A Kent landlord has lost its High Court claim against a former tenant for the costs of replacing an asbestos-ridden roof at its industrial site.
Riverside Property Investments alleged that, under a “repair and maintenance” covenant in the lease, Blackhawk Automotive was liable to pay the costs of replacing the roof at the Brookfield Industrial Estate unit in Leacon Road, Ashford.
However, the court said that Blackhawk could put the roof, which was made of corrugated asbestos cement sheets, into the covenanted condition by carrying out repair works rather than undertaking a complete replacement.
Judge Peter Coulson QC said: “If there are two ways in which the covenant might properly be performed, the tenant is entitled to choose which method to utilise. Since the tenant is almost certainly going to choose the least expensive option, he cannot be criticised for so doing.
“That position is no different to the situation concerning a claim for defects under a building contract where proper remedial works can be carried out in one of two ways. All other things being equal, the cheapest option will be appropriate.”
Blackhawk’s five-year lease of the light industrial unit expired in September 2002. By the lease covenant, it promised to yield up the premises “in good and substantial repair and condition in accordance with the covenants hereinbefore contained”.
Before it vacated the site, Blackhawk carried out extensive roofing repairs, replacing damaged cement sheeting with new fibre cement sheets and replacing all roof lights and fixings. It claimed that the roof was “in proper repair” on 28 September 2002.
However, Riverside sought to recover its costs on the basis that it had had to replace the roof entirely with new asbestos-free sheeting.
Although dismissing Riverside’s claim, Judge Coulson said that the landlord was entitled to recover certain sums under terms in the lease requiring Blackhawk to pay all “proper costs and expenses” incurred in the preparation of a schedule of dilapidations and in connection with the enforcement of its covenants.
Riverside Property Investments Ltd v Blackhawk Automotive Technology and Construction Court (Judge Peter Coulson QC) 8 December 2004.
References: EGi Legal News 20/12/04
