The rules governing landlords’ rights of entry can cause confusion and inconsistency. The Court of Appeal re-examined these principles in Earl of Plymouth v Rees  EWCA Civ 816,  4 WLR 105. Edward Francis reviews the case.
Tenancies of both residential and commercial units within a multi-tenanted building commonly reserve rights of entry in favour of the landlord. This entitles the landlord to enter the premises for the purposes of not only inspection but also carrying out works of repair or improvement (whether to the premises themselves, or to adjoining parts of the building retained by the landlord).
Such rights of entry sit alongside the landlord’s covenant for quiet enjoyment, and, on the face of it, may appear to contradict that covenant. Indeed, whether in the wide terms in which such rights are sometimes drafted or in the manner in which the rights are sought to be exercised (perhaps requiring the tenant to give up possession of the whole premises to the landlord for a limited period, to facilitate repair or improvement works), these rights may appear to undermine the grant of exclusive possession which is fundamental to the concept of a tenancy.
Traditionally, a number of rules or presumptions of interpretation have been invoked in construing reservations of rights of entry and similar clauses, such as the principles:
- that the reservation should be construed restrictively against the landlord, and
- of non-derogation from grant – so as not to diminish from the grant of exclusive possession conferred by the tenancy.
However, such principles can sometimes lead to inconsistency and incoherence in their operation, in particular where the tenant is treated as the grantor of the right of entry, leading to the argument that the right should in fact be construed against the tenant.
In Earl of Plymouth v Rees, the Court of Appeal had cause to re-examine these principles.
The facts of Earl of Plymouth v Rees
The case involved a farm comprising 240 acres of mainly arable land on the outskirts of Cardiff.
The farm was let under a tenancy which reserved in favour of the landlord a right of entry drawn in wide terms: a right for the landlord and those authorised by him “to enter upon any part of the farm lands and premises at all reasonable times for all reasonable purposes”. The tenancy also contained an implied covenant on the part of the landlord for quiet enjoyment.
His Honour Judge Keyser held that the right did not permit activities which involved significant interference with the operation of the working farm, in conflict with the tenant’s right to quiet enjoyment
The landlord was granted outline planning permission for a large-scale housing development on the farm, subject to various conditions for the carrying out of ecological and other surveys. For those purposes, the landlord required entry to the farm, amongst other things, to carry out a bat survey. This involved the nightly presence of surveyors tasked with counting bats and leaving a number of remote bat detectors on the farm.
The tenant objected, contending that the right of entry should be strictly construed against the landlord and in a limited manner, so as to avoid the right being struck down as a whole as repugnant to the grant of exclusive possession conferred by the tenancy. In particular, on its proper construction the right did not permit the landlord to sink boreholes on the land (as the landlord had previously done) or to leave any equipment such as bat sensors on the farm, and no ancillary right to do so should be implied.
The first-instance decision
The judge at first instance, His Honour Judge Keyser QC, reviewed the authorities relating to the construction of reservations of rights of entry and their interrelation with the covenant for quiet enjoyment: see  EWHC 1008 (Ch);  4 WLR 74.
He rejected a formalist approach to construction based upon the application of strict rules, which he considered could lead to incoherence, in favour of a common-sense approach. Under this approach, the court would expect any qualification to the tenant’s right to possession and quiet enjoyment of the premises to be clearly set out within the express wording of the right of entry.
His Honour Judge Keyser therefore considered that the right of entry should be construed as permitting inspections or surveys for purposes connected with the lease. However, he also held that the right did not permit activities which caused damage to the land or involved cordoning off any part of the land or significant interference with the operation of the working farm, in conflict with the tenant’s right to quiet enjoyment, in the absence of express words providing for the same.
The Court of Appeal decision
Lord Justice Lewison largely agreed with the approach to construction set out by the first-instance judge. He endorsed the principles set out in cases such as Century Projects Ltd v Almacantar (Centre Point) Ltd  EWHC 394 (at ) and Timothy Taylor Ltd v Mayfair House Corp  4 WLR 100 (at ). These cases set out that, where provisions in a lease, on one hand, grant the landlord rights of entry or rights to carry out works to its retained land, and, on the other, grant the tenant the right to quiet enjoyment, such provisions should be read in conjunction, so that neither trumps the other. A landlord may carry out works pursuant to its reserved right, but only to the extent that the right is exercised reasonably so as to not to disturb the tenant’s enjoyment of the premises more than reasonably necessary.
Lord Justice Lewison also expressly approved the following propositions set out by the judge:
- (2) “Therefore the court will, where it is possible to do so, construe an exception or reservation as restrictively as is required to avoid a derogation from grant or a conflict with the covenant for quiet enjoyment. In the words of Neuberger J in Platt v London Underground Ltd (supra): ‘An express term should, if possible, be construed so as to be consistent with what Hart J called “the irreducible minimum”, implicit in the grant itself.’
- (3) “There is no further rule that a reservation is to be construed restrictively against a landlord.
- (4) “However, the application of the standard principles of construction, including the requirement to have regard to all of the provisions of the instrument and to the principal purpose and subject matter of the instrument, will tend to lead the court to expect that substantial qualifications of the rights to exclusive possession and quiet enjoyment of the demised premises will appear clearly from the lease. Further, apparently broad and unqualified words in reservations may, on closer examination, be found to have a more restricted meaning when read in their immediate or wider textual context.”
The decision in Earl of Plymouth reflects a broader trend prevalent in the decisions of the appeal courts in eschewing any “special” rules of construction applicable to particular types of clause in favour of a common-sense approach which has regard to the terms and purpose of the lease as a whole and the factual matrix in which it was granted.
It is, however, an important reminder to landlords not to assume that rights of re-entry drafted in apparently broad terms will provide carte blanche to enter the tenant’s premises for the purposes of carrying out intrusive inspections or works of repair or improvement. The terms of the right should be carefully considered to see whether they encompass the proposed activity. And even where this is the case, the activity may be permitted only to the extent that the landlord acts reasonably when exercising the right, and minimises the disturbance to the tenant as far as reasonably practicable.