How limited is the Landlord’s Right to Enter Flats?

The High Court decision in Piechnik v Oxford CC considers when a landlord under a Right To Buy (RTB) lease has an implied right to enter a flat. The County Court (discussed in an earlier post) had held that a right to enter could be implied (using para 2(2)(b), Schedule 6, Housing Act 1985) to exercise powers to avoid the risk of death or personal injury or to remedy a state of affairs which is injurious to health. On appeal, the High Court judge, Mrs Justice Tipples, states clearly that no such right is implied into the lease [para 63].

Post-Grenfell, the importance of this has come to the fore as landlords seek to carry out remediation measures and install fire safety features, as can be seen in Wandsworth’s stalled plan to retrofit sprinklers into around 100 high-rise blocks. Piechnik v Oxford CC was, however, a case involving a major works programme – this did include some fire upgrades (including retrofitting sprinklers) but the programme implemented Council decisions taken long before the Grenfell Tower fire and was driven by a concern to refurbish 5 ‘tired’ tower blocks built in the 1960s.

An essential requirement of leases that separates them from other consensual occupation rights is that the lease grants the right to ‘exclusive possession’. As famously explained by Lord Templeman in Street v Mountford, ‘[a] tenant armed with exclusive possession can keep out strangers and keep out the landlord unless the landlord is exercising limited rights reserved to him by the tenancy agreement to enter and view and repair.’ The import of this is illustrated in a law report from 1879, Stocker v The Planet Building Society. The tenant had an obligation to repair the property but when they failed to do so the landlord entered and did the repairs itself. The Court of Appeal stated firmly that this was not allowed: if the lease does not reserve the power to enter and the landlord does so, it ‘is a plain invasion of the rights of property. He has not more right than any stranger has.’

It is the lease that sets out the rights the landlord has to enter the property, but it is not always simple in practice to be certain of these rights, because – in addition to express rights (those written into the lease, although not necessarily easy to understand) – there may also be rights not found in the plain wording of the agreement that can be ‘implied’ into the tenancy.

Express rights of access

Most leases will contain a clause, or perhaps several different clauses, that give the landlord the right to enter for specific purposes. The lease in Piechnik v Oxford CC gives the landlord express rights of access to carry out specified works, yet surprisingly the works that can be carried out under this clause do not mirror the landlord’s obligation to maintain the building for which service charges are recoverable. These express rights of access focus on repair, maintenance, rebuilding, ‘keeping in order and good condition’ and ‘laying down’ various utilities. Several of the works carried out as part of the major works involve improvements (as determined in an earlier FTT decision), and therefore appear to go some way beyond the express rights. However, because of the way in which this case has been progressed, there is still no ruling on ‘factual issues’. This means that the court has not yet determined the extent to which the works done by OCC within Dr Piechnik’s flat go beyond the landlord’s rights of access and would have involved a trespass and interference with the covenant for quiet enjoyment.

Implied rights of access stemming from obligations to repair etc.

The landlord may also have implied rights of access. These rights are implied whenever the landlord has a duty to perform covenants; both parties accepted this in Piechnik v Oxford CC, and the judge references Woodfall: Landlord and Tenant at para 13.068. In RTB leases, there will usually be two sources of these obligations: the express leasehold covenants to repair etc., and also duties to perform implied covenants that are imposed by the Housing Act 1985 (see Sch 6, para 14: implied covenants to keep in repair the structure and exterior and other property the tenant has rights over, and to maintain services to a reasonable level).

If the landlord has a duty to do something and cannot do so without access, then implying a term is entirely consistent with the usual basis for implying terms into contracts, that is, the courts are giving effect to parties’ intentions on the basis that this implied term is necessary to give business efficacy to the contract. So, for example, in Saner v Bilton [1878] 7 Ch. D. 815, there was a covenant to ‘keep, the roof, spouts, and main walls and main timbers of the said warehouse in good repair and condition’. A beam collapsed and the focus of the case was on whether the cause was poor construction or the way that the tenant had used the warehouse for storage. In the course of resolving this issue (the judge finding that it was not the tenant’s fault), Fry J said that the covenant to put in good condition if necessary ‘carries with it an implied license to the lessor to enter upon the premises of the lessee, and to occupy them for a reasonable time to do that which he has covenanted to do, and which he has not only covenanted to do, but which he has a right to do, because he has an interest in being allowed to perform his covenant’.

What is less clear is how far this principle stretches. It was applied in Edmonton Corporation v Knowles (W. M.) & Son [1962] 60 L.G.R. 124, where the tenant of a factory lease covenanted to pay the landlord’s costs of painting the exterior every three years. From this promise to pay, the court implied an obligation to paint, and from that, a right for the landlord to enter the property. It may be that the result is better explained as resting on construction, or interpretation, of the covenant, that is, the covenant itself should be understood not simply as a covenant for the tenant to pay for any painting done but as also as imposing a duty to paint on the landlord. It’s not entirely convincing that from a simple obligation of the tenant to pay it can be said that it is necessary to imply a duty on the landlord to have such painting done ‘in order to make the contract work’, which is the test used for implying terms by Lord Clarke in Marks and Spencer pc v BNP Paribas Securities Services Trust Co (Jersey) Ltd. Indeed, the need for caution in finding a duty to perform on the landlord’s part from a covenant to pay is highlighted in Westminster (Duke) v Guild.

Implied rights of access and powers?

Will there be implied access rights when the landlord has a power to do something, but no obligation? Some RTB leases, such as that in LB of Hounslow v Waaler, give landlords a discretionary power to carry out improvements, with the ability to recover the costs from the leaseholders. If there is no express power of entry, would one be implied? If the justification for implying access rights in the ‘duty’ cases is that it is necessary to give effect to the parties’ intentions, then, by the same logic, it should also apply if the landlord only has a discretion to carry out works, otherwise the landlord would be unable to make improvements.

Questions of access to property raise difficult issues. Leaseholders may not want to let landlords in, for entirely legitimate reasons, even if the works include fire safety measures. As noted in Stocker, unless the landlord has reserved the right of access, it will be an invasion of the tenant’s property to enter. Leases will almost always contain some express rights of entry, even though finding the clause giving these rights, and understanding how widely they apply, may not be straightforward. But as the Piechnik case makes clear, there will also be implied rights to enter; implied whenever the landlord has a duty to perform a covenant for which access would be necessary, and, as argued here, quite possibly implied also if the lease contains a covenant giving the landlord the power to carry out works. In practice, these are often going to be more limited entry rights than social landlords feel they need to upgrade buildings to modern standards, or even to make them safer places to live. The only solution to wider powers is, however, legislative; it is not the role of judges to create new rights.

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How to cite this blog post (Harvard style) 

Bright, S. (2020). How limited is the Landlord’s Right to Enter Flats?. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2020/05/how-limited-landlords-right-enter-flats (Accessed [date])