8 October 2020
Red alert - Autumn 2020 – 5 of 6 Insights
The Court of Appeal has held that a landlord's right of entry did entitle it to install remote bat monitors and place discrete reference points on agricultural land as these fell under the umbrella of an "extended inspection". Broadly worded entry rights contained in a tenancy agreement may therefore allow landlords to conduct environmental, landscape or habitat surveys, although the precise terms of a given lease will be considered on a case-by-case basis.
The tenant farmed a holding pursuant to the terms of two tenancy agreements protected by the Agricultural Holdings Act 1986. The landlord obtained outline planning permission to build a large-scale housing development on the holding.
In order to satisfy the environmental conditions of the planning permission, the landlord needed to carry out various habitat surveys on the holding, including leaving remote bat detectors on the land.
The issue was whether the landlord's express rights of entry contained in the tenancy agreements were sufficient to allow entry on to the holding in order to carry out various habitat surveys. The rights of entry were:
At first instance, the judge discharged the landlord's interim injunction preventing the tenant from interfering with the landlord's rights of entry and dismissed the landlord's claim for a final injunction. However, the judge held that the rights of entry did and did not entitle it to carry out the following:
Entitled to by rights of entry:
Not entitled to by rights of entry:
The tenant appealed the conclusion that the landlord's rights of entry entitled it to install remote bat monitors and place discreet reference points, being forms of "extended inspection". The landlord's position was that the first instance decision should be upheld.
The Court of Appeal upheld the first instance decision and affirmed the following principles:
Whilst each case will be decided on its own facts, a distinction appears to have been drawn between substantial or serious interference (which will amount to derogation from grant) and a material disturbance or damage (which may be permitted by an express right of entry).
In respect of any new agreements being negotiated, landlords can seek to insert express rights of entry, whereas tenants may wish to restrict the landlord's rights of entry or insert compensatory measures, depending on how these rights are exercised.
Some questions remain unanswered. In whose favour should ambiguous rights be construed in the context of landlord and tenant? What constitutes "material" disturbance or damage?
by Multiple authors