taking positive steps to obstruct access.”
Any other interpretation would render the access covenant worthless, and defeat its object (which, after all, is to enable a landlord to obtain access to its premises). Helpfully, the judge gave examples of the sorts of ‘reasonable’ steps which a tenant may have to take: In the case of premises which are locked, a tenant will usually be required to be present at the notified time with the key, and to make use of it to allow the landlord to enter. When the premises are sublet (and the tenant does not, therefore, have an immediate right to possession), reasonable steps may involve contacting the sub-tenant to request that access be given and, if necessary, exploring with the sub-tenant how any concerns it may have can be addressed.
Crucially, the Tribunal recognised that steps taken may not be successful (reasonable steps does not require the tenant to guarantee access). Nevertheless, the tribunal also raised the spectre of a persistent refusal on the part of the sub-tenant ultimately requiring the tenant to bring proceedings (for an injunction) compelling access.
The judge noted that where no steps at all are taken, as had been the case on the facts of this case, it would not be possible to suggest that the covenant has been complied with by the tenant.
If a landlord wants access, it must comply with any pre-condition in the lease for the giving of notice. This will usually require stipulating a time and date for access. In many leases, the landlord would not need to give any further explanation. However, if it chose to do so and the reason was not within the scope of the covenant, a tenant could justifiably refuse access.
A tenant who receives a request for access is not required to drop everything to accommodate the landlord’s request. The issue is one of ‘fact and degree’ in each case. A landlord must consider both the date and time on which access is sought. Furthermore, if a landlord provides short notice, a tenant is less likely to be in breach if it can’t accommodate the request. The question, in each case, is one of reasonableness.
Finally, the words ‘permit access’ are analogous to ‘provide access’ or ‘facilitate entry’. They require the tenant to take steps reasonably available to it to enable access. When the premises are sublet, this will involve negotiating access with the sub-tenant; it may involve obtaining an injunction. What is clear is that doing nothing in the face of a request is a real risk to any tenant.
Jamal Demachkie and Lina Mattsson are barristers at Gatehouse Chambers gatehouselaw.co.uk