Tenants who try and prevent their landlords from gaining access to their land will need to be very clear on the detail of their tenancy agreements and ensure that their response is proportionate to the request in hand. In a recent case (Rees v Plymouth) that went to the Court of Appeal, the judge ruled that the tenant, Mr Rees, had no grounds for refusing his landlord’s representatives from gaining access in order to carry out an ecological survey on the basis that the request and activity proposed were reasonable.
Tenant relies on narrow interpretation of landlord’s right of access
Jenkin Rees and his son, Phillip, farm around 240 acres of largely arable land on the western edge of Cardiff. Jenkin Rees took an AHA tenancy for the majority of the land in 1965, adding additional acres in 1968 under a separate agreement. Both agreements conferred rights on the landlord (Plymouth Estates) to gain access to the land:
- The 1965 agreement conferred a “Right for the Landlord and his Consultant and others authorised by him with or without horses, carriages and other vehicles to enter on any part of the Farm lands and premises at all reasonable times for all reasonable purposes”; and
- The 1968 tenancy agreement contained a proviso that: “the Landlord may at any time and at all times during the said tenancy enter upon the said premises with Agents Servants Workmen and others for the purpose of inspecting the same or for making roads sewers or drains or for any other purpose connected with his estate”.
The disagreement between Mr Rees and his landlord started in earnest in 2016 when the latter obtained outline planning permission for 21 acres of Mr Rees’ farm for the development of a garden village under the Local Plan and issued a notice to quit under Case B of Schedule 3 to the 1986 Act. Mr Rees referred the issue to arbitration but, in the meantime, the landlord sought an injunction to prevent Mr Rees from blocking attempts to access his land to carry out relevant surveys. At court, Mr Rees successfully argued that the landlord’s right to gain access to his land should interpreted narrowly in order to ensure he retained his right to exclusive possession and ‘quiet enjoyment’.
Right of access should be exercised proportionately and in context
At appeal (June 2020), the landlord argued that the request for access to carry out an ecological survey, which involved placing bat detectors on the farm (including in woodland which the landlord had retained under the tenancy agreement) and placing surveyors’ pegs in the ground, was reasonable. The tenant maintained that leaving equipment on the farm for a number of days actively undermined the principle of exclusive possession. The Court of Appeal disagreed, ruling that it was critical to review the request for access within the proper context. In this case, the request was a reasonable and the proposed activity proportionate and that any sensible person would be minded to allow it. That might not have been the case had the proposed activity been invasive, damaging or disruptive.
Ongoing dialogue should avoid the need to involve the court
Given the amount of development currently underway around the country, this case highlights the need for ongoing dialogue between tenants and landlords so both understand the position and objectives of the other. Most leases do confer specific rights of access for the landlords and it is tempting for tenants to try and interpret those rights as restrictively as possible. However, taking this type of disagreement to court involves considerable time, cost and anxiety and should not be necessary unless it is clear that flagrant breaches of the agreement are being made by either party.