Summary
In this case a tenant claimed that his landlord had no express or implied rights to enter his leasehold flat and carry out works against his wishes. The High Court accepted the tenant's case in part and held that, although the tenant's obligation to grant access went further than just allowing access for repairs, there was no "extended right of access", even for health and safety works.
Facts
This case concerned refurbishment works carried out by Oxford County Council (Oxford CC) on its freehold property known as Plowman Tower. In addition to a new ventilation system, a new fire alarm system and a retrofitted sprinkler system, these works included the installation of new insulation and cladding and additional walls and panels to balconies. In order to carry out some of these internal works, Oxford CC demanded access to the individual flats.
Whilst most of the 85 flats in Plowman Tower are directly rented from Oxford CC, 16 are now held by long leaseholders on right to buy leases. Dr Piechnik was one such long leaseholder. Like many other long leaseholders in Plowman Tower, Dr Piechnik disapproved of the cost of the works and the disruption that they would cause, so he refused access. In response, Oxford CC commenced proceedings at the Oxford County Court to request a mandatory injunction obliging Dr Piechnik to give access.
Proceedings were also previously brought before the First Tier Tribunal to determine whether Oxford CC was able to recover the cost of the works at Plowman Tower as service charge. The Tribunal held that the majority of the works undertaken should be considered to be "improvements" as opposed to works of repair or maintenance. As a result, the terms of the long leases did not permit recovery of these sums from the leaseholders.
Arguments before the court
Relying on an interpretation of paragraph 2(2)(b) of Schedule 6 of the Housing Act 1985 (which relates to the right of access of light and air to a property) Oxford CC sought to argue that its express right of access could be extended to include entering flats to carry out works which would help avoid death or personal injury.
Furthermore, it asserted that it benefited from such rights even where the works were deemed to be improvements to the property. This was argued on the basis that the council's repairing obligations went beyond those expressed the lease or the implied covenants under the Housing Act 1985 to include "beneficial works" that support its general management powers under s21(1) Housing Act 1985.
Dr Piechnik disputed this claim on the basis that Oxford CC had no express right to enter the premises to carry out works of improvement (rather than repair or maintenance) and that to do so would breach the terms of the lease and the implied covenant of quiet enjoyment.
County Court decision
At first instance, the County Court held that the lease did provide Oxford CC with a right of access to carry out improvement works. The Court also held that the Tribunal's decision would be binding on the parties, but only to the extent that it dealt with the determination of the works as improvements and not repairs.
The decision
On appeal, the High Court held that the County Court was wrong to imply an "extended right of access" into the lease by applying paragraph 2(2)(b) of Schedule 6 of the Housing Act 1985, since this provision is directed solely at rights relating to the access of light and air and has nothing to do with rights of entry.
The High Court determined that, on a true construction of the lease, Oxford CC did have some rights to enter for the purpose of carrying out improvement works and these should not be qualified by the landlord's covenant of quiet enjoyment. However, the extent of these rights was more limited and did not include the right to enter for the purpose of carrying out works intended to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health.
Dr Piechnik also appealed the County Court's finding on the second issue relating to the Tribunal's decision. He argued that that all of the Tribunal's decisions relating to the interpretation of his lease should be binding, and not only those which dealt with the classification of the works as improvements. The High Court rejected this appeal on the basis that the Tribunal's jurisdiction is limited by statute to determining the defendant's liability to pay service charge and the parties had not agreed to accept the Tribunal's jurisdiction on other legal issues relating to the interpretation of the lease.
Our thoughts
In the post Grenfell-era, landlord remediation measures and efforts to address fire safety issues are under ever-increasing scrutiny. However, this judgment makes clear that when seeking to implement schemes of major refurbishment works, landlords must give careful consideration to the different access rights they may or may not have. It is therefore vital for landlords to pay close attention to the nature of the works they intend to carry out and to plan accordingly.
