This case involves forfeiture proceedings against a zoo. Possession was recovered and in response the tenant sought declaratory relief that the Landlord had not validly forfeited following the service of notices pursuant to Section 146 notice or alternatively a general relief from forfeiture. The facts of the dispute covered a wide range of issues many of which are quite specific to the relationship and agreements between the landlord and the tenant. However, one part that may be more generally applicable was made by Judge Pearce regarding reasonable access and when it can constitute a material breach.
In the case, the Landlord relied upon two separate instances of the tenant refusing access to the property which in their submissions constituted a material breach on the part of the Tenant worthy of forfeiture under the terms of the lease.
The first of these incidents involved access requested on 29 April 2021 where the Landlord was requesting access to recover items that the Landlord alleged belonged to them. The tenant refused access and, in their submissions, argued in the alternative that the request for access was made solely for the purpose of removing items of personal property which was not something defined within the lease. The right of access of the landlord as detailed in the lease is restricted to purposes “mentioned in or connected with the lease and the Landlord's interest” in the land which is the subject of the lease. Using this strict interpretation, the Landlord was therefore not contractually entitled to access for this purpose. In the alternative, the tenant argued that the Landlord was essentially using the inspection to heavy handily intimidate the tenant and take items that they were not entitled to and not prepared for with a last-minute change to the request. This did not therefore constitute a reasonable request.
The Landlord in response argued for the interpretation of the lease to be read more widely and if this argument fails, then when the representative of the Landlord arrived at the zoo and was refused access for the purpose of removing chattels, she reframed her request as one for inspection of the items which should have allayed any fears that the Tenant had.
The second request for access referred to in the proceedings was for an inspection at 2pm on a particular day. The Tenant agreed to a specific time on the basis that the suitable representative of the Tenant company would attend given the nature for the relationship between the parties and the lack of trust that existed.
The representative for the Landlord attended that the Property at 9am instead of the agreed time. The representative of the Tenant messaged the Landlord at 10.33 am to say that he would be at the zoo in an hour and arrived there at 11.30am but the Landlord’s representative had left by then.
The Landlord acknowledged the different time but said this was necessary given the Tenant’s postings on social media informing their followers of the inspection. This meant it was inappropriate and unsafe for the Landlord’s representative to attend at the agreed time but once arriving there is no reason that access should not have been granted. As I mentioned earlier in this article, there was much more in dispute within these proceedings than just access.
Ultimately the judge came down in favour of the Tenant on both points. Firstly, with the inspection on 29th April:
‘…The chattels are not part of “The landlord's interest in the Property” where “the Property” is defined as the land itself. It follows that the purpose for which access was sought was an activity which goes beyond that for which the right of access is granted in the lease. I have no hesitation in concluding that the refusal of access for such a purpose was not a breach of the lease.’
The judge did further mention that had they not decided the above, the revised intention of the visit made while the Landlord was in attendance, would not have been sufficient to constitute reasonable notice.
The second inspection was similarly dismissed. Whilst the judge commented on the potential wrongs of the Tenant by posting the inspection on social media which would be a separate issue, given the change in time:
‘I do not see how it can be considered unreasonable to have required Mr Rivera to wait until Mr Lambert arrived to facilitate the access.’
All of this highlights that Landlords do not have an unfettered entitlement to access to the property that they are letting out for whatever reason. The lease needs to be drawn up appropriately and reasonableness can be key particularly when relied upon as a ground for forfeiture.
If Boyes Turner can be of assistance in either drawing up a lease, advising as to its interpretation or dealing with any subsequent dispute, then we would be happy to do so. I can be contacted on [email protected].
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