On 1 July 2020, the Court of Appeal handed down its decision in Rees v Earl of Plymouth [2020] regarding a farm tenancy and the landlord’s reserved right of entry.

The case is a significant decision supporting landlords’ rights of access and their freedom of action, particularly in the case of farm tenancies and access to tenanted land, but also for tenancies generally.

In this case the tenant farmed the holding under two tenancy agreements, one granted in 1965 and one in 1968, both now protected tenancies under Agricultural Holdings Act 1986.

The landlord had obtained outline planning permission for housing on the land comprising the farm, where the environmental conditions attached to the planning permission required the landlord to undertake various landscape, wildlife and habitat surveys on the farm.

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These surveys included, amongst other things, digging trial pits and boreholes; placing surveyors’ reference pins on the land, and leaving ‘remote bat detectors’ on the land for several days at a time in order to study the bat population.

The case related to the extent of a landlord’s ability to rely upon tenancy reservations to enter onto and carry out works on the tenanted land and came to the Court of Appeal following a High Court case where the Judge had said that a restrictive approach to reserved rights of entry in a tenancy should be taken.

The High Court’s conclusions had been supported by previous cases including Possfund Custodial Trustee Ltd v Kwik-Fit Properties Ltd and Heronslea (Mill Hill) Ltd v Kwik-Fit Properties Ltd, which previously had supported the notion of restricting a landowner’s freedom of movement when relying upon a landlord’s broad-based reservations of rights in tenancy agreements.

This meant an approach which would prevent entirely any intrusive surveys or other works being carried out that might cause interference or damage to the land.

The successful appeal brought against this conclusion by the High Court is now based on a Court of Appeal judgement given by Lord Justice Lewison, and is considered important as he is a leading legal authority on property law issues.

This judgment sets a useful reference point for landlords, particularly agricultural landlords, who seek to rely upon broadly-worded rights of entry in leases. These rights clauses inserted in order to conduct necessary works and such other activities as environmental, landscape or habitat surveys, though such rights should not be construed as permitting substantial or serious interferences with the tenant’s quiet enjoyment.

Tenancy agreements should include specific provisions for a landlord’s right of entry to be exercisable in such cases. The Court of Appeal’s decision makes it difficult be too specific on exactly what is permitted, stating that everything is considered on a case-by-case basis and that one would expect “material” disturbance or damage to be expressly authorised by the terms of the lease.

What is “material” is open to debate, but a sensible interpretation of the landlord’s rights should be taken into account set against the purpose of entry, which should be reasonable and necessary.

Rees v Earl of Plymouth [2020]

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