Carr J held that a tenancy agreement expressly providing that the landlord may undertake ‘improvement works’ also confers upon the landlord a right of access for the purpose of undertaking those improvement works, notwithstanding any access clause in the tenancy failing to confer such rights.
Facts
Mr Harlow occupied Flat 25 Rydale Court. Network Homes Ltd, Mr Harlow’s landlord, sought to install certified fire rated front doors at its properties, including Flat 25. Network Homes required access to Flat 25 to carry out the installation, which Mr Harlow resisted.
It was agreed that the installation work was properly characterised as ‘improvement works’, and that Network Homes could not rely on its repairing covenants to secure access to the property. Instead, two clauses in the tenancy agreement were relied upon:
Clause 2.2
“We retain the right to carry out any repair, maintenance or improvement works which are not required by this clause but which we decide to carry out to improve the Property or the building or estate in which the Property is situated.”
Clause 3.19 (‘Access’)
“You must give all authorised employees and agents of Willow Housing and Care Ltd [Network Homes’ predecessor in title] reasonable access to the property to inspect or carry out essential maintenance, inspection and repair to the Property or to the building or estate in which the Property is situated. This includes treatment programs for pest eradication, improvement work and access to repossess your home if it is to be developed or disposed of.”
A dispute arose because, whilst Network Homes retained the right to carry out ‘improvement works’ under clause 2.2, clause 3.19 did not provide that Mr Harlow should allow Network Homes access to the property for such purposes. HHJ Luba QC found in favour of Mr Harlow, and held that Network Homes had no right of access for the purposes of installing the new front door.
High Court
Carr J reversed the decision of HHJ Luba QC and held that clause 3.19 should be construed as obliging Mr Harlow to allow access for the purpose of improvements, such as the replacing the front door.
His Lordship referred to the well-known principles regarding the interpretation of contracts in Arnold v Britton [2016] UKSC 36 and Wood v Capita Insurance Services Ltd [2017] UKSC 24. Applying those principles, his Lordship held that, as clause 2.2 expressly reserves the right to the landlord to carry out improvement works, clause 3.19 should be understood so as to enable that right to be enforced.
Comment
Two important points of interest arise from Network Homes. First, Both HHJ Luba QC and Carr J were keen to emphasise that the tenancy agreement was poorly drafted (see paragraphs 7, 16, 18 and 37). Indeed, the poor drafting of the tenancy agreement aided Carr J in reaching his decision, as his Lordship felt the omission of ‘improvement works’ from clause 3.19 could well be a result of poor drafting, rather than deliberate choice. His Lordship was keen to emphasise that courts are more willing to depart from the plain wording of a document when the document is not carefully drafted (paragraph 28).
Therefore, Network Homes serves to remind those drafting tenancy agreements and contracts that the overall appearance and coherence of a document may affect its interpretation and how it is received. Had the tenancy agreement as a whole not been littered with errors, Carr J may have been more willing to uphold the decision of HHJ Luba QC. Perhaps the lesson from Network Homes is more widely applicable as well; the more care that is taken when putting together our work, whether it be submissions, academic coursework or exam answers, the more likely it is that our work will be seen as an authoritative statement of the matter in hand.
The second point of interest arising from Network Homes appears at the very end of Carr J’s judgment. At paragraphs 48 and 49 his Lordship expressed deep concern that the matter had been subject to such protracted litigation. The strong message delivered by Carr J will be of interest to practitioners, and those who are recent Bar School graduates who have spent many hours studying the Resolution of Disputes out of Court module and the overriding objective as part of their Civil Litigation course. The fact that an issue as ‘small’ as that raised in Network Homes required three hearings at great expense to both parties (one of whom was a charity, and the other publically funded in the County Court) is baffling. It is of course accepted that the issues would not have been ‘small’ to those involved, and particularly to Mr Harlow who had genuine concerns as to his comfort and security (see paragraphs 43-47).
Carr J’s message should also be of interest to undergraduate law students. When considering legal problems in an academic context it can often to be easy to forget the human element of litigation: real people with real concerns drive cases. One of those concerns is the cost of litigation. Whilst some arguments may be academically interesting, occasionally they are not played out in court the grounds of cost. Equally, sometimes arguments are not made as they would not further the commercial objectives of the party making them. However, Network Homes does not seem to be a case where introspection or alternative methods of resolving disputes seemed to have any bearing on the conduct of the case.
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