Tenant Entitled to Reasonable Adjustments When Allowing Entry

OUTCOME: Dismissed

1

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : BIR/37UG/LBC/2023/0006 Property :

[ADDRESS] [POSTCODE]

Applicant : [redacted] [APPELLANT] : Dr [COUNSEL] (Director) Respondent : [redacted] : Mr [COUNSEL] (counsel) instructed by [NAME] of application : Application for an order that a breach of covenant or condition in the [APPELLANT] has occurred (under s168(4) of the Commonhold and Leasehold Reform Act 2002) Tribunal members : Judge C [NAME] [NAME], FRICS, Regional Surveyor

Date and place of hearing : 3 September 2024 at Nottingham Magistrates Court Date of decision : 5 September 2024

DECISION

© CROWN COPYRIGHT 2024

2 Background 1. Wesley House is a late nineteenth century brick built property in Newark which has been converted into eight apartments. Apartment 2 (“the Property”) is on three floors. It is occupied by the Respondent under a 999 year [APPELLANT] granted in 2003.

2. The [APPELLANT] is tri-partite, the parties originally being the freeholder, Wesley House (Newark) [APPELLANT] (“the Applicant”), and the lessee. The freehold however, has now been transferred to the Applicant.

3. The [APPELLANT] contains a covenant in favour of the Applicant (on prior notice) requiring the Respondent to permit the Applicant to enter the Property to ascertain whether the covenants and conditions in the [APPELLANT] have been observed and performed and to view the state and condition of the Property.

4. The Applicant believes that the Respondent is in breach of the covenant and has brought this application for a determination to that effect.

5. The application was heard in Nottingham on 3 September 2024. Two directors of the Applicant attended, and one of them, Dr [APPELLANT], presented their case. The Respondent was represented by Mr [COUNSEL] of counsel.

6. The Tribunal inspected the Property prior to the hearing in the presence of Dr [COUNSEL], the Respondent, and the [NAME].

7. This decision sets out our decision on the application and our reasons for so deciding. Law 8. Section 168 of the Commonhold and Leasehold Reform Act 2002 provides:

168 No forfeiture notice before determination of breach

(1) A landlord under a long [APPELLANT] of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c. 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the [APPELLANT] unless subsection (2) is satisfied.

(2) This subsection is satisfied if—

(a) it has been finally determined on an application under subsection (4) that the breach has occurred,

(b) the tenant has admitted the breach, or

3 (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred.

(3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made.

(4) A landlord under a long [APPELLANT] of a dwelling may make an application to the appropriate tribunal for a determination that a breach of a covenant or condition in the [APPELLANT] has occurred.

… Inspection 9. The Property is accessed from ground level via a path accessed from the street. Apartment 2 occupies the western corner of a larger building containing the eight apartments. It is a residential property over three floors. Externally, there is a small enclosed yard at the rear which can be accessed from the apartment only. The yard is bounded by brick walls on three sides. The fourth side is bounded by a wooden 3-pannelled fence with concrete posts between the Property and Apartment 3. We noted some minor disrepair to the fence, with the most disrepair being to the panel closest to the building.

10. We inspected a room on the first floor and were asked to note the condition of the woodwork and leadwork of three windows. We observed that the external sill of one window was in a state of significant disrepair. There were some minor cracks around the windows.

11. In a corner of the room we noted some water ingress stains on the ceiling and at high level on the walls. We were told that the Respondent’s bathroom was above the stains, though it was said that the bathroom fittings (WHB, toilet etc) were not immediately above the stains. The Respondent declined to allow us to inspect the bathroom.

12. On the ground floor, we were asked to observe the woodwork of the kitchen windows. We noted that one window had a noticeable, though not alarming, shrinkage crack. Externally, that windowsill is also in poor repair. The other kitchen window also had some cracking, though to a much less significant extent. [APPELLANT]

13. The [APPELLANT] is dated 1 August 2003 and is for a term of 999 years from 1 March 2003 at a peppercorn rent.

4 14. The property demised is set out in the First Schedule. The demise is of the internal walls and partitions and internal plasterwork. The walls themselves are not included in the demise. They form part of the Building.

15. The First Schedule further confirms that the demise includes “… the windows window fastenings window frames window sills and glass fitted in such window frames…”.

16. The boundary fence between the Property and Apartment 3 is not included in the demise.

17. The “Buildings” are defined as the flats on the estate which include the premises.

18. Clause 3.3 is a covenant by the tenant to repair the Premises and keep them in repair. Clause 3.9 is a covenant by the tenant to pay a fair and just proportion of the cost of repairing all party walls and fences used in connection with the premises.

19. Clause 3.28 is a tenant covenant: “to permit the Landlord and the Management Company on prior notice to the tenant except in case of emergency: 3.28.1 to enter upon the Premises for the purpose of ascertaining that the covenants and conditions of this [APPELLANT] have been observed and performed 3.28.2 to view (and to open up floors and other parts of the premises where such opening up is required in order to view) the state of repair and condition of the premises and 3.28.3 to give to the tenant (or leave upon the premises) a notice specifying any repairs cleaning or painting that the tenant has failed to execute in breach of the terms of this [APPELLANT] and requesting the tenant immediately to execute the same including the making good of such opening up (if any) provided that the landlord shall make good any opening up if it reveals no breaches of the terms of this list” 20. Clause 6.2 is a covenant by the Management Company to maintain (inter alia) the Building. The tenant is to contribute a proportion of the cost of compliance with this covenant via a service charge (see clause 2.2 and the Fourth Schedule).

21. The Third Schedule also grants rights to the Landlord and the Management Company to enter the Property.

22. The Fourth Schedule requires the Management Company to maintain the Building (but not the Premises) and the boundary walls and fences not included in the [APPELLANT] of any flat in the Building, and to decorate the external parts of the Building (but not the Premises).

5 [APPELLANT]

23. The Tribunal was provided with a 478 page bundle of documents which included the parties’ statements of case and a considerable amount of correspondence over a period of around five years. From these documents, and from what we were told at the hearing, we find the [APPELLANT] are as appears in the following paragraphs.

24. The dispute concerns three issues at the Property: a. A desire by the Applicant to replace the fence panels between the Property and apartment 3; b. Whether the Respondent’s windows require redecoration; c. A wish by the Respondent for the apparent water ingress to be investigated.

25. The Applicant believed that it has responsibility for external redecoration of the windows. The Tribunal makes no finding as to whether this is correct. It has made efforts since at least 2021 to carry out an inspection of the Respondent’s windows. It also considers that the fence panels between the Respondent’s external yard and apartment 3 should be replaced. It has also tried to carry out this work. It also wishes to investigate the apparent water leak.

26. The Respondent has resisted the Applicant’s endeavours to obtain entry to quote for redecoration and to replace the fence panels or to investigate the water leak issue. The reason is that he has a diagnosed condition of anxiety and depression. His condition is exacerbated by engagement with certain members of the Applicant and some of the personnel they have engaged. He has therefore refused to allow access to the Property without certain reasonable adjustments being made, his authority for requiring reasonable adjustments being the provisions to protect against discrimination in the Equality Act 2010.

27. The reasonable adjustments requested have evolved a little over time, but they were summarised in an email dated 31 March 2023 from the [NAME] as being:

a. Times and date of entry to be agreed; b. Respondent to be allowed to be accompanied throughout any inspection by a person of his choice; c. Any contractor’s details to be provided 14 days in advance of any inspection or work; d. Contractors insurance details also to be provided; e. Two specific named individuals not to be involved in any way; f. Information must be provided about the scope of the inspection.

6 28. The only occasion referred to in the Applicant’s statement of case when it sought to exercise its right of entry to the Property came about in January – May 2023.

29. On 30 January 2023, the Applicant issued two notices to the Respondent, both giving notice of an intention to exercise the Applicant’s right of entry under clause 3.28 of the [APPELLANT] from 8.30am on 28 February 2023. One notice stated the purpose of the entry was to replace the existing fence panels (though in fact the notice indicated entry to do so would not be required through the Property). The other notice said the entry was to carry out an internal and external survey of the Property to establish the cause and extent of the water ingress.

30. The date of 28 February 2023 had previously been offered as a date the Respondent would permit entry, but only from 11am, this being one of the Respondent’s required reasonable adjustments. The Respondent’s solicitors therefore demanded retraction of the notices in an email dated 23 February 2023. The Applicant duly complied.

31. However, the Respondent then offered some further dates for entry in an email of 31 March 2023. Four dates were offered.

32. On 4 April 2023, the Applicant accepted two of the dates offered for inspection (by email to the [NAME]), being 11 May 2023 for inspection to investigate water ingress, and 18 May 2023 for replacement of the fence panels. The Applicant accepted the Respondent’s stipulated start time of 11am, but did not expressly comment on whether it would comply with all other reasonable adjustments demanded by the Respondent. The Applicant requested confirmation that these dates were still available.

33. The [NAME] did not reply to the Applicant’s email of 4 April 2023, so the Applicant wrote to the [NAME] on 17 April 2023 informing the Respondent that due to his lack of c0-operation the Applicant intended to apply to this tribunal, as it has of course now done.

34. No attempt to exercise a right of entry on either 11 or 18 May 2023 was in fact made. The Applicant’s case 35. Dr [APPELLANT] stated that the Applicant had no desire to bring forfeiture proceedings. It was just seeking a way to circumvent what appeared to him to be the Respondent’s inability to tolerate any attempt to engage with him in order to address the proper property management concerns of the Applicant.

36. His case was that the Respondent’s failure to confirm that inspections on 11 & 18 May 2023 were acceptable, so that he could then book the contractor and set up the days, should be regarded as a refusal to allow the Applicant to exercise its right of entry, this being a breach of clause 3.28 of the [APPELLANT].

7 The Respondent’s case 37. Mr [APPELLANT] argued that failure to provide confirmation that the dates of 11 & 18 May were acceptable could not amount to a breach of the [APPELLANT]. Both dates had in fact been offered just a few days before they were accepted. It was not reasonable to conclude that a second confirmation that they were available was required in order to avoid breaching the [APPELLANT].

38. If the Tribunal did regard the failure to confirm the dates as requested as a breach of the [APPELLANT], [NAME] argued that the Respondent would have been entitled to refuse to permit entry on the dates requested (if he had been so minded) because the reasonable adjustments he required had not been met. He took the Tribunal through the provisions of the Equality Act 2010 which provided that the Respondent was entitled to ask for the adjustments specified above.

Discussion 39. Our task in this case is to determine whether a covenant or condition in the [APPELLANT] has been breached.

40. Our view is that clause 3.28 is only breached if entry is refused. On the [APPELLANT], the Applicant never attempted to enter the Property on 11 or 18 May 2023, or on any other occasion included in the Applicant’s case in this application, so there was no refusal to permit entry.

41. We do not go so far as to say that a landlord has to physically attend to inspect, and then be physically refused entry, in order to prove breach of a covenant to permit entry. Prior knowledge that entry would certainly be refused would probably suffice.

42. But in this case, the Applicant’s expectation that it would be refused entry on 11 & 18 May 2023 was based only on lack of trust that the Respondent would abide by his offer of acceptable dates for inspection. We cannot, on the evidence, reach the conclusion that the Respondent would have reneged on his offer. In our view it would have been reasonable, despite the Applicant’s previous experience, to take the offer of dates in the [NAME]’s email of 31 March 2023 at face value and to work on the basis that entry would therefore be permitted. But the Applicant never tested that offer and never attempted to exercise its right to enter the Property.

43. We therefore determine that, quite apart from any considerations of discrimination under the Equality Act 2010, the Applicant has not proved a breach of a covenant or condition in the [APPELLANT].

44. Had the Applicant attempted to exercise its right of entry, and then been refused entry on the grounds that reasonable adjustments had not been put in place, we would have had to adjudicate on whether the adjustments sought were reasonable. Our determination above does not require us to

8 reach a determination on this question. This is a difficult legal point. If the parties find that they have to address it again, we express the hope that the Applicant will seek legal advice, and that it will explain in detail why it takes the view that any of the adjustments sought by the Respondent are not reasonable. We have reached no view on them. They may or may not all be reasonable. Decision 45. The application is dismissed. Appeal

46. Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal the party appealing must apply, in writing, to this Tribunal for permission to appeal within 28 days of the date of issue of this decision (or, if applicable, within 28 days of any decision on a review or application to set aside) identifying the decision to which the appeal relates, stating the grounds on which that party intends to rely in the appeal, and stating the result sought by the party making the application.

Judge C [NAME] First-tier Tribunal (Property Chamber)