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Standard of repair

Terminal Dilapidations

Standard of repair – roof lights

Twinmar Holdings Ltd v Klarius UK Ltd
[2013] EWHC 944 (TCC)

Summary

In assessing whether or not the tenant is liable to carry out repair works at the end of the lease, it is necessary to have regard to the standard of repair an incoming tenant at the date of the lease would have expected the premises to be in.

Facts

This was a terminal dilapidations claim brought by a landlord (L) against a tenant (T) in respect of warehouse and office premises. The premises were let to T under a 25 year lease from 1993, with a break right exercised by T bringing the lease to an end on 28 September 2008.

The lease contained the following covenants by T:
    "Throughout the Term where and so often as the occasion shall require to keep the whole of the Premises including the Building . . . in good and substantial repair and condition (damaged by any of the Insured Risks only excepted . . ."

    "When necessary to replace and renew and to keep clean all windows in the Premises."
The main question was whether T was liable for failure to repair the rooflights for which the sum claimed was a little over £46,000.

Issues

There were a number of issues, the most pertinent being that of the standard of repair under the lease.

T argued that as the rooflights were not leaking and as neither moss nor lichen had taken hold there was no disrepair. L argued that T was obliged to leave the premises in the same state of repair as at the date of the commencement of the lease.

Decision

The High Court (Edwards-Stuart J) found that the rooflights were in a state of disrepair. Although no moss or lichen had taken hold and the rooflights did not leak, the judge said:
    “..there had been a substantial degree of abrasion of the surface of the roof lights which, by the expiry of the lease, must have reduced their translucence by an amount that was not insignificant. .. I find that at the expiry of the lease the roof lights were not in good and substantial repair and condition.”
As to whether repairs needed to be undertaken, he went on to say:
    “If a repair can make good the ravages of time and the elements which, if left unchecked will result in the roof lights no longer being in good condition, I consider that it is one that may have to be undertaken under a covenant that requires the tenant to keep the building in good and substantial repair and condition throughout the term of the lease. In my judgment, to keep the building in good and substantial condition involves taking whatever steps are necessary to achieve and maintain that standard.”
The appropriate standard of repair is such repair as “having regard to their age, character, and locality would make them reasonably fit for the occupation of a tenant of the class who would be likely to take them” (Proudfoot v Hart (1890) 25 QBD 42) but tempered by the comment by Bankes LJ in Anstruther-Gough-Calthorpe v McOscar [1924] 1 KB 716 that the type of tenant is to be considered as at the commencement of the lease.

Applying this criteria, and given that the premises were brand new when the lease started, the court held that the condition of the roof lights must be, insofar as possible, in the same condition in which they were when the lease commenced in September 1993. In particular, they must be capable of letting in about the same amount of light and must be structurally sound and weatherproof.

Comment

This case is a timely reminder as to the general standard of repair expected of a tenant, in the absence of wording to the contrary in the lease.


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