Repairs
Repair Covenants
The Landlord and Tenant Act applies to vary repair covenants in leases of tenements (buildings). Damages/compensation is not to exceed the amount by which the value of the reversion, i.e. the landlord’s future interest in the premises, is diminished. This does not apply where the want to repairs due to wilful damage or waste.
Damages are not recoverable for breach of a repair covenant in relation to a building, where having regard to the age and condition of the premises,
- its repair is physically impossible or
- having regard to the age condition character and situation of the premises, its repair would involve expenditure which is excessive in proportion to the value of the premises or
- having regard to the character and situation of the premises, it could not, when so repaired, be profitably used or could not be used unless it is rebuilt, reconstructed or structurally altered to a substantial extent.
Other Repair Issues
The restriction on damages for repair does not apply to the breach of landlord covenants to repair. These are assessed on a normal basis.
Where a tenant has permitted a property to become unusable by failing to comply with repair obligation in the lease, this may be the basis for refusal of a new lease under the statutory right of renewal.
Generally, a tenant does not have the right to undertake repair works to improve a building beyond the state which it was at the commencement of the tenancy. However, the wording of the lease covenant will determine the position.
State and Condition
The common law general position is that the landlord makes no implied warranty or promise regarding the state and condition of the premises. In the same way as a seller of land, the default position is that a landlord may let premises in their actual state and condition.
However, there has been some evolution in this position over time. A lessor of newly built premises may be liable for breach of an implied warranty as to the building’s standard of construction.
The courts have imposed a duty of care on housing authorities (the local authority) in letting properties to local authority tenants. They have been prepared to imply a warranty by the local authority that the property is fit for human habitation at the commencement of the lease. Some of these have been reversed by legislation in particular circumstances.
Residential Repairs
The Residential Tenancy Act provides implied duties on landlords in respect to the repair of premises and repair of the common parts. See the separate chapters in that regard.
The Housing Act (Standard for Rented Housing Regulations) prescribe minimum standards in relation to residential accommodation. See the separate chapter in relation to this legislation, which is mandatory.
Save where the tenant has damaged the dwelling beyond normal wear and tear, the landlord shall undertake repairs to ensure the structure is in compliance with the Regulations.
The tenant is to maintain the interior and fittings in the same condition that they were at the commencement of the tenancy.
Repair and Set Off
Generally, a tenant cannot withhold rent by reason of breach of landlord’s covenants. He cannot deduct monies expended in undertaking the landlord’s obligations against the rent.
Deasy’s Act provides that claims and demands by the landlord in respect of rent are subject to deduction and set-off in respect of all just debts due by the landlord to the tenant. This applies only to a liquidated (legally determined)sum. It cannot be used in the case of damages; they must be determined by courts.
There is a limited exception, subject strictly to the conditions set out below. The landlord is to reimburse tenant expenses proved to be incurred in undertaking repairs for which the landlord is responsible under the Act in the circumstance where the landlord has failed to carry them out at the tenant’s request and deferral would have caused a risk to health and safety of the tenant or the lawful occupants or a caused significant reduction in the quantity of their living environment.
The 1980 Act provides that where a landlord refuses or fails to execute repairs to a tenement (building) which he is bound to undertake, and the tenant executes repairs to its own expense, the tenant may set off expenditure against subsequent rent too until it is recouped. The landlord must be bound by covenant to perform the repairs. If the tenant makes an allowance for the expenditure incurred, the landlord must give a receipt for the rent as obtained.
It may also be possible for a tenant who is sued for rent to raise a claim for damages by way of set-off. This is a procedural matter. It is possible to raise a counterclaim arising out of the same circumstances and facts in litigation.
Waste
A tenant is liable for waste under common law. See the separate section on interests for life.
Under Deasy’s Act, tenants under a lease for life renewable for ever are liable for fraudulent or malicious waste. Ordinary tenants may not open mines, quarries or cut trees without landlord consent unless the lease is for this purpose.
Surrender and Destruction
While there is no covenant in the lease to repair, the tenant may surrender the lease if the premises are destroyed or made uninhabitable through fire or other inevitable accidents not due to the tenant’s fault.
In the last 40 years, the English courts revised the previous rule that frustration could apply to leases. See the separate chapter under contract law on frustration.
Improvements
Where a tenant proposes to make improvements, he must serve an “improvement notice” on the landlord stating the proposed works, the cost, and whether planning permission is required. The landlord may within one month serve a notice consenting to the works, undertaking to do the works himself or objecting and specifying the grounds of objection. If the landlord agrees to do the works, he may specify an increase in rent, either specific or to be determined by the Court, in respect of the value of the works.
If the landlord does not serve an improvement undertaking or objection within one month, the tenant is entitled to do the works within one year (subject to other compliance obligations such as planning permission etc.). The tenant will be entitled to compensation on the eventual termination of the lease in this situation, to the extent the property has increased in value as a result of the works.
Where the landlord agrees to do the work, the tenant may accept this agreement or withdraw the improvement notice or object to the increase in rent specified in the undertaking. The tenant may apply to Court under certain situations as an alternative to withdrawing the improvement notice. An improvement notice is not obligatory, but failure to serve it runs the risk of a tenant losing entitlement to compensation.
Compensation for Improvements
Where a tenant terminates a lease of a building, he may be entitled to compensation from the landlord for improvements made to the property by the tenant or his predecessors as tenants. This does not apply where the tenant himself terminates the tenancy by surrender or where it is terminated for non-payment of rent or non-compliance with obligations.
The amount of the compensation is agreed between landlord and tenant or in default of agreement, is the capitalised value of the addition to the letting value at the termination of the tenancy as the Court determines to be attributable to the improvements. The Court has regard to the length and duration and life of the improvement.