Phil Parkinson, Legal Director at specialist property solicitors JB Leitch, offers practical insight into some of the issues surrounding building repairs.

Landlords, management companies and their agents undertake maintenance and repairs frequently and the scope can include minor issues up to major projects involving multiple contractors, inevitably engaging the section 20 consultation process. But often, inadequate consideration is given to ensuring that repairs are undertaken to the relevant legal standard. The starting point for any such analysis would be the lease in question.

The Repairing Covenant

Unless there is clear wording to the contrary, a covenant to repair requires work to be undertaken that, having regard to the age, character and locality of the property, would make it reasonably fit for occupation by a reasonably minded incoming tenant of the class who would be likely to take it, taking a lease on the same terms as the actual lease. 

But does a property with a high level of rent attract a higher standard of repair? 

The answer is not immediately straight-forward.

Whilst a high rent or value does not imply a higher standard of repair, a landlord’s repairing obligations derive from the terms of the lease or, possibly, from statute. The obligations depend on the true construction of the terms of the lease and while individual factors affect this, the assessment is objective. Given this point however, the nature of the premises and the locality do affect the standard of repair. For example, if premises comprise high class accommodation in a prime location, an appropriate standard of repair would be expected.

Is ‘repair’ the same as ‘good condition’?

‘Repair’, ‘good repair’, ‘substantial repair’, ‘habitable repair’ and ‘tenantable repair’ all essentially mean the same thing. However, a covenant to ‘maintain in repair and good condition’ has been held to be wider than a covenant simply to repair. Further, a covenant to ‘well and substantially to repair’ does not require the property to be put into perfect repair or pristine condition, but to a standard which an intending occupier of the sort of building in question would judge reasonable by reference to the intended use of the premises. The test is objective.

The Changing Status of a Building and its Neighbourhood

Unless there is clear evidence to the contrary, the standard of repair is assessed by reference to the circumstances, including the state of the property, at the start of the term. 

In general, a change in the class of tenants likely to require the property, or in the quality of the neighbourhood during the term of the lease, does not impact on the standard of repair required. 

However, it may have an impact on the damages awarded for a breach of the covenant if a landlord fails to comply.

The standard of repair is determined by reference to the state of the property when the lease was granted. However, the building will inevitably age and so a repairing obligation may vary with time, during the term. There is no duty to bring old premises up-to-date, but repairs that can make good or protect against the ravages of both time and the elements must be made.

Decoration

A covenant to repair may, depending on the wording, include an element of decoration. Where a landlord is obliged to carry out structural repairs only he is also liable to make good damage to decoration caused as a result. 

However, a general covenant to repair has been held to be limited to carrying out decoration necessary to prevent decay and not for ornamentation. Also, ‘Making good’ does not require landlords to replace exactly what was there before. What can reasonably be required of a landlord depends on the facts of each particular case. The obligation to make good does not impose an absolute standard, but an obligation so far as possible to restore property to its pre-existing condition. 

The condition of the demised premises before the work took place is therefore a key consideration. The landlord might not be able to restore the premises to exactly what was there before. If a covenant makes express provision for the precise timing or nature of the decoration to be carried out, it will be broken if this is not fulfilled. If a covenant requires painting in a given year of the lease, the covenant will be breached if this is not carried out in that year (whether or not decoration is required having regard to the state of the premises).

Repairs v Replacement

When considering the correct way to approach decisions on issues at a development it is important to remember that replacement will only be justifiable in place of continuing repair if it is reasonable in the circumstances. The costs of repair and replacement will feature heavily in any decision. 

In Fluor Daniels v Shortlands Investments (2001) the landlord could not reasonably recover expenses by way of service charge incurred in renewing a system (in this case, air conditioning) which was still working – even though it had reached the end if its suggested lifespan. A programme of works was rendered more sensible. 

In Tedworth North Management Limited v Mr L Miller (2016) a management company could not rely on the repairing covenant to justify the wholesale elective replacement of window frames where they could not be said to be in disrepair.

However, where a landlord is faced with a choice between different methods of dealing with a problem and the chosen course of action leads to a reasonable outcome, the costs of pursuing that course of action will have been reasonably incurred, even if there was another cheaper outcome which was also reasonable. In addition, if repair work is to be done to the satisfaction of the landlord’s surveyor, the surveyor can dictate the work to be done. He must exercise his own judgement and come to an honest view.

Conclusion

As in many instances, the standards and expectations for maintaining or repairing a property will largely fall to the terms of the lease as well as what is required under statute. The principles of what is both justifiable and reasonable are key considerations and weighted by individual factors such as the prior condition and ongoing effects of time.