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Standard of repair
Patch repair ok?
Carmel Southend Ltd v Strachan Henshaw Ltd
[2007] EWHC 1289 TCC
Facts
The claimant (“F”) was the freeholder of premises let to the defendant (“T”) under the terms of a lease (“the lease”) dated December 1990, which expired in December 2004. T sublet the premises to a 3rd party (“the sub-tenant”) who remained in occupation at on the expiry of the lease. Subsequently F relet the premises to the sub-tenant in July 2005.
The lease provided that the tenant:“At all times…repair and keep in good and substantial repair and condition the demised premises” and that on expiry of the term, he “yield up …the demised premises in such good and substantial repair and condition as shall be in accordance with the covenants on the part of the tenant contained herein”. Throughout the lease the roof had leaked and attempts had been made unsuccessfully to effect patch repairs. The roof remained in a defective state of repair at the end of the lease. Initially surveyors for both parties agreed that patch repairs were appropriate, but F’s surveyor then required more substantive works (overcladding the roof), partly because these were required by the sub-tenant on taking the new lease and partly because of health and safety issues surrounding certain parts of the patch repairs. F then carried out the overcladding, and sought to recover the costs of overcladding from T. T refused to pay on the basis that the overcladding was not necessary to meet T’s repairing obligation under the lease and alternatively that the overcladding works actually carried out rendered part of the patch repairs futile, so negating the costs of those repairs as damages by triggering the second limb of section 18(1) of the Landlord and Tenant Act 1927.
Decision
The court looked at the correspondence and negotiations between the parties’ surveyors in some detail. The judgment sets out the relevant principles of law relating to the standard of repair, including those relating to alternative types of repair and the (limited) impact of works demanded by an incoming tenant.
Largely because of the original agreement between the parties’ surveyors and the lack of a detailed analysis of the health and safety problems associated with patch repairs, the court concluded that patch repairs were the appropriate method of making good the defects under the terms of the lease covenants.
The court then went on to deal with quantum. The damages claim for the patch repairs had been agreed at £24,462.44, but T argued that the actual works carried out (the overcladding) rendered futile a part of the patch repairs and that accordingly, damages should be reduced to £18,278.44.
The court dismissed this argument by T on the basis that what was at the heart of this case was not a dispute between works of repair and works envisaged by the second limb section 18, but rather a dispute between two types of remedial works. The fact that F chose a more extensive repair scheme than the court found appropriate did not of itself trigger the second limb of section 18. Accordingly the damages claim was not reduced from £24,462.44
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