LAND LAW

Land Law

Land Law

Within the context of landlord and tenant law, a major issue relating to the renting and letting of property is that of repairs, maintenance and improvements.  A tenancy agreement with a repairing covenant can deal with these matters so that the tenant and the landlord are aware of their responsibilities.  In relation to tenancy agreements of residential property, the parties' freedom to act is substantially determined by statute, in particular by the Landlord and Tenant Act 1985.  In respect of tenancy agreements for commercial properties however, the parties are largely free to agree their own repairing obligations.  Thus it is crucial that the terms of the tenancy agreement are carefully worded in order to avoid ambiguity.  However, the distinction between a 'repair' and an 'improvement' has become blurred and where disputes have occurred, both tenants and landlords have sought redress in the Courts.

Mackenzie & Phillips (2008 p199) state that, “Every lease, even the most informal, contains provisions which define the obligations of the landlord and tenant under the lease”.  Furthermore, Mackenzie & Phillips (2008, p212-3)  point out that in respect of most leases (other than the shortest) detailed covenants will be contained in the lease, outlining the repairing obligation of the tenant and the landlord and such covenants will vary considerably according to the circumstances.  For example, with a long lease of 99 years, a tenant would be expected to undertake all the necessary repairs to the building, including repairs of a structural nature.  In shorter leases however, the landlord would agree to maintain the structure while the tenant would decorate and carry out minor internal repairs. Clarke and Greer (2008, p145)  comment that most landlords accept that everyday wear and tear is inevitable and that, “Unlike the landlord, the tenant will not be subjected to any implied obligation to repair the leased premises.  In practice, the lease usually includes a clause requiring the tenant to keep the premises in 'good tenantable repair'.”

Mackenzie and Phillips (2008, p214) state that under ss11-14 of the Landlord and Tenant Act 1985, certain covenants are implied into all leases of “less than seven years”.  These implied covenants oblige the landlord:

“(a)  to keep the structure and exterior in repair; and

 (b) to keep in repair and working order the facilities for the supply of water, gas, electricity, sanitation, space heating and water heating.”

Edwin Johnson QC in his lecture, 'Problems and Solutions in Enforcing Duties to Repair in Leases of Commercial Premises' (2008) highlighted the distinction between a residential and a commercial lease when he stated that,  “In relation to leases of residential premises the parties' freedom of contract is substantially interfered with by statute, in particular the Landlord and Tenant Act 1985.  The same is not true in relation to leases of commercial premises.  The parties are largely free to agree on their own repairing obligations”.  Edwin Johnson QC highlighted the importance of the drafting of the commercial lease and stressed that consideration should be given to specific questions including:

“Who is ...