Repair Disputes
Repair Disputes
Repairs is a common source of dispute between landlord and tenant.The repairing obligations will usually be set out in the lease. However, the applicaiton of the obligaiton may be debatable in th eparticaulr circumstances.
Leases often provide that the landlord is entitled to inspect the property and specify the required repairing works. The clauses usually state that if the tenant fails to undertake the works within certain time limits, the landlord may enter the property, do the works and recover the costs.
Difficult questions and disputes can arise as to whether and to what extent repairing obligations require a tenant to improve the premises. This is a question of degree and of interpretation in the circumstances. A tenant’s repairing obligations may in practice require an element of improvements and upgrade.
In the case of a lease of a second-hand building, tenants will frequently seek to have a schedule of condition attached, so as to limit their repairing obligations in the light of the pre-existing state of repair of the building.
In the case of a unit that is part of a larger building, there will usually be a management scheme for repairing the common parts under which “service charge” contributions must be made to meet the costs.
Landlord Remedies
In longer-term leases, the landlord is usually given a right to enter to inspect the state of repair and condition of the property. It is often provided that the landlord may serve a notice specifying the wants of repair. This is sometimes called a schedule of dilapidation. The landlord cannot specify repairs in the schedule of delapidations which are beyond the scope of the repair clause.
The matter can also arise upon the termination of the lease where the tenant is obliged to give back the premises in a defined state of repair. A schedule of dilapidations can prove expensive and onerous for a tenant.
If works are required to be undertaken under the repair clause and specified in the landlord’s notice, are not commenced and executed within the specified time limit, it is usually provided that the landlord can enter the premises, do the repairs and recover the cost as rent. Disputes may arise in relation to the scope of the notice.
Remedies for Breach
Failure to repair in breach of the repair clause constitutes a breach of the lease. The landlord may seek to forfeit the lease for non-performance. A landlord may, in theory, seek a court order of specific performance to compel the tenant to comply with its repairing obligation.
The landlord may be entitled to compensation for failure to repair. This is in effect, a claim for breach of contract.
Limits to Recovery
There is a limitation on the extent to which a landlord can recover damages for breach of a repairing covenant set out in the Landlord and Tenant Act.It applies to a lease of a tenement (i.e. principally a building to which land, if any, is ancillary. In this case, damages cannot exceed the amount by which the landlord’s interest in the property is diminished by the breach.
Where there is a want of repair, which is wholly or substantially due to wilful damage or waste, no damages are recoverable for a breach if it is shown that
- having regard to the ageing condition of the building, its repair in accordance with the covenant is physically impossible or
- having regard to its age, condition, character or situation, its repair would involve disproportionate expense, relative to the value of the building or
- having regard to its character or situation, it could not when so repaired be profitably used, unless it was reconstructed, rebuilt or structurally altered to a substantial extent.
Tenant Remedies
In some cases, the lease may place the obligation to repair on the landlord. It may or may not, depending on its terms, require the tenant to contribute to that costs of repair. Where the tenant is to contribute, its rights will usually be subject to making or tendering the relevant contribution.
A tenant may be entitled to obtain a Court Order requiring that the landlord repair. The Court has a measure of discretion. In some cases, failure to repair may involve a repudiation by the landlord of the lease, a contract entitling the tenant to terminate. Careful advice would need to be taken before such a course is taken.
Legislation entitles the tenant to surrender his lease, if the building is rendered inhabitable or unusable, destroyed or rendered uninhabitable. This may be excluded and usually is in most modern leases.
Set Off
The general common law principle is that a tenant cannot set off a claim against a landlord for failure to repair against the rents. There is an exception under the Landlord and Tenant Act. This step should not be taken without careful advice and after giving proper warnings and notifications to the landlord.
Where a landlord refuses or fails to execute repairs to a tenement which he is bound by covenant or otherwise by law to execute and has been called upon by the tenant to execute, and the tenant executes the repairs at his own expense, the tenant may set off the expenditure against any subsequent gale or gales of rent until it is recouped.
Where a set-off is made under this section against the whole or part of a gale of rent, the landlord entitled to receive the rent shall on receiving evidence of the expenditure of the amount so set off, be bound to give the like receipt for the gale of rent as he would be bound to give if the gale or part of the gale had been paid in money.