The parties to a lease of a building in multiple occupation commonly undertake different repairing responsibilities. In essence, the landlord usually undertakes to repair the structure and exterior of the building, and the common parts. In return, the tenant accepts responsibility for internal non-structural repairs. However, the words “structure’” and “exterior” do not have any fixed meaning and take their sense from the particular circumstances and document in which they are found. The recent Lands Tribunal decision in Sheffield City Council v Oliver [2008] PLSCS 276 illustrates the practical problems that can arise when seeking to interpret these words, especially if the provisions in a lease are contradictory or unclear.
The question arose as to whether the external windows of a maisonette were part of the structure and exterior of the building. The answer was important because the landlord was intending to remove the existing single glazed metal windows and replace them with double glazed UPVC units, despite the tenant’s objections, at the tenant’s cost.
The tenant’s 125 year lease included the windows in the exterior walls of the property. However, the landlord had excepted and reserved the parts of the structure and exterior that it was obliged to keep in repair. At first sight, therefore, if the windows formed a part of the structure and exterior of the building that the landlord was obliged to repair, these provisions appeared to contradict each other. However, the lease went on to exclude the exterior windows from the scope of the exception and reservation.
The effect of these provisions was, therefore, that the windows belonged to the tenant. None the less, the landlord took the view that it was responsible for the windows because it had covenanted to repair and, if desirable, improve the structure and exterior of the building.
The tenant relied upon provisions in the lease that obliged it to keep the premises in repair (except for the parts that the landlord was liable to repair), and on the long list of items for which it was responsible, which specifically referred to the windows in the property.
The tribunal upheld the landlord’s claim. In previous cases the courts have held that, in the case of a house, the meaning of the word “structure” is not circumscribed by whether an item is load-bearing. The structure of a house consists of the elements that give it its essential appearance, stability and shape. Consequently, the external windows did form part of the structure and the exterior of the building. The judge hoped that the landlord would, however, restrict the work for which the tenant was to be charged to no more than a limited extension of works of repair.
The court may take a different view in the case of commercial property. However, draftsmen would be well-advised to ensure that repairing responsibilities do not clash with each other and are spelt out clearly in the lease.
Allyson Colby is a property law consultant