Rural Estates Newsletter Spring 2021 - Flipbook - Page 7
These confirmations are helpful to a landlord wishing to exercise general rights of entry
under a tenancy agreement but do not mean landlords will have carte blanche under the
guise of a general and non-specific right.
The installation of monitoring devices (remote bat detectors) and the placing of
surveyors’ reference stakes under the landlord’s rights of entry in the tenancies were
ultimately upheld; they were reasonable purposes. However, the digging of trial pits
and boreholes was not permitted at first instance and the landlord never sought to
appeal this.
Practical pointers
Rees v Windsor-Clive involved protracted, and no doubt expensive, legal arguments.
Avoiding this must be preferable: if you end up in court, something has probably gone
wrong early on.
• Get people talking early - if a tenant is tricky or a landlord has no rights of entry under
a tenancy this will be especially important. Agreeing licences with tenants to allow
for extra rights can be ideal.
• Understand what rights developers and/or promoters want, to determine whether
your existing rights are sufficient.
• Use opportunities when they arise – a succession or other tenancy event may allow
an opportunity to agree extra (and specific) landlord rights of entry. Doing this at a
time when development is not the main issue on the agenda can be a helpful way of
dealing with a potential future problem.
• Agree express rights where possible – especially where intrusive surveys will be
required. Relying on general and non-specific rights always leaves scope for dispute.
Case B – when land is ‘required’
An AHA landlord with planning permission can use a Case B notice to seek possession.
This notice to quit can be served where land ‘is required for a use, other than for
agriculture… for which planning permission has been granted under the enactments
relating to town and country planning’. Ideally, this statutory right can be combined
effectively with a tenancy provision allowing the landlord to serve a short (often three
month) notice to quit for non-agricultural purposes.
Whether the land was ‘required’ was also the subject of further and separate legal
argument in Rees v Windsor-Clive. The parties agreed that for the land to be ‘required’ it
had to be so required at the end of the period stated in the notice or within a relatively
short time thereafter.
Previous case law suggested that the landlord must have a firm and settled intention
to develop the land and a reasonable prospect of carrying out that intention. The land
need not be required by the landlord; it can be required for a developer satisfying the
above test (albeit legal questions about enforceability may arise where that developer
has yet to be identified at the time of service of the notice).
Rural Estates Newsletter
Spring 2021
7
