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Rees v Windsor- Clive Rees v Windsor-Clive (as Trustees of the St Fagan’s No 1 and No 2 Trusts) [2020] EWCA Civ 816

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17th July 2020

Summary

The question whether a right of entry clause permitted a landlord to undertake activities in order to comply with planning conditions was a matter of fact and degree.

Facts

The freeholder obtained planning permission for a large- scale housing development on land predominantly used for arable farming (“the farm”). Conditions were attached to the permission including the need to undertake various surveys. However, the farm was subject to two tenancies granted in 1965 and 1968 which contained reserved rights of entry.

The 1965 agreement included a clause which stated that the landlord could enter on any part of the farm “at all reasonable times for all reasonable purposes”. The 1968 agreement stated that the landlord could enter at any time “for the purpose of inspecting the same … or for any other purpose connected with his estate”.

The tenants objected to the landlord entering to dig excavations, sink boreholes, erect structures, and install remote bat detectors.

First instance decision

At trial, the landlord argued that the right of entry was to be construed in favour of the landlord and against the tenant on the basis of the contra proferentem rule.  The landlord relied on obiter dicta in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No. 2) [1975] 1 WLR 468 in which the Court of Appeal said that because a landlord’s reservation of a right of way operated as a re-grant of an easement by the tenant, the tenant was the person against whom the right was construed.

The tenant contended that the rights were much narrower; the “reasonable purposes” for which the landlord was entitled to enter the farm had to be related to the parties’ landlord and tenant relationship. Moreover, a right of entry should be construed in favour of the tenant because of the landlord’s obligation not to derogate from grant.

The judge refused to grant a final injunction but did consider that the installation of monitoring devices, remote bat detectors and the placing by surveyors of discreet reference points in order to assist with the survey would be permitted under the rights of entry. The tenant appealed.

Decision on appeal

Lewison LJ gave judgment with which Popplewell and Carr LLJ agreed. A number of points emerge from the decision.

• Before one embarks upon the question whether there has been a derogation from grant, it is first necessary to identify what has been granted. In the case of a lease, what has been granted is the right to exclusive possession of the land for a term and on the terms contained in the lease. If a landlord exercises rights in accordance with the terms of the lease that cannot amount to a derogation from grant because those rights are part of the grant itself. As to what might amount to a derogation the cases all contemplate a substantial or serious interference before the principle is engaged. The derogation principle does not, however, require the court to give a right of entry the narrowest possible interpretation. It is in every case a question of interpreting the clause in question in its context.
• The interpretation of an express right reserved to the landlord is one of fact and degree. Thus, in the instant case in so far as the 1968 agreement was concerned, the relevant purpose for which the landlord was entitled to enter the farm was “for the purpose of inspecting the same”. Lewison LJ agreed that a right to inspect must not cause “any material disturbance” to the tenant or result in “material damage” to the premises. However, what might be intrusive depends on the context of the agreement.
• It is not the case that clear words are necessary before any disturbance of the tenant’s possession is authorised; but that such words would be expected to justify intrusive investigations of the kind described  amounting to “material” disturbance or damage to the tenant. Whether something is “material” disturbance or damage is clearly a matter of fact and degree. Thus, intrusive investigations lasting several days might be a material disturbance in a lease of a petrol filling station but might not be intrusive in the case of a 51 acre farm.

• The right of entry is not a right to enter for entry’s sake. It is a right to enter for a particular purpose. So, if a purpose is a reasonable purpose for which the landlords wish to enter the land, the proper interpretation of the right must surely enable them to do what is reasonably necessary to achieve that purpose. “Reasonably necessary” is not the same as “convenient” or “desirable”. Conversely, if what they want to do (or what is reasonably necessary to do) in order to achieve a particular purpose is highly intrusive, then the purpose itself may be held not to be a reasonable one. By the same token, the time at which the landlords wish to do something may or may not be reasonable, depending on what it is that they wish to do. Something that might be reasonable to do in the daytime might be unreasonable if done at night.
• Lewison LJ commented that he did not consider why different principles of interpretation should apply to a landlord’s right of entry depending on whether it arose as a result of a reservation of the right, or as a result of a covenant by the tenant to permit entry. However, that issue did not arise in the appeal.

Comment

To a large extent, this decision does not take the law much further. However, it demonstrates that the interpretation of a right of entry cannot be considered in the abstract; it is a question of fact and degree. A widely drafted right of entry does not necessarily enable the landlord to do as it pleases (in this case the boring of holes and excavation had not been permitted at first instance and was not subject to an appeal).  Equally, a strict interpretation that a right of entry only permitted the landlords to enter, inspect and then leave, without leaving anything on the land even for a short time, was rejected; the right of entry needs to work sensibly and a literal interpretation does not produce sensible results.  The most useful lesson is that if a landlord wishes to reserve rights of entry to encompass such extensive investigations then a more prescriptive clause may be required.

Rebecca Cattermole

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