Leases nearly always give the landlord the right to enter the demised premises to inspect the condition of the premises and its state of repair. However, two recent cases, both involving Kwik Fit, have examined how far a landlord can go in carrying out investigations. In particular, the cases examine whether a landlord can carry out intrusive investigations to establish the extent, if any, of breaches under the lease.  

The Facts  

As mentioned above, the two cases both involved Kwik Fit although one case was heard in Scotland and one was heard in England. The English case is Heronslea (Mill Hill) Limited v Kwik Fit Properties.3  

The property was an old petrol station and the landlord was concerned that fuel may have leaked into the sub-soil. It therefore wished to carry out an “environmental investigation survey”, pursuant to a clause in the lease that gave it the right to enter the premises for the purpose of making a survey, and to inspect the premises. It wanted to drill 13 boreholes to a depth of five metres below ground and one to a depth of 20 metres, and obtain samples for geo-environmental assessments. Kwik Fit refused on the basis that the lease did not allow for such intrusive investigations and that it would disrupt its business.  

The Decision

The Court found that the lease did not entitle the landlord to enter the property, drill boreholes and take samples. The relevant question was whether the lease, on its proper interpretation, permitted the landlord to enter the premises to drill boreholes and take samples. It was clear that a reasonable person, having all the background knowledge that would reasonably have been available to the parties at the time the lease was executed, would not have thought so.  

Comment  

The decision turns on the meaning of the word “survey”. A reasonable person would not interpret it as meaning to carry out such disruptive surveys as envisaged by the landlord. There could potentially be a different outcome if the clause in the lease said “investigations” rather than “survey”. However, digging holes requires more than just a right to enter and inspect. Furthermore, the fact that there was only a suspected breach of covenant was another reason why the landlord could not proceed.  

Clarity in a lease is paramount. The tenant’s right to quiet enjoyment is something that the Courts strive to protect. The moral of the Heronslea story is that such issues need to be addressed at the time the lease is drafted. If it is likely that entry on to the land may be required to carry out detailed surveys and/or investigations, then that right needs to be reserved when the lease is executed.  

Would a similar outcome take place if say the landlord wanted to investigate the air conditioning system or some other mechanical and electrical system? A landlord may only be able to carry out such investigations by removing casings from equipment and this could be intrusive and disruptive. Again, if there is a suspected breach then perhaps the landlord will be unable to proceed. However, if there is an actual breach, say because the air con system is not working, then it may be permissible if the notice served identifies the breach and says that remedial works, to include removing covers and casings, are necessary. Much will, however, depend on the wording in the lease.

3 Heronslea (Mill Hill) Limited v Kwik Fit Properties Ltd [2009] EWHC 295 (QB)