Do Landlords Have a Right to Enter Flats?
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Given the attention to fire safety issues post-Grenfell, and the desire of some social housing landlords to retrofit sprinklers, it is crucial to know what rights landlords have to enter leasehold flats. Access is, for example, being contested in Wandsworth where the council wishes to retrofit sprinklers to 99 high-rise blocks, as discussed here.
A recent County Court case from Oxford, Oxford CC v Piechnik, has held that the local authority landlord has a limited implied right to enter that goes beyond both the express terms of the lease and any terms implied into Right to Buy (RTB) leases by the Housing Act 1985 (HA1985). What is at issue in this case is whether the landlord, Oxford City Council (OCC), had the right to enter the defendant’s flat and carry out various works against his wishes or whether such entry would be a trespass and a breach of the duty of quiet enjoyment. This decision involves two preliminary issues, and is also discussed in the nearlylegal blog. Factual issues await a trial hearing.
The case arose out of the refurbishment of Plowman Tower, Oxford. This was part of a major refurbishment project being carried out to 5 tower blocks (a detailed study of the project that focusses on the energy upgrades is available here). Across the project, the work involved installing insulation and cladding, putting in a sprinkler system and ventilation units, replacing windows, creating ‘winter gardens’ and other miscellaneous works. Unrelated to this access decision, three of the towers have since had to have the new cladding replaced as fire safety issues arose post-Grenfell.
Around one-fifth of the 85 flats in Plowman Tower are leasehold, the remainder being directly rented from OCC. Many leaseholders were unhappy with the disruption caused during the works and with how unsightly the internal works were, as mentioned in an earlier post. The issues are, perhaps, particularly acute for leaseholders who regard themselves as home-owners and associate ownership with the ability to control their home environment. The defendant had been unwilling to grant access. OCC applied for an injunction which was compromised on the giving of cross-undertakings, with the defendant agreeing to access on specified terms. After the works had been substantially completed the defendant applied to restore the case.
The refurbishment programme had also led to various proceedings before the First Tier Tribunal (Property Chamber), essentially addressing the question of whether the service charges levied were payable under the terms of the RTB leases. Ultimately, the FTT held that the majority of the charges were not recoverable as the leases did not permit recovery for ‘improvements’, which most of the works were held to be (as against ‘repairs).
In relation to the issue of access, the lease did have specific obligations requiring the tenant to permit access which were, perhaps unusually, significantly wider than the landlord’s covenant to repair. Nonetheless, counsel sought to argue for even wider powers of access. The argument was that OCC have repairing obligations that go beyond both the express repairing obligation in the lease (to maintain the exterior, party walls etc in good and substantial repair and condition) and the implied covenants that are imposed in RTB leases by para 14 of Schedule 6 to the Housing Act 1985, to include ‘beneficial works’ that support the general management powers of the local authority under s 21(1) of the Housing Act 1985. The argument was that if there were wider repairing obligations there would also be a corresponding duty to permit OCC access to carry out these works.
The judge found that there was a wider right but that it ‘has to be circumscribed and is not wide or free-ranging or based on a general management power in a portmanteau sense’ . The limited nature of the right is explained by the fact that the lease does already contain express terms relating to rights and obligations, and there is no need to imply other terms ‘in order to give business efficacy to the Lease’. Further the judge acknowledged that the covenant for quiet enjoyment is effectively a ‘contractual expression of the Tenant’s right to a home life and privacy and should not be lightly interfered with’ . Nonetheless, the judge did say that there is a limited right of access ‘where the Tenant’s refusal of access interferes with powers otherwise available to the Landlord and which the Landlord wishes to exercise so as to avoid the risk of death or personal injury or to remedy a state of affairs which is injurious to health’ .
Implying this right to access involved two steps: 1. Finding a (limited) right of access by drawing on two earlier cases, McAuley v Bristol CC (1992) and Lee v Leeds CC (2002); 2. Impressing this on the RTB lease by virtue of para 2(2)(b) of Schedule 6 to the Housing Act 1985, which makes the RTB lease subject to easements etc from the secure tenancy that previously existed.
It’s important to note just how limited and, arguably, fact specific the earlier cases were. McAuley itself drew heavily on an earlier case, Mint v Good. In that case there was a weekly tenancy from a private landlord and a wall collapsed onto the highway, seriously injuring a 10 year old boy. There does not appear to have been a written tenancy agreement but only a rent book (hence, perhaps, making it ‘necessary’ to imply terms). In addition, the wall was very much ‘out of repair’. When Chadwick LJ discusses Mint in Lee he is careful to note that the implied term was to do repairs. In McAuley, with a local authority landlord, the tenancy agreement again appears to have been limited in content, the main reference to repairs was in a handbook, and the access term was implied for ‘business efficacy’. The term is narrowly confined to removing the risk of injury. In that case the risk came from a dangerous step in the garden. In the later case, Lee, Chadwick LJ drew on McAuley, accepting that a landlord can insist on carrying out remedial works against the wishes of the tenant ‘at least to the extent…required to remedy defects which were a danger to health’ . What emerges from these is a line of authority that focusses on the need to allow entry when necessary because disrepair causes a risk of injury, implying terms into short term rental agreements.
By contrast, in Oxford CC v Dr Piechnik there was a long lease and, according to the judge, no room for implication by business efficacy. In Mint Somervell LJ expressly said he was not dealing with tenancies longer than weekly tenancies or where there are written documents expressly dealing with repair. Although the Oxford case involves a long lease it was, however, a RTB lease that carries across certain provisions from the earlier secure tenancy. In this instance the original RTB lease had been granted in 2003, and although there does not appear to have been a copy of the actual pre-2003 secure tenancy available to the judge, it is likely that even if that secure tenancy did not contain an express right of entry to remedy dangerous disrepair, one would have probably been implied using the reasoning in McAuley. What is perhaps less clear is how such implied terms would carry across into the long, detailed RTB lease that was granted; that is, exactly how would para 2(2)(b) apply in this context when the RTB lease itself does already make express provision for repair and access. There was no reasoning on this, and case law on implied terms shows a reluctance to read terms into contracts that contain detailed wording.
The Court of Appeal in the earlier cases was also very careful to limit the scope of the term to remedial works required to remove the risk of injury. This is considerably narrower than the wording used by the judge in Oxford CC v Dr Piechnik. Remedial works require something to be ‘out of repair’, more specific and constrained than the potentially much broader reference to ‘powers otherwise available to the Landlord’. In addition, whereas the judge’s reference to ‘death or personal injury’ is consistent with the earlier cases he also adds ‘or to remedy a state of affairs which is injurious to health’. This appears much broader. In Lee itself the Court of Appeal drew an important distinction between ‘repair and maintenance’ (relevant there for the Defective Premises Act 1972 argument) and inherent defects (that could be injurious to health).
Although a county court case, the Oxford decision is clearly significant, and one suspects may be appealed. It addresses a crucially important issue for landlords: when can they enter a flat against the express wishes of a tenant/leaseholder? There is often resistance, not least because, as the photos show, ‘improvements’ do not always ‘improve’ the home.
How to cite this blog post (Harvard style)
Bright, S. (2019). Do Landlords Have a Right to Enter Flats?. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/10/do-landlords-have-right-enter-flats (Accessed [date])
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