Leases and the Landlord’s right of access - read the book, not just the cover

04 June 2020

The recent decision of the High Court in the case of Piechnik v Oxford City Council EWHC 960 (QB) has attracted attention not least because while it was held that a local authority landlord has an implied right to access to their secure tenants’ homes, this does not extend to ex Right to Buy leaseholders. Instead, with these leaseholders, the right to access is governed by the terms of the lease agreement.

But what other lessons does this decision hold for landlords? Well, let’s first consider the facts.

About 10 years ago, Oxford City Council decided to embark on a major refurbishment project of Plowman Tower, Oxford. The works were extensive and included installing insulation and cladding, replacing windows, creating an outdoor communal hub for residents and also the retrofitting of a sprinkler system and ventilation units, including in individual flats. Consequently, some of the works to be carried out, required leaseholders to give access to their landlord.

Unsurprisingly, a number of leaseholders, including Mr Piechnik (Mr P), were unhappy with the disruption likely to be caused during the works, not to mention with how unsightly a sprinkler and new ventilation unit might look inside their flats. This unhappiness was compounded when leaseholders were informed their share of the costs of these works, would be significant. Indeed, Mr P's share of the costs would be as much as £40,000.

Mr P’s response was to initially refuse to give access to his local authority landlord, arguing that as a leaseholder, he enjoyed a right of quiet enjoyment. He also argued that the major works to be carried out amounted to works of improvement, not repair, and that under his lease, he only had a duty to give access where repair works were to be carried out to his flat.

The Plowman Tower refurbishment programme also led to proceedings in the First Tier Tribunal (FTT).

A number of leaseholders, including Mr P sought to challenge whether the charges were recoverable under the terms of the lease. The FTT held that the majority of the charges (including charges relating to the retrofitting of sprinklers and ventilation units) were not recoverable as the leases did not permit recovery for ‘improvements’ as against ‘repairs', which were recoverable under the lease.

As a consequence, Mr. P was only asked to pay less than 5% of the amount originally demanded.

Given Mr. P’s unwillingness to give access, Oxford for applied for an access injunction which was compromised on the basis that Mr P agreed to give access on specified terms. After the works had been substantially completed he applied to restore the case in the county court.

There were two issues before the county court:

a) did the leases give Oxford City Council the right to enter a flat to carry out improvement works?

b) did the decision of the FTT on what elements of the Works were improvements or repairs bind the county court?

For the purpose of this note we consider ‘(a)’ only.

Oxford City Council’s covenant for access

Oxford City Council’s repairing obligation is to “…maintain the external main walls foundations and roof of the building the party walls and party floors and ceilings not included in this demise and the pipes including water drainage gas supply pipes television cable and electric supply cables (excluding meters) serving the building and used in connection with the owners lessees or occupiers of the other flats in the building main entrance passages landings staircases stores and drying areas and the lift(s) enjoyed or used by the Tenant in common with the other owners lessees or occupiers of the other flats in the building and (where applicable) the accessways paths forecourts car parking areas landscaped areas boundary fences and walls adjoining the building and being part of the Estate in good and substantial repair and condition….” (the emphasis is ours).

Therefore Oxford City Council’s covenant in Mr P's lease covered access for repairs and not improvements.

Landlord covenants for access implied by Housing Act 1985

Schedule 6 paragraph 14 of the Housing Act 1985 imposes covenants on a landlord as follows:

  1. to keep in repair the structure and exterior of the dwelling house [which would in the present context be a reference to the Premises] and of the building in which it is situated (including drains, gutters and external pipes) to make good any defect affecting that structure
  2. to keep in repair any other property over or in respect of which the tenant has rights by virtue of this Schedule
  3. to ensure, so far as practicable, that services which are to be provided by the landlord and to which the tenant is entitled (whether by himself or in common with others) are maintained to a reasonable level and to keep in repair any installation connected with the provision of those services
  4. to rebuild or reinstate the dwelling house and the building in which it is situated in the case of destruction or damage by fire, tempest, flood or any other cause against the risk of which it is normal practice to insure.

Therefore the landlord’s implied covenant implied an obligation on Oxford City Council to carry out repair works and not improvements.

These implied covenants do not apply to Housing Associations or private landlords.

A landlord’s management powers implied by section 21 Housing Act 1985

Oxford City Council also argued that the powers implied by section 21 Housing Act 1985 gave it the power to access for ‘beneficial works’, which were not covered by the lease.

Remember, these powers do not apply to Housing Associations or private landlords.

Leaseholder covenant for access

The leaseholders covenanted to “…permit the Council and its Surveyor or Agent and (as respects work in connection with the premises and any neighbouring or adjoining premises) their lessees or tenants with or without workmen and others at all reasonable times during the term on giving 2 days previous notice in writing (or in the case of emergency without notice) to enter into and upon the whole or any part of the premises for the purpose of repairing any part of the said building or any other adjoin or contiguous premises and for the purpose of making repairing maintaining supporting rebuilding cleansing lighting and keeping in order and good condition all roofs foundations sewers cables watercourses gutters wires television aerials and association [sic] apparatus (if any) and for similar purposes the Council its lessees or tenants (as the case may be) making good all damage caused to the premises..."

Therefore Mr P's covenant to grant access to Oxford City Council was more widely cast than simply for repair works.

Decision of the County Court

The County Court held, amongst other things, that:

  1. the leaseholder’s obligation to grant access was more widely cast than the landlord’s repairing obligation and thus the leaseholders, including Mr P would be obliged to grant access for works that went beyond just repairs. For example, if Oxford City Council wished to, for example, lay down new cables, or make a new structure of convenience, this would not be a breach of the leaseholder’s right to quiet enjoyment of their property
  2. Oxford City Council’s right of access is wider than this, but only insofar as it requires access for works intended to reduce the risk of death or personal injury, or to remedy a premises that was injurious to health.

Decision on appeal to the High Court

An appeal was heard by the High Court, which found that:

  1. the decision of the County Court was correct in that the leaseholder’s express obligation in the lease, to grant access, was a wider obligation than just to grant access for repairs
  2. the decision of the County Court was incorrect in that there was no wider right of access for works intended to reduce the risk of death or personal injury, or to remedy a premises that was injurious to health.

So when determining the extent of the rights and obligations owed by parties to a lease, including the issue of access, the devil is always in the detail of the lease.

Implications of this case for Landlords

Understanding the precise, express terms of a lease is vital in determining the rights a landlord has to access to a property.

Although Oxford City Council was permitted access to carry out improvement works to retrofit sprinklers and a ventilation unit (despite the fact that Oxford could ultimately not charge Mr Piechnick for those works), the right of access wasn’t open-ended and in future, would be restricted so as to give effect to the terms of the specific lease in question.

Although not dealt with by the High Court, the outcome of the decisions of the FTT, including being certain as to what major works a landlord can charge for, underline the importance of obtaining early legal advice on the interpretation of terms and conditions in leases; otherwise there is a risk a landlord will suffer irrecoverable losses.

If you have any questions or require advice, please contact contact Jonathan Hulley or Ian Rattenbury or another member of the Social Housing team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2020.