What is an enter & repair clause?
An enter & repair clause is a clause in a lease which allows the landlord – or requires the tenant to permit the landlord – to do four things, in this order:
■ Enter the property for the purposes of inspecting it;
■ Serve a notice on the tenant specifying items of disrepair which the landlord finds on that inspection, for which the tenant is liable, requiring the tenant to do those works within a specified time;
■ If the tenant fails to do those works in that time, to enter the property again, a second time, this time to actually carry out the works itself;
■ Recover the cost of doing those works from the tenant, as a debt (this last word is important).
Such clauses are also known as Jervis v Harris clauses, after the landmark decision in which their potency was recognised, Jervis v Harris [1996] 1 EGLR 78.
What is the purpose of an enter & repair clause?
The superficial answer is that the purpose is to let the landlord enter and repair the premises. That, however, is true but trivial.
The real purpose of an enter & repair clause – and what gives it its “bite” – is that, if properly drafted, it can provide a landlord with a self-help remedy in relation to the tenant’s disrepair which avoids both of the statutes that are meant to protect the tenant from oppressive claims in relation to dilapidations.
The first such statute is the Leasehold Property (Repairs) Act 1938. In relation to a lease of a term of seven years or more with at least three years (or more) to run at the date of a claim to enforce a right to damages in respect of breach of a repairing covenant, the landlord must, if the tenant serves a notice seeking the benefit of the 1938 Act, go through the process of obtaining the permission of the court to enforce such claim. That permission will be given only if the landlord can squeeze within at least one of five “portals” defined in the Act, each of which comes down to a question of whether the claim is really urgent, necessary and just or equitable.
It is a right bore for a landlord to have to do this, but an enter & repair clause gets around the whole tortuous process. How? Simple. A claim for money spent on repairs by the landlord under an enter & repair clause is a remedy based not on a claim for damages but on a claim for debt.
The same goes for section 18(1) of the Landlord and Tenant Act 1927, the first limb of which, as is well known, provides that damages available for breach of a repairing covenant are limited to the diminution in the value of the reversion caused by the breach, and the second limb of which says that no such damages are recoverable at all where the property is to be pulled down or where structural alterations are to be carried out at the end of, or shortly after, the end of the term (so as to “supersede” the need for any repair works of the type which the tenant is in breach for not doing).
Again, though, section 18 relates to claims for damages.
A landlord who relies on an enter & repair clause is not enforcing a claim for damages but is pursuing a contractual debt.
In this way, Jervis v Harris clauses slip around those two major statutory restrictions on the landlord’s ability to obtain compensation for breach of a repairing covenant: and this is why they are so popular with landlords and so dangerous for tenants. People should probably pay them more attention.
What are the limitations on an enter & repair clause?
The limitations relate to the drafting. For instance, in most cases, the drafting will limit the scope of the clause to breaches of repairing covenants. That means that failures to decorate (which are often dealt with separately and which anyway are subject to a right to relief under section 147 of the Law of Property Act 1925) and failures, for instance, to reinstate alterations, will not be covered by the clause. Therefore they will not be properly the subject of a landlord seeking to reclaim the cost of such works as a debt.
What should a landlord’s notice under an enter & repair clause specify?
Depending on the drafting of the clause, it should specify the items of disrepair at the premises and require the tenant to remedy those items of disrepair.
It is usually not necessary or desirable also to specify the works which the tenant is required to carry out in order to remedy that disrepair.
One of the reasons for this is that if the tenant fails to carry out the works and the landlord does so in default, the landlord will be stuck with that method of remedy, which it may find sub-optimal once it effects its second re-entry and begins the process of carrying out the works.
If the enter & repair clause requires a notice to be served on the tenant specifying the breach, is such a notice a pre-condition of recovering the cost of repair as a debt?
It will depend on the drafting of the particular enter & repair clause, but in most cases the answer will be “yes”.
This is because the landlord’s right to enter the second time to do the works itself will usually – should usually – be expressed as dependent on the tenant not having carried out the work itself, which it could only do if it had notice of what the landlord was saying amounted to the breaches in relation to repair.
If the second entry and the carrying out of the works is not under the terms of the enter & repair clause, then it may well amount to a breach of the tenant’s right to quiet enjoyment, a trespass and a derogation from grant.
What are the main advantages to a landlord of using an enter & repair clause?
The pros of using an enter & repair clause include the fact that it means that the works will be done to the satisfaction of the landlord – which may be particularly important if adjoining premises are affected detrimentally by the disrepair; there is no faff with the 1927 or 1938 Acts; and that as long as the work specified in the landlord’s notice is properly within the scope of the tenant’s repairing covenant, the works are done at reasonable cost and to a reasonable standard and the landlord does not physically stay on the premises longer than is reasonably necessary, the tenant is likely to find that attempts to be obstructive (such as by refusing access or refusing to agree the logistics for the landlord carrying out the works) are going to be given pretty short shrift by the court when a landlord seeks an injunction to restrain those acts of obstruction.
In other words, enter & repair clauses usually do what they say on the tin.
What are the main disadvantages to a landlord of using an enter & repair clause?
The main con for any landlord using an enter & repair clause is that it is exposed to the risk of carrying out the works and incurring their expense and then only later finding out that it has to counter arguments from the tenant to the effect that the process was not followed properly and the claim on the debt is therefore invalid; or that the work which the landlord has (already) done is outside the scope of the tenant’s repairing obligations; or that it was done badly or at a cost which is unreasonable.
This is a major pain for the landlord, having already taken the risk and incurred that expense.
What should a tenant do in response to a notice under an enter & repair clause?
Actually, in many cases the most sensible response of a tenant to a properly formulated notice under a well-drafted enter & repair clause is to do the work itself: at least then the tenant will not run the risk of having to pay for a cost of carrying out those works determined by a method chosen by the landlord which the tenant could have done for less.
This is so even if the tenant believes that the disrepair, though something for which it is liable and though falling within the scope of the enter & repair clause, does not really need doing yet or it actually makes no commercial difference to the landlord whether it is done or not. These are not usually legally relevant considerations (because section 18 and the 1938 Act do not apply).
What if the notice gives the tenant two months to carry out the works and the tenant makes no efforts by the end of the first month? Can the landlord do the works then or does it have to wait?
Again (as ever) it depends on the drafting of the enter & repair clause.
If the drafting is such that the tenant has two months to do the work, then it must be given that two months. Strict compliance with the terms of the enter & repair clause is usually required for the key element of the landlord’s recovery of the cost of works as a debt to be achievable.
If, on the other hand, the enter & repair clause requires the tenant to carry out the works immediately on receipt of the notice and the right of the landlord to effect to second re-entry is specified
as arising on the tenant’s failure to do that (start immediately), the landlord will indeed be able to telescope the timetable with an immediate second re-entry.
Landlords need to be careful about the drafting of enter & repair clauses because generally speaking they are construed against the landlord, not surprisingly given that they imbue the landlord with substantial powers: see Amsprop Trading Ltd v Harris Distribution Ltd [1997] 2 EGLR 78.
Checklist
■ What is an enter & repair clause?
■ What is the purpose of an enter & repair clause?
■ What are the limitations on an enter & repair clause?
■ What should a landlord’s notice under an enter & repair clause specify?
■ If the enter & repair clause requires a notice to be served on the tenant specifying the breach, is such a notice a pre-condition of recovering the cost of repair as a debt?
■ What are the main advantages to a landlord of using an enter & repair clause?
■ What are the main disadvantages to a landlord of using an enter & repair clause?
■ What should a tenant do in response to a notice under an enter & repair clause?
■ What if the notice gives the tenant two months to carry out the works and the tenant makes no effort by the end of the first month? Can the landlord do the works then or does it have to wait?
Jonathan Seitler QC is a barrister at Wilberforce Chambers
