In November last year the High Court issued a reminder as to the need for clarity in drafting tenancy agreements.
This was particularly timely as property owners respond to the ongoing lessons from Grenfell and consider the recent legislative changes, in which we see the Government seeming to seek to improve standards in rented properties.
Access for repairs has been the focus for most landlords in the past but improvement works are coming more to the fore as landlords consider such matters as fire safety, energy efficiency, HMO licensing and most recently the Homes (Fitness for Human Habitation) Act both as part of their routine management, as tenancies and licenses expire, and renewals are sought.
In – Network Homes Ltd v Harlow (2018) EWHC 3120 – Henry Carr J reviewed a decision in which HHJ Luba QC had ruled that the terms of the tenancy agreement did not give Network Homes permission to undertake improvement work to the property.
Briefly: Network Homes (a charity providing social housing) had wanted to install new fire doors to its flats as a result of a fire safety inspection. They applied for an injunction to permit the works after Mr Harlow had refused access.
The clause in dispute provided access for essential maintenance, inspection and repair. The second sentence stated that such works included treatment programs for pest eradication, improvement work and access to repossess.
Henry Carr J, despite criticising the poor drafting of the clause, overturned the first decision, finding (amongst other things) that the court could more easily depart from the normal meaning of the words when a document is poorly drafted. (Author’s note: As an aside, this shouldn’t be taken as justifying poor drafting!)
As a result, the landlord was able to undertake the work, despite, or perhaps because of, poor drafting in the tenancy agreement. That said, it came after a lengthy period of delay and the not insubstantial costs involved in two court hearings. Such delay and costs could be avoided by clearly drafted agreements.
There are circumstances where work needs to be undertaken with tenants in situ, for example, ahead of a licence renewal, further, there may be benefits to undertaking works in this way as it can minimise the void period between tenancies. It is therefore essential to carefully review the agreement, perhaps obtaining specialist advice on the particular circumstances, before scheduling works.
It is also an opportune time to review tenancy agreements, indeed all the tenancy related documentation, to ensure that they are compliant with all the changes we have seen in the last year and as far as one can, future proofing with a view to legislation soon to come into force.
Helen Thomas is a senior associate and member of the Dispute Resolution team. For more information on this, or any tenancy related matter please contact Helen on 01872 265100 or email drt@stephens-scown.co.uk.