If a tenant is granted a written lease, what repairs is he liable for and what express covenants is he likely to find?
The subject of covenants provides a field as full of dangers as any field could be for the lawyer or the surveyor. We are concerned here with only a small part of the subject, namely express covenants to repair. (It should be remembered that a large number of implied covenants exist to place repairing covenants on the landlord: for example, section 11 of the Landlord and Tenant Act 1985 — formerly section 32 of the Housing Act 1961.)
Express covenants to repair are rarely absent from a lease. Such covenants may be on the landlord or the tenant. A particularly common type of covenant is one by the tenant to “put the premises in repair” or “deliver up premises in repair” at the end of the term. The wording of a covenant to repair may of course be in an infinite number of forms, but certain commonly worded covenants should now be examined, for to understand them helps not just with the same or similar wording but also with other more elaborate variations on that wording.
(1) “To keep the premises in repair throughout the term”
A covenant in these terms will be breached if, at any time throughout the term, the premises fall out of repair, and the lessor may thus claim damages for any damage to the reversion during the term. If the premises are out of repair at the start of the term, then the tenant must put them into repair.
It is frequently the case that there is a covenant to “keep and leave” in repair. This does not affect the extent of the tenant’s obligation during the term and his obligation to give up the premises at the end of the term in repair — the former term embraces the latter. Having the additional word “leave” does, however, have some effect in giving the landlord two possible courses of action against the tenant: one for failing to repair during the term and the other for failing to leave in repair.
(2) To repair defects within a specified time
Often this covenant requires notice to be given by the landlord to the tenant for the latter to put the premises in repair within a specified time. This covenant is often coupled with a covenant for the tenant to allow the landlord’s agents to enter to view and assess the state of repair of the demised premises. The covenant to repair a defect after notice is separate from a general covenant to repair; any disrepair may be responded to by the landlord in the form of issuing proceedings for the disrepair as opposed to issuing a notice under the alternative covenant.
(3) To “put in repair”
The tenant may covenant to “put in repair” at the beginning of the lease. In those circumstances it has to be decided how quickly the covenant has to be performed, as well as the standard of repair to which the premises must be put. Sometimes the word “forthwith” may be used, and it was held in Burgess v Boetefeur (1844) 7 Man & G 481 that this means with “reasonable celerity”. Other terms must be viewed in a commonsense manner.
Standard of repair
What is the meaning of “good habitable and tenantable repair”? A covenant to “repair” is generally qualified by one of these three adjectives. Lord Esher in Proudfoot v Hart (1890) 25 QBD 42 defined “good and tenantable repair” as:
such repair as having regard to the age, character, and locality of the house make it reasonably fit for the occupation of a reasonably minded tenant … the state of repair necessary for a house in Grosvenor Square would not be necessary for a house in Spitalfields.
What happens, therefore, to a house in an area which was once salubrious but has become run down over the years? The question was considered in Calthorpe v McOscar [4] 1 KB 716. It was held that in deciding the standard of repair the court must look at the standard of repair required at the time when the lease was created and that meant having regard to the age, character, and ordinary use of the premises at that previous time:
. . . In so far as repair can make good or protect against the ravages of time a nd the elements, it must be undertaken: — per Atkin LJ:
The standard of repair is not, therefore, lowered by a deterioration in the class of tenant likely to use the premises.
Covenant to paint
A general covenant to “repair” may include an obligation to paint, though whether it does so will depend upon the length of the term and all the circumstances of the demise. There may alternatively be an express covenant to paint.
In Monk v Noyes (1824) 1 C & P 265, it was held that a covenant to “substantially repair, uphold and maintain” included keeping up inside painting if it was not “mere ornamentation”. In Proudfoot v Hart it was thought that an obligation to maintain premises in “good and tenantable repair” embraced an obligation to whitewash ceilings though not an obligation to do purely “decorative” works. Otherwise a tenant of the class likely to take a lease of the premises might be deterred from doing so.
In deciding whether a repairing obligation embraces one to paint, therefore, is a matter of construction in each case.
“Fair wear and tear”
A tenant is not usually liable for work which is needed owing to fair wear and tear of the premises and such repairs usually fall to the landlord: Gutteridge v Munyard (1834) 1 Moo & R 334.
“Repairs”, “Improvements” and “Renewals”
An obligation to repair does not include an obligation to improve the demised premises: Pembery v Lamdin [0] 2 All ER 434. The difference between the two concepts can sometimes be very difficult to see in practice, but in Pembery the result of the decision was that the tenant was not obliged to waterproof the walls of an old property built without a damp-proof course. It was thought in that case that the correct test was:
Have the lessees done what was reasonably expected of them looking to the age of the premises on the hand and to the words of the covenant on the other?
The result may be different, though, if the property was fitted with a damp-proof course at the time of the demise: Elmcroft Developments Ltd v Tankersley-Sawyer (1984) 270 EG 140.
Much difficult law has arisen from the distinction between repair and works which by their nature are so extensive as to amount to renewal or replacement of the demised premises. The problem can only be summarised here, but it should be remembered that it is a problem which has commonly caused problems in long leases.
In Lurcott v Wakely [1] 1 KB 905 it was thought that:
repair is restoration by renewal or replacement of subsidiary parts of the whole. Renewal, as distinguished from repair, is reconstruction of the entirely, meaning the whole subject-matter under discussion
per Buckley LJ (at p924).
The terms of the particular lease should be examined to see the extent of repairs which fall upon the tenant. Generally, where a defect can be corrected by renewal of subsidiary parts of the premises, then the obligation may be caught by a repairing covenant. Where, however, the security of the premises depends on substantial alterations to the design or the structure then (unless such works were clearly in the contemplation of the parties as being on the tenant) they will fall to the landlord: see Smedley v Chumley & Hawke Ltd (1981) 261 EG 775. The test generally amounts to asking whether the works involve giving something back which is totally different from that which was demised. For example, if the demised premises consists of a concrete structure and that structure needs expansion joints inserted into the cladding, would those works be so substantial as to change the character of the building and amount to giving back to the landlord something wholly different from that demised? The question arose in Ravenseft Properties v Davstone (Holdings) [0] QB 12 and it was decided that the works only amounted to a repair because of the small cost of the works when compared with the whole value of the building. But it is always a question of degree in every case, to be considered in the light of the wording of the covenant and its context: Post Office v Aquarius Properties Ltd (CA), (1987) 281 EG 798.
Whether works amount to a renewal (or replacement) of the whole of the demised premises can be extremely difficult to decide where, if no works are carried out, the tenant will be in breach of his repairing covenant. A wall is a subsidiary part and so it was held in Lurcott v Wakely that — even though the wall in question needed completely replacing — nevertheless this fell within the tenant’s repairing obligation. A replacement (on this logic) could fall within a repairing covenant if there were no lesser remedial works that could be carried out instead. The result in Lurcott v Wakely might have been different if it had been necessary not just to rebuild the wall to the standard of the original but to do some totally new works which amounted to an improvement of the demised premises, and thus to giving back something different from that which was demised: Lurcott v Wakely; Post Office v Aquarius Properties.
Landlord’s express covenants
Much of the above discussion has been concerned with the extent of the tenant’s repairing obligations (which we have seen depend largely on the wording of the particular covenant). Similar rules of construction will apply to the landlord’s express covenants. Here are some of the more common words and phrases found in leases, putting certain obligations on the landlord:
Liability for “Structural Repairs”
“Structural” means significant works to the structure:
It is submitted that by the word “structural”, used as a word of qualification of repairs, is meant more than a mere distinction from decoration . . . they must affect the form and structure of the premises. Para 1 — 1460 Woodfall on Landlord and Tenant.
Such works will include works to the roof, supporting beams, and so on.
To Repair “External Parts”
This includes internal partition walls between the demised premises and adjoining premises: Green v Eales (1841) 2 QB 225.
“Outside” Repairs
This means just the “skin” of the house and therefore may not include a partition wall: Ball v Plummer (1879) The Times June 17 1879.
Conclusion
Many of the words found in leases discussed above are standard terms used by property companies and landlords to standardise the obligations of their different tenants. These words therefore tend to remain unchanged until a particular wording causes problems and has to be construed by a court. A better approach would be for landlords to make a regular review of all covenants and (when granting new leases) to take account of any changes in the law. At any rate (without statutory reform) the job of the legal adviser is unlikely to get any easier in this area and all should beware of the dangers.
