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Breach

This page includes information on the following topics:
  • Control of Asbestos Regulations 2006.
  • Definition of "building" - windows exterior?
  • Demolition of buildings and redevelopment of site - 1000 year lease.
  • Defective Premises Act
  • Repair v improvements - windows
  • Structure - joists.

Asbestos

Control of Asbestos Regulations 2006

On 21 May 2004 regulation 4 of the Control of Asbestos at Work Regulations 2002 came into force. Under those regulations a duty is imposed on "a dutyholder" in respect of the premises, ie a "person who has, by virtue of a .. tenancy, an obligation .. in relation to the maintenance or repair of .. non-domestic premises" (reg 4(1)). A "dutyholder" is under an obligation to "ensure that a suitable and sufficient assessment is carried out as to whether asbestos is or is liable to be present in the premises". Where "the assessment shows that asbestos is or is liable to be present in any part of the premises the dutyholder shall ensure that a determination of the risk from the asbestos is made". The plan for managing the risk "shall include adequate measures for ensuring any asbestos or any such substance is properly maintained or where necessary removed." (reg 4(9)).

These regulations can be relevant in a dilapidations or other similar claim where the landlord is asserting that failure on the part of the tenant constitutes a breach of the regulations and thereby a breach of covenant not to comply with statutory duties.

As a result of EU directives in a number of areas the 2002 regulations have now been replaced by the Control of Asbestos Regulations 2006 which are due to come into force on 13 November 2006. Regulation 4 has been re-enacted in these new regulations without change and using the same paragraph numbering.


Definition of building - windows

Pattrick v Marley Estates Management
[2007] EWCA Civ 1176

Summary

A case on the meaning of the word "building" in a repairing covenant. The court dismissed the lessor's argument that as the relevant part of the building (some cloisters!) were only used (and only useable) by the lessees they should not fall within the lessor's repairing obligation. Also, windows in the building were held to be part of the "exterior of the houses and buildings" and therefore the responsibility of the lessor to decorate (although not repair and renew because of the specific wording in the lease).

Facts

Mr and Mrs Pattrick are the lessees under a 999 year lease granted in September 2000 of premises in Devon. Marley Estates Management are the lessors. The premises originally formed part of an estate consisting of a mansion house standing in its own grounds with a dower house and other ancillary buildings. The estate was subsequently divided into 17 separate dwellings. The premises demised under the lease in question consisted of four floors on the west side of the original mansion house, together with the terraces of cloisters and nine acres of park land.

The lease provided that the lessees shall:
    "5(a) Keep the Demised Premises (other than the parts thereof comprised and referred to in clause 6 hereof) and all walls party walls sewers drains pipes cables wires and appurtenances thereto belonging in good and tenantable repair and condition and in particular (but without prejudice to the generality of the foregoing) so as to support shelter and protect the other parts of the building of which the demised premises form part"
The demised premises were described as including:
    ".. the house located at the lower ground floor upper ground floor and first and second floors known as Marley House, ... and the upper and lower terrace and stores ... TOGETHER WITH the doors and windows thereof and the interior faces of the ceilings floors and main structural walls thereof.."
And clause 6 of the lease, provided that the lessor will:
    "(d).. maintain repair decorate and renew
      (i) the main structure (including the roof chimney stacks gutters rainwater pipes and foundations) of the houses and the buildings

    (f) [and]" so often as is reasonably required decorate the exterior including the wood and ironwork of the houses and the buildings in such manner as it shall think fit"
Issues

The two main questions before the court were:
  • Whether responsibility for the repair of the terraces of cloisters lay with the lessees or the lessor; and similarly
  • Whether the lessees or the lessor had responsibility for the repair and decoration of the 25 Georgian style windows in the premises.
Decision

The Court of Appeal considered that the cloisters fell within the lessor's responsibility to repair. The cloisters, as at the date of the grant of the lease, consisted of a floor, a roof and three walls with a colonnade on the fourth side. Clearly the structure was open to the elements and its use was somewhat limited as a result, nonetheless, the court held, it fell within the definition of "building" for the purposes of clause 6(d)(i) and so within the lessor's repairing obligation.

The court dismissed the lessor's argument that the cloisters were only used (and only useable) by the lessees and so they should not fall within the lessor's repairing obligation (with costs for such repairs being recoverable through the service charge from the all the lessees, including those who would not benefit from the cloisters). The court made the observation that the same could be said of other parts of the "building" where the costs of upkeep and repair would fall within the service charge but would not always benefit each lessee equally.

Turning to the windows, the court found that the responsibility for decoration fell on the lessor. Although the windows are clearly within the demise, clause 6(f) placed responsibility for the decoration of the exterior "of the houses and buildings" on the lessor. This, the court said, clearly included the windows and went on to say that the use of the wording "the woodwork and ironwork of the houses" in the lessor's repairing obligation only served to confirm this. The court also laid stress on the importance of the visual appearance of the outside of the premises stating that it would be normal in such circumstances to find a standardised decoration covenant.

However, the court went on to say, the responsibility for repair and renewal of the windows lay with the lessees under their repairing obligation as windows were not specifically excluded under the lessor's repairing obligation set out in clause 6(d)(i) and were expressly included within the lessees' demise and hence repairing obligation.


Claim against tenant - water leak causing lower tenant to withhold rent

Irontrain Investments Ltd v Ansari
[2005] EWCA Civ 1681

The claimant in this case was the landlord of two properties; Flat 1 and Flat 3. Between February 1999 and January 2001 Flat 1 suffered serious damage as a result of water leaking from Flat 3. As a consequence the tenant of Flat 1 withheld his rent causing L to suffer a loss.

Held L was entitled to recover that loss from the tenant of Flat 1. The claim was pleaded on the alternative bases of breach of contract (that is to say, breach of a repairing covenant in the lease) and in tort (that is to say, in nuisance/ negligence). As the claim in negligence was successful it was not necessary for the court to consider s18(1) of the 1927 Act; which might have limited the damages payable had the tenant been liable only under the repairing coveant. (Ehmler v Hall [1993] 1 EGLR 137 applied)


Defective Premises Act

See Residential tenancies: Housing disrepair


Demolition of buildings and redevelopment of site

British Glass Manufacturers Confederation v University of Sheffield
[2004] 09 EG 146, Lewison J.

Lease for a term of 1000 years granted in 1958, containing a covenant to erect a laboratory and then keep it in good repair. T wanted to knock down the building and rebuild another for a different purpose. L argued that this would be a breach of the repairing covenant. The argument was rejected. The parties to the lease must have contemplated that at some time during its life the building would be altered or modified. The repairing covenant related to any other building that might be built on the land at some future point. (A separate estoppel point was rejected).


Repair v improvement

Windows

Craighead v Homes for Islington Ltd
[2010] UKUT 47 (LC)

Summary

In a residential lease the replacement of single-glazed Crittal windows that were in a state of disrepair, with modern double-glazed Crittal windows, whilst undoubtedly an improvement within the general meaning of the word, was a ‘repair’ rather than an ‘improvement’ within the context of repairing obligations. Costs were recoverable from all tenants, not just those tenants whose leases provided that they would contribute towards the cost of ‘improvements’.

Facts

The case concerned 3 blocks of residential flats (129 flats in total) in central London. The blocks were constructed between 1938 and 1950 and were listed as Grade II in 1998.

There were three different forms of leases that had been used across the flats. One form of lease restricted the recovery of service charges to monies incurred in the "repair, maintenance and renewal" of the premises. The other two forms of leases went further, to allow "improvement" as well as repair, maintenance and renewal.
The flats had been built with single glazed windows. The landlord replaced the windows with double glazed windows and sought to recover the expense from all of the tenants.

It was common ground between the parties that the replacement of the windows with double glazed units was the only lawful way of effecting the repair works necessary, because of the requirements of the Building Regulations 2000. English Heritage could have insisted upon replacement of the windows with single glazing because the buildings were listed as Grade II but it chose not to do so. It was also common ground that the new windows were an improvement.

Issue

Whether the improvement amounted to ‘repair’ within the leases. In other words, was the full cost of the replacement with double glazed windows recoverable from the tenants?

Decision

The Tribunal held that the replacement of the windows with double glazed windows was a repair under all the leases and therefore costs were fully recoverable. The Lands Tribunal (AJ Trott FRICS) at para 55:
    “It must have been contemplated by the parties to the lease that the landlord, having covenanted to keep in repair a building element, would effect repairs lawfully, even if that meant an improvement to that element as a matter of fact. In this appeal if the replacement of the windows was not considered a repair because of the enhanced specification then the council would be legally unable to comply with its repairing covenant."
Referring to the judgment of Nicholls LJ in Holding and Management Limited v Property Holding and Investment Trust plc [1990] 1 All ER 938, the Tribunal went on to say that it was necessary to have regard to the “overall effect of the works in question on the demised premises [which] included reference to the comparative cost of alternative remedial works” and concluded:
    “The council was under an obligation to repair …. the windows at the Spa Green Estate. The necessity to carry out such works is not disputed, nor is the standard to which they were carried out. The council could only lawfully do the works by using double-glazing. This cost an extra 13% but did not significantly alter the premises in any way. In my opinion this extra expenditure was necessarily incurred and whilst as a matter of fact the double glazing was an improvement in terms of its functional efficiency compared with the single glazing previously in situ, I agree with the LVT that the cost of the double glazing work was incurred in effecting repairs and was properly and proportionately included within the service charge of all the appellants. I conclude that it was open to the LVT on the evidence to conclude that the double glazing works were works of repair.” (para 63)
Comment

Whether in any given case works amount to an improvement rather than a repair depends very much upon the facts.


Structure - joists part of structure?

Marlborough Park Services Ltd v Rowe
[2005] EWHC B21 (Ch)

The issue in this case was whether the tenant or the management company of a block of flats was under an obligation to repair the joists in each flat. That question turned on whether the joists formed part of "the Main structure of the Property". If so they were excluded from the tenant's liability under its repairing covenant and included in the Management Company's repairing covenant.

On the evidence the judge came to the conclusion that the timber floor was an integral structural part of the property. It constituted the ceiling of the ground floor and floor of the first floor. It provided lateral support for the partition walls. In those circumstances the judge came to the conclusion that it was part of the main structure of the Property. The management company was therefore under an obligation to keep the joists in repair (Para 49).


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