Windsor-Clive, Earl of Plymouth v Rees  EWHC 1008 (Ch);  4 WLUK 348
Landlord’s right of access – derogation from grant – quiet enjoyment – construction – contra proferentem
The Claimant landlord (L), sought an injunction to prevent the defendant tenant (T) from interfering with his right of access to T’s demise under two farm tenancies. The tenancies reserved to L a right to enter the demise “at all reasonable times for all reasonable purposes” and “any time, for the purposes of inspecting the premises”, making “roads sewers or drains” or for “any other purpose connected with his estate”. L had applied for planning permission to develop his adjoining land and wanted to undertake a number of surveys from the demised land, including a bat habitat survey. T refused access and L applied for an injunction, arguing that the said reservations gave L extensive rights of access. T argued that L’s construction constituted a derogation from grant and interference with T’s right to quiet enjoyment.
Mr J Keyser QC refused L’s application. Upon a review of the authorities he summarised the relevant principles as follows:
1) An exception or reservation will, if possible, be construed in such a manner as to preserve its validity.
2) Therefore the court will, where it is possible to do so, construe an exception or reservation as restrictively as is required to avoid a derogation from grant or a conflict with the covenant for quiet enjoyment.
3) There is no further rule that a reservation is to be construed restrictively against a landlord.
4) However, the application of the standard principles of construction, including the requirement to have regard to all of the provisions of the instrument and to the principal purpose and subject matter of the instrument, will tend to lead the court to expect that substantial qualifications of the rights to exclusive possession and quiet enjoyment of the demised premises will appear clearly from the lease. Further, apparently broad and unqualified words in reservations may, on closer examination, be found to have a more restricted meaning when read in their immediate or wider textual context.
5) If it is not possible to construe an exception or reservation in a manner consistent with the ‘the irreducible minimum’ implicit in the grant itself, it will be struck down as being repugnant to the lease.
6) The contra proferentem rule operates only if the exception or reservation is ambiguous, in the sense that the court is unable to decide on its meaning by the use of the materials usually available for interpretation.
7) By reason of the principles of construction set out above, the contra proferentem rule can only apply if the court cannot otherwise decide among two or more constructions, all of which are consistent with the irreducible minimum consistent with the grant itself. This is because: (a) if any possible construction of the reservation would be inconsistent with the irreducible minimum implicit in the grant itself, the reservation will have been struck down as repugnant to the grant; and (b) if, of two possible constructions of the reservation, one would be consistent with the irreducible minimum implicit in the grant itself and one would not, the court will have chosen the former in accordance with the principles set out above.
8) Once the court is forced to have recourse to the rule, the correct position is that the reservation operates as a re-grant by the tenant and therefore the reservation falls to be construed against the tenant, who is considered to be the proferens.
The judge held that “reasonable purposes” cannot extend to all purposes that are reasonable merely in the landlord’s interests. In the context of a lease, the obvious canon of reasonableness is the relationship of landlord and tenant. The “reasonable purposes” are reasonable purposes concerned with the parties’ rights and obligations under the tenancy agreement and L’s reversionary interest in the demised land. Further, the right was one of entry; anything that involved significant interference with use of areas of the land or intrusion below its surface, such as digging of excavations, the sinking of boreholes and the erection of structures would not be within the scope of the reserved rights.
The judge held that in this case T was not likely to deny access to L for purposes that were established as being lawful. Therefore the necessary condition of a quia timet injunction, namely a strong probability that the defendants would infringe the claimants’ rights, was not satisfied.