01 July 2020

The Court of Appeal has just handed down an important and very positive decision for landowners and developers in the case of Rees v Earl of Plymouth [2020] EWCA Civ 816.

The case relates to the extent of a landlord’s ability to rely upon tenancy reservations to enter onto and carry out works on tenanted land. Most valuably, this may include tasks such as site surveys or environmental investigations which are usually required before a planning application can be submitted for larger scale developments. 

This case came to the Court of Appeal following a High Court case where the Judge had said that a restrictive approach to reserved rights of entry in a tenancy should be taken. That approach looked to prevent entirely intrusive surveys or other work being carried out that might cause damage to the land. The case led on from previous cases such as Possfund Custodial Trustee Ltd v Kwik-Fit Properties Ltd and Heronslea (Mill Hill) Ltd v Kwik-Fit Properties Ltd, which have tended to restrict a landowner’s freedom of movement when relying upon reservations in tenancies. 

The leading judgment in the Court of Appeal was given by Lord Justice Lewison. This is important. Lord Justice Lewison is regarded as a, if not the, leading legal authority both on property law issues and the interpretation of contracts, particularly in the context of property contracts. We can expect this judgment to be treated with a high degree of respect. 

The Court of Appeal’s conclusion was that if rights of entry are reserved for reasonable purposes, which is a very common formulation, those reasonable purposes had to be understood in the context of the land and all relevant circumstances. If the right of entry was for a highly intrusive purpose, then that may not be held to be a reasonable one, but (importantly):

'what might be intrusive in [the example was given of a lease of a petrol filling station] might not be intrusive in the case of a 51 acre farm. It is, as I said, a question of fact and degree.' 

The judgment did not support an overly restrictive interpretation of reservations, and had a number of comments on the contra proferentem rule which will be of very real importance to lawyers grappling with the details of these issues. 

But, most moments of friction that arise between landowners or developers and tenants of land that may be subject to development do not result in Court hearings, nor do they turn on very detailed analysis of specific rules of interpretation, or 'the old intellectual baggage of “legal” interpretation'. Instead, they are guided far more by the broad thrust of the Court’s approach. 

The broad thrust coming from this case is that rights of entry should be interpreted sensibly, not unduly legalistically, and in the context of the land to which they apply. This case is likely to be seen as a significant decision supporting landlords’ rights of access and their freedom of action on tenanted land. 

To illustrate how this may be may be seen in practice by landowners, we sought the views of Michael Lawley, the Chairman of Cooke & Arkwright, the landowners’ property advisors. His comment as to how this decision was regarded by the landowners was that it is 'an important vindication of a common sense, practical approach to landlords exercising their rights under tenancies'.

Kevin Kennedy, Richard Owen, Maddie Dunn and Heather Leach acted for the successful landowners in this appeal.

Key contact

Kevin Kennedy

Kevin Kennedy Partner

  • Estates and Land
  • Private Wealth
  • Agricultural Disputes

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