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T’s failure to respond – not a refusal of access

The UT has held that T’s failure to reply to a letter from L requesting access to the property did not amount to a refusal of access.

The tenancy agreement contained the standard provision:

‘To permit the Lessor and its agents and workmen at all reasonable times on giving not less than forty-eight hours notice… to enter the Demised Premises for…’

L wrote to T twice requesting access. T responded to one letter by email asking why L required access but then did not respond again. There is no suggestion that L or his workmen attempted to gain access – this fact proved to be important in the decision. L applied to the FTT on the basis that T’s failure to reply amounted to a breach of covenant. L lost and appealed.

The UT held that there was no breach. L had given the required notice under the clause. There was nothing in the clause stating that L could only gain access on obtaining T’s confirmation that the date and time were convenient. On this basis, and having given the correct notice, L could have attempted to exercise the right of re-entry. Had T refused entry at that point, L could have established that T had refused entry.

Ideally, L’s letter to a T should:

  • state specifically why access is required;
  • specify the clause of the tenancy under which access is sought;
  • give the requisite period of notice;
  • specify the date and time required for access;
  • state who will be attending (if a contractor, for example); and
  • state that unless T specifically declines, then consent to access will be assumed.

L should then try to gain access on the date and time and in the manner specified in the letter. See New Crane Wharf v Dovener [2019] UKUT 98 (LC) and commentary by PainSmith.

 

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