Where premises let by a lease comprise part of a building, it is essential for landlords and tenants to agree how repairing obligations will be allocated between them. Unfortunately, however, it is not always easy to capture the level of detail required to prevent disputes over repairing obligations, which frequently turn on the interpretation of a particular word or phrase.
In Pattrick v Marley Estates Management Ltd [2007] EWCA Civ 1176; [2007] PLSCS 229 the Court of Appeal had to decide whether a cloister, which consisted a floor, three walls, a colonnade and a concrete roof, was a “building” for which the landlord was responsible or whether liability for its repair should be attributed to the tenant.
The premises formed part of a mansion house, which had been converted into dwellings and let on long leases. The lessees all held shares in a company that owned and managed the development. They were liable to repair the premises that were let to them, unless they formed part of the main structure of the houses or buildings in the development.
The cloister formed part of the premises that were let to the tenant and had originally formed part of a chapel that provided protection from the elements. The chapel had ceased to exist and the cloister needed costly treatment and repairs. The trial judge decided that it would be unreasonable to burden all the lessees with the cost of the repairs and ruled that liability for repairing the cloister lay with the tenant.
The Court of Appeal disagreed. The cloister was man-made; if it was not a building, it was hard to know what it was. The development consisted of 17 dwellings. Repairs to some of them were likely to be expensive and of direct benefit to some only of the tenants. This was commonly the case with buildings in multiple occupation, and there was no reason to believe that the tenant’s service charge contribution, which was the highest attributed to any lessee, had failed to take account of this.
Their lordships also had to consider who was responsible for decorating and repairing the Georgian windows that formed part of the premises demised to the tenant. The Court of Appeal decided that the landlord was responsible because it was liable to decorate the exterior, which included the wood and ironwork. However, the tenant was liable to repair them, because windows were not listed in the lease among other items included in the main structure of the building. The court recognised that this might trigger further disputes about liability for any work that may be required during redecoration and suggested that the tenant should be liable for repairs that needed to be made by a carpenter.
Disputes like this are usually very costly, especially if the unsuccessful landlord is the owner of residential premises that are subject to statutory service charge controls that can be used to prevent the landlord from including the cost of the litigation in the service charge recovered from the tenant.
Allyson Colby is a property law consultant
