When a roof falls into significant disrepair during the contractual term of a lease, this can be a cause for significant concern for landlords. This is especially so with longer term leases where further and rapid deterioration is likely. In our experience, roof disrepair is a topical issue for many landlords and in this dilapidations insight, we consider why it's so important for landlords to have a suitable strategy in place to deal with this specific issue.
In this article we explore interim notices to repair as a tool for dealing with roof disrepair during the lifetime of a lease. We consider the steps that need to be taken before and after service of these notices as well as their scope and limitations.
The decisions in cases involving roof disrepair and where there are alternative repair options, have gone either way. For example, in the Sunlife Europe Properties Ltd v Tiger Aspect Holdings case, the judge accepted the evidence of the landlord's surveyor that the lead mansard roof of a 1970s office and retail building had deteriorated to such an extent that the total replacement of the roof was justified. Conversely, in the Carmel Southend v Strachan & Henshaw case, the court found in favour of the tenant accepting their evidence that the roof of the industrial premises should be patch repaired, which involved the replacement of just a small number of roof sheets.
The Sunlife and Carmel cases concerned terminal dilapidation claims on the expiry of the lease. Landlords may, however, wish to force the disrepair issue during the term of the lease and consider serving a Jervis v Harris interim notice to repair on the tenant. If a roof’s disrepair is left unattended, it could prejudice the building’s overall repair and integrity and the landlord’s ability to insure, re-let etc. This could be preempted with the service of an interim service to repair.
If a landlord has inspected and obtained compelling expert evidence that the roof is physically defective and below the standard of repair contemplated by the lease covenant, they should obtain professional advice and carefully consider the advantages and disadvantages of serving an interim notice to repair.
In our experience, service of a landlord's interim notice to repair in appropriate circumstances can be beneficial. It focuses a tenant's attention and willingness to address the repairs, making it unnecessary then for the landlord to exercise its own contractual 'self-help' rights under the lease.
If there is express provision in the lease permitting it to do so, following service of the notice the landlord may elect to enter the property and carry out the repairs. The advantage of exercising this self-help provision is that the landlord then has direct control of the works, and can ensure that the materials and the contractors are satisfactory and that appropriate warranties for the repair of the roof are in place. A further benefit is that provided the right to enter and repair is exercised strictly in accordance with the terms of the lease, the landlord will often be better placed to recover the cost of the repair works as a debt. A section 18(1) Landlord and Tenant Act 1954 diminution in value defence will not be available to the tenant, as the landlord’s claim is for a debt rather than damages.
There are, however, potential risks and pitfalls for any landlord to seeking to exercise this 'self-help' remedy. For example, if the works that the landlord carries out go beyond and fall outside the scope of the covenant to repair or if the costs of the works are unreasonable or if the works aren't properly carried out, the tenant may then be able to successfully challenge the validity of the landlord's interim notice to repair.
It may become apparent to the landlord during the repair works that further and additional works are required that weren't specified in the interim notice to repair. In this scenario, a supplemental, follow-up notice to repair will need to be served before the additional works are carried out as they fall outside of the scope, and therefore lawfulness, of the original notice. In turn, this can cause difficulties managing the overall timeline of the works, instructing contractors etc.
Further considerations and potential disadvantages for landlords are that the practical arrangements for the repair works should be discussed and agreed with the tenant in advance if at all possible. Where required, the landlord will need to be clear that there is a suitable exception and reservation in the lease allowing the landlord to erect scaffolding. Without an express reservation in the lease, the landlord will need to prove that they have an implied right to erect scaffolding in order to exercise the 'self-help' remedies and repairs.
Each case will turn on the detail on the drafting and the lease in question. However, we aren't aware of any definitive case to date in which the court has implied a right for a landlord to erect scaffolding on the tenant’s demise on an interim repairing basis where the lease has been silent on this. Should the landlord overstep the terms of a lease and their contractual rights in any way, they are then at risk of derogating from grant. Injunctive court proceedings and a claim in damages could then be brought by the tenant against the landlord.
In summary:
For more information, please contact Warren Reid.
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