Landlords Must Take Care over Carrying out Surveys; PROPERTY BRIEFING

Article excerpt

Byline: RICHARD FREEMAN-WALLACE

A LANDLORD has no right to carry out an intrusive survey, even though the lease states he can enter the property.

The recent case of Heronslea (Mill Hill) Ltd v Kwik-Fit Properties Ltd (February 2009) clarified that the landlord's right of inspection did not extend to sinking boreholes.

The case began with a new landlord contacting an existing tenant to state that it planned to drill 13 boreholes below ground to five metres, and one 20-metre borehole over two days. The work was part of an environmental survey to find out if there was contamination at the site. The premises had once been a petrol station.

Kwik-Fit, the tenant, refused to allow the landlord Heronslea access to its premises. The landlord argued that the lease, which allowed for a survey and drawings, included not only valuation surveys but environmental investigations.

The High Court ruled that the definition of survey did not cover the landlord's proposals and ruled in favour of the tenant Kwik-Fit. If Heronslea had been proved correct in its interpretation, a 'survey' could have extended to a geological survey prospecting for minerals, which would have caused even more disruption than the environmental investigations.

The principles behind the interpretation of contracts and relevant case law were all considered by the High Court in coming to their verdict. Clarity in lease wording and structure are crucial components of covenants, and if not worded correctly, formal documentation can impair a tenant's reasonable rights of peaceful existence at its premises. …