Landlord refurbishing entire commercial building seeking access to demised office to replace rusting window frames with double-glazing units – Tenant contending that work did not involve “repair” – Whether mandatory wording of access clause precluded grant of interlocutory relief
The defendants occupied the upper three floors of a nine-floor office block in Newcastle upon Tyne under two leases, one expiring in June 1998 and the other in March 1999. The remaining floors were let to a government department. The landlord company was in receivership and the building was in poor condition. In particular the steel window frames, each holding a single pane, were corroded because of inadequate rust-proofing during installation. Anxious to sell, the receiver had been advised that sale was not possible without major refurbishment. Each of the three leases provided: (i) that the landlord would keep the structure (including the window frames) in good and tenantable repair; (ii) that the tenant should bear the cost of such repair as a service charge item; (iii) that the tenant should permit the landlord at all reasonable times to enter “to effect repairs to the building” (the access covenant). In 1995 the receiver, announcing a general refurbishment programme, estimated to cost about £400,000, stated that the frames would be replaced with double glazing-units at an additional cost of £6,400.
The lessee government department was willing to afford access for this purpose, but the defendant tenants objected on the ground that the proposed work did not amount to “repairs” within the meaning of the access covenant. In 1996 the receiver awarded the refurbishment contract, which included the intended window replacements, to a firm of builders. Faced with the defendants’ continuing objections, the receiver sued,inter alia, for a declaration that he was entitled to access, and moved for an interlocutory order that access be afforded forthwith.
Held The receiver’s motion was allowed.
1. The intended works could not be described as renewal rather than repair, it being well established that repair consisted of renewal of parts of the entirety: see Lurcott v Wakely and Wheeler [1911] 1 KB 905. Furthermore, since damage by corrosion had in fact occurred, such works amounted to repair notwithstanding a consequent improvement to the original design: see Quick v Taff-Ely Borough Council [1986] 2 EGLR 50; Elmcroft Developments Ltd v Tankersley-Sawyer [1984] 1 EGLR 47. For that reason the tenants could not rely on Post Office v Aquarius Properties Ltd [1987] 1 EGLR 40 (CA), which turned on the exceptional finding that dysfunctional components (porous bricks) had not in fact been damaged by the flooding complained of.
2. Although the courts were reluctant to make interlocutory orders of a mandatory nature, such considerations barely applied to the access covenant which, though semantically mandatory, obliged the tenant to do little more than open the door.
3. There were no serious discretionary factors weighing against the order seeing that the defendants: (a) would not be badly inconvenienced; and (b) would only bear one-third of what was in any case a minute fraction of the entire refurbishment cost. Accordingly, the receiver could not be criticised for engaging the builder while the dispute was unresolved.
Martin Rodger (instructed by Lovell White Durrant) appeared for the plaintiff; Wayne Clark (instructed by Keenlyside & Forster, of Newcastle upon Tyne for the first defendants, and by Ashurst Morris Crisp for the second to fifth defendants) appeared for the defendants.
