Repairing obligations

Citation

Waterson, G. and Lee, R. (2001), "Repairing obligations", Property Management, Vol. 19 No. 4. https://doi.org/10.1108/pm.2001.11319dab.009

Repairing obligations

Repairing obligations

Fluor Daniel Properties Ltd v. Shortlands Investments Ltd (2001) The Times 21 February 2001

This is an interesting case, relating to the standard of works of repair which the landlord is entitled to carry out to the demised premises where the landlord has covenanted to carry out repairs and the tenant(s) had covenanted to contribute to the cost by way of service charges. Unfortunately, since this is quite a brief law report, neither the precise terms of the respective covenants nor any detailed description of the works is provided. However, applying the earlier cases of Plough Investments Ltd v. Manchester C. C. [1989] 1 EGLR 244 and Holding and Management Ltd v. Property Holding and Management Trust plc. [1990] 1’EGLR’65, Blackburn J. made it clear that although in such circumstances it is for the landlord to decide how the works. are to be carried out and "the landlord [is] not to be criticised merely because it could be shown that the relevant materials, works or services could have been provided or performed at lower cost", nonetheless the landlord was not necessarily entitled to pass on the full cost of the works to the tenant(s). In the view of the judge, both landlord and tenant have an interest in the standard of repairs which are carried out. In order for the works to come within the terms of the repairing convenant in the first place it must be shown that the fabric of the demised premises "suffered from some defect such that repair, amendment or renewal was reasonably necessary; the condition [of some part or parts of the demised premises] had to be such as to be no longer reasonably acceptable, having regard to the age, character and locality of the premises, to a reasonably minded tenant of the kind likely to take on lease of that building. However, [in this case, at least] the landlord [also] had an interest, separate from that of the tenants, in ensuring that the building was properly serviced so as to maintain its reputation and attractiveness to tenants, and to justify the high rent per square foot which it commanded. If [in such circumstances, said the judge] the landlord wishes to carry out repairs which went far beyond those for which the tenants, given their more limited interest, could fairly be expected to pay, then, subject to the terms of the lease(s), the landlord had to bear the additional cost himself."

As to whether the landlord is entitled to seek release from a repairing covenant on assigning the reversion, under the provisions of the Landlord and Tenant (Covenants) Act 1995, where the covenant was expressed to create an obligation which was personal to the original landlord and not to be binding on the landlord's successors in title, see: BHP Petroleum Great Britain Ltd v. Chesterfield Properties Ltd (2001) The Times, 30 March 2000; [2001] EGCS 31, where Lightman J. held that since such a covenant was not a "landlord covenant" for the purposes of the 1995 Act, then the original landlord had no right to request its release under the provisions of that Act.

As to the difference between the effect of the landlord's repairing obligations under s. 1 of the Landlord and Tenant Act 1985, which are essentially contractual, and those imposed by s. 4 of the Defective Premises Act 1972, which is essentially a provision imposing something in the nature of public liability, see: Sykes v. Harry (2001 ) The Times, 27 February 2001; [2001] 17 EG 221; where the Court of Appeal held that the landlord, by failing properly to maintain a gas fire in the premises, was liable for injuries caused by carbon monoxide poisoning. Potter L.J., delivering the unanimous decision of the court, said that the Judge at first instance had been "in error in equating the task of the claimant in establishing a breach of duty under s. 4 [of the 1972 Act] to demonstrate notice of the actual defect giving rise to the injury". The landlord had been aware in general terms of the need for, and of the lack of, servicing of the gas fire in question. "By failing to repair or maintain the gas fire over a substantial period prior to the date of the claimant's injury in the light of his knowledge that the tenant was not having it serviced, the defendant was in breach of his duty under s.4 of the 1972 Act."