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Landlord's obligation

Implied obligation to repair

No implied obligation to repair retained parts

Gavin v Community Housing Association Ltd
[2013] EWCA Civ 580

Summary

The Court of Appeal refused to imply into a lease of part of a building an obligation on the landlord to repair the retained parts where the lease contained no express covenant requiring the landlord to do so.

Facts

A tenant (T) took a 6-year lease of commercial premises from a landlord (L). The premises consisted of the ground floor and basement of a building, the upper floors of the building having been retained and let by L as residential flats.

The premises were defined to include the internal plaster, ceiling and floor coverings, the doors and windows, and all conduits within the demise. L retained the structure of the building, including the soil pipes on the rear of the building that served the residential flats on the floors above the demised premises.

L was required to insure the demised premises and the retained parts, but gave no express covenant to repair the retained parts of the building. There was also a rent cesser clause that applied if the demised premises (or any part of them) were damaged by an insured risk so as to be unfit for occupation or use.

On a number of occasions over a period of about a year, the premises suffered damage as a result of ingress of water and sewage leaks from soil pipes from the retained parts of the building. On each occasion L had arranged for the damage to be repaired, the cost of the works (except on one occasion) being met by the insurers.

The question was whether T could claim damages from L for losses suffered due to interruption to her business caused by the various incidents.

First instance

The trial judge held that:
  • L had an implied duty to remedy any defects in the retained part of the building which would cause damage to the premises.
  • The scope of L’s duty was to take reasonable care to remedy any defects that he knew had caused, or were likely to cause, damage to the premises.
  • In the absence of negligence, the duty to repair only arose once L was aware that damage had been caused.
As L had acted to remedy the problem promptly in respect of most of the leaks, no liability could arise. In respect of one leak where there had been a two-month delay in carrying out the repair, the court awarded T £100.

T appealed and L cross-appealed against the damages.

Decision

The Court of Appeal found for L. The Court dismissed the appeal and allowed the cross-appeal.

The court refused to imply a covenant on the part of L to repair the retained parts on the basis that this would have the effect of improving the contract for T (Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10). The reasonable man looking at the lease would not assume that L would be responsible for any repairs to the retained parts unless there had been negligence.

The court considered the case of Barrett v Lounova (1982) Ltd [1988] EWCA Civ 9. In that case the court had implied into the lease an obligation on the landlord’s part that it maintain the structure as without that the tenant was unable to comply with its internal repairing obligations. The court distinguished that case because the lease in this case effectively provided for damage to the structure to be repaired through the insurance clause, and T was not left without remedy in the case of disrepair to the structure.

L had no duty to repair the retained parts, and had laid out the insurance monies in accordance with the lease. L was not liable to T for the £100 awarded at first instance.


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