Does silence amount to a breach of covenant?

It is common for leases to contain a covenant requiring a tenant to provide the landlord with access to the premises upon receipt of a period of notice. The lease will usually specify how much notice has to be given and for what purpose the access is allowed.

When a landlord serves notice seeking access, this can often be a trigger for argument and dispute. If a tenant is already unhappy with its landlord, a landlord’s notice seeking access is often the straw that breaks the camel’s back. It is not uncommon for a tenant to refuse to provide access. This then forces the landlord to seek an injunction.

The situation in New Crane Wharf Freehold v Dovener was rather different.  The landlord in this case served notice on the tenant requesting access.  The tenant failed to respond.  The landlord served another notice requesting access.  Again, the tenant failed to respond.  The notice served by the landlord specified the date upon which the landlord was proposing to attend the property with its agents and workmen.  Because the tenant did not respond to the landlord’s request, the landlord assumed that the tenant was refusing access.

The landlord therefore treated the tenant’s refusal to respond as a breach of covenant.  It issued an application in the Lands Tribunal on the grounds of what it considered to be a clear breach of covenant. 

The Lands Tribunal dismissed the landlord’s application.  The Tribunal held that:-

1. The fact that the landlord had not gained access to the premises did not by itself demonstrate that the tenant had refused to permit access.
2. There was nothing implicit in the covenant contained in the lease that the tenant had to expressly agree to the time and the day proposed by the landlord for the access.
3. Provided that the landlord had given notice to the tenant in accordance with the lease, there was no requirement for the landlord to obtain confirmation of the tenant’s express permission from the tenant before actually gaining access.

In effect, the landlord had been too cautious in this case.  Rather than waiting for the tenant to say “yes” to the landlord, the landlord should simply have proceeded to enter the premises using the key it held.

One could argue that it was unfair for a landlord to have been unsuccessful in a case such as this where, the landlord would say, it was treating the tenant’s right to quiet use and enjoyment of the property as sacrosanct. For my part, I favour the argument that you should exercise some practical nous and judgement. Check your contractual rights carefully. But do not be afraid to exercise them. They have a purpose.

If you have any questions in relation to the matters raised in this blog, please contact Andrew Turner on aet@hughes-paddison.co.uk.