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Miscellaneous

This page includes information on the following topics:
  • Carrying out repair works - tenant's covenant for quiet enjoyment.
  • Payment of service charges a condition of landlord's obligation to repair.
  • Right of re-entry to carry out the works.


Carrying out the works - tenants quiet enjoyment

Goldmile Properties Ltd v Lechouritis
[2003] EWCA Civ 49

L, who was carrying out his obligations to repair was not in breach of the covenant for quiet enjoyment as he had taken all reasonable steps to avoid disturbing the T's right of quiet enjoyment. L was not required to take all possible precautions. The covenant to repair had to be balanced against the covenant for quiet enjoyment, the latter being qualified by the phrase "except as hereinafter provided". T's restaurant business was badly disrupted by scaffolding used in the works and he claimed a loss of profits. The claim failed.


Improvements

Norfolk Capital Group Ltd v Cadogan Estates Ltd
[2004] EWHC 384 (Ch); [2004] 32 EG 64.

When a tenant serves a notice, under s3 of the Landlord and Tenant Act 1927 of its intention to make an improvement, and the landlord serves a notice of objection on the ground that it wishes to carry out the improvement itself in consideration of a reasonable increase in rent (or such as the court may determine) the tenant is permitted to change its mind and decide not to proceed with the improvement. The landlord is not then entitled to proceed with carrying out the improvement. The provision is designed to allow the tenant to carry out improvements not to compel it to accept works that the landlord wants to carry out.

Article: "Compensation for improvements" by Paul Henson, Halliwells LLP - An explanation of the scheme under Part 1 of the Landlord and Tenant Act 1927 by which the tenant contain compensation for improvements carried out during the tenancy. (Property Law Journal, 24 October 2005, p18).


Payment of service charges as condition of landlord's obligation

Bluestorm Ltd v Portvale Holdings Ltd
[2004] EWCA Civ 289.

It is standard form for a landlords repairing covenant in a residential lease to contain a clause which goes something like this: The Lessor covenants with the Lessee that subject to the Lessee paying the maintenance contribution pursuant to the obligations under clause .. the Lessor will [keep the building in repair]. On a straightforward reading of that clause if T does not pay his service charges L is under no obligation to repair. However, in Yorkbrook Investments v Batten [1985] 2 EGLR 100 the CA held that the payment of the service charges did not create a condition precedent.

The facts of the case now reported (Bluestorm) were complicated and the issues were resolved without reliance upon Yorkbrook. However, discussion in the case gives rise to the possibility that Yorkbrook might be distinguishable in certain cases. Buxton LJ thinks it may be possible to do so where the lease creates a close linkage between the tenants and their payments, on the one hand, and the landlord and its responsibilities, on the other or at least a closer link than in Yorkbrook (para 35). Sir Martin Nourse would also seem willing to distinguish Yorkbrook in appropriate cases (para 45 and 49). However, it is apparent that Maurice Kay LJ disagrees: Whatever may be the conceptual imperfections of that authority, it has stood without judicial criticism for almost 20 years It is binding on this court. Although the facts of this case can be described as extraordinary, there is nothing extraordinary about the terms of the lease. I am concerned that if we strive to distinguish Yorkbrook we may unwittingly disturb the assumptions upon which other leases have been negotiated and upset the balance that Yorkbrook appears to achieve. (para 41).

Comment: Landlords repairing covenants that are expressed to be dependant upon payment of the service charges are common. It is also common for tenants to stop paying service charges where landlords default and vice versa. It is therefore important that the principle is clear. Unfortunately the discussion in this case muddies the water.


Right of entry to carry out works

Yeoman's Row Management Ltd v Bodentien-Meyrick
[2002] EWCA Civ 860

L wanted to do substantial refurbishment works, which would require the tenant of a flat in a block of flats to move out. L had a right of entry to execute any repairs or works.

Held: The clause did not give L the right to remove T whilst the refurbishment works were being carried out. The word works in the clause referred to minor maintenance works. What L wanted to do would constitute a breach of Ts covenant for quiet enjoyment and would have required a clearer expression to that effect in the lease.

Article: "Self-help and Implied Licences to Enter and Repair" by Mark Pawlowski - Discussion of the cases dealing with a tenant's implied licence to enter a landlord's premises in order to carry out repairs which are the landlord's responsibility (Landlord and Tenant Review (2003) 7 L and T Rev 109).

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