If a landlord breaches its repairing obligations then the tenant has a number of options, writes Rob Cooke, partner and property litigation specialist at Lupton Fawcett. The main one is to decide whether to carry out the repairs itself or seek to require the landlord to carry them out.
The landlord’s obligation to repair will often vary from lease to lease. You will need to consider the lease to determine the extent of the landlord’s obligation to repair but it could among other things cover: the main structure of the property; the external parts; the internal parts; the common parts; and in more limited circumstances, the area within the tenant’s demise.
It is also worth noting that the landlord may have some statutory obligations in relation to repair and a breach of those may provide the tenant with a claim in damages against the landlord or to apply for an injunction.
The tenant should ensure that the landlord is on written notice of the breach of covenant and the need for repair. Until the landlord has had notice of the disrepair and has had a reasonable opportunity to carry out any remedial works, it will not be in breach of its obligation to repair.
A tenant’s potential remedies against the landlord include: self-help, deduction and set off – the tenant could carry out the repairs and then seek to recover the costs from the landlord by way of a deduction or set off against sums due to the landlord; specific performance – the tenant could apply to the court for an order for specific performance to require the landlord to carry out the repair works in accordance with the terms of the lease; injunction – the tenant could apply to the court for an injunction to require the landlord to carry out the works which do not fall within contractual repair and obligations; declaration – the tenant may seek a declaration from the court as to the requirement for the repair and this can be used if the tenant intends to carry out the repair work and then set off the costs against rent due to the landlord and a damages claim – the tenant could pursue the landlord in an action for damages in contract for breach of covenant or in tort. This may be appropriate if the works have already been carried out and completed.
Prior to commencing any litigation, however, the tenant should always consider if some form of alternative dispute resolution is possible with the landlord. If you would like any further information or advice regarding the issues set out in this article you should contact Rob Cooke on 0114 228 3261 or firstname.lastname@example.org