It has long been established that a covenant to repair is not breached unless the condition of the premises has in some way deteriorated. If, on the evidence, the premises demised by a lease are, and have always been, in the same physical condition as they were when constructed, there is no disrepair. This rule applies whether a defect results from an error in design or past workmanship, or for any other reason.
The recent county court decision in
The judge reminded the parties that a landlord gives no implied warranty of fitness when letting a building. In addition, neither a landlord nor a tenant who enters into a covenant to repair in the ordinary form undertakes to do work to improve the premises in any way. The tenant argued that the landlord’s repairing covenant was more extensive than a mere covenant to repair, but the judge disagreed.
The tenant argued that the landlord was liable in nuisance on the ground that there was a continuing nuisance that the landlord had adopted when it bought the reversion from the original builder. The judge rejected the tenant’s arguments, ruling that, as in the case of a buyer where the rule is “let the buyer beware”, so in the case of a lease the rule is “let the tenant beware”. The tenant must take the property as it finds it and put up with the consequences.
In all the cases cited by the tenant where a landlord was held liable in nuisance, the nuisance – involving blocked pipes or gutters – commenced after the grant of the lease, and the principle of “let the tenant beware” did not apply. Therefore, in the absence of an effective covenant to repair, the judge ruled that the tenant was unable to rely upon the law of nuisance to impose an obligation on the landlord to rectify faulty construction work by its predecessor. If the original landlord was not liable, then neither was its successor.
This case serves as an important reminder that, in the absence of legislation to the contrary, parties are free to let and rent poorly constructed premises and to allocate the costs of rectifying any defects as they see fit. This principle applies to the condition of the premises themselves, and to other parts of the building in which the premises are situated. Consequently, tenants must either extract warranties to protect themselves or satisfy themselves that premises are fit for their intended use and occupation in all relevant respects.
Allyson Colby is a property law consultant
