Tenant and Landlord Law
Case 1: Mr. Razor and Mr. Shabby
The first item of concern regarding Mr. Shabby's responsibility is the clause in the lease concerning repairs which states "the tenant covenants to keep the entirety of the demised premises in good repair". It must be kept in mind that the word 'repair' in the context of this agreement is slightly different than 'condition.'
The wording of a contract can be quite important as was pointed out in the case of Welsh v Greenwich LBC (2001) 33 HLR 40, CA. In this case, the Court of Appeals ruled that a local authority's responsibility 'to maintain a dwelling in good condition and repair' was a separate responsibility which was beyond what would normally be covered by using the word 'repair' (Wilkie & Cole 2006). In this particular case, the local authority became responsible for damage suffered by the tenant pursuant to condensation damage. This would not normally have been the case if a simple repair covenant were in place.
Another matter which is of importance to this case is the covenant which is established by s 11 of the Landlord and Tenant Act 1985 (Thompson, 2006). This part of the Act provides a baseline liability which remains, even if there are covenants expressed which are to the contrary (Garner & Frith, 2008). This section of the Act implies that the tenant must keep the structure and exterior of a dwelling house in repair.
The case of Post Office v. Aquarius Properties Ltd  1 AII E.R. 1055 makes it clear that disrepair must be present before any issue of remedying a design fault can arise. In the case of Post Office v. Aquarius Properties Ltd. there was a defect in the building from the time of its construction. A defect in the retaining walls allowed the basement to be flooded with several inches of water. However, no damage was caused to the building by the water. Since the building was in the same condition as when it was originally leased, the tenants were judged to be under no obligation to make repairs to prevent further flooding.
The case of Southwark London Borough Council v. McIntosh  1 EG LR 25 is frequently applied regarding breaches of a covenant regarding property repairs. In this case, the tenant leased a flat in Peckham during October of 1992. Towards the end of 1993 she noticed that the flat was damp throughout. Ms. McIntosh reported the problem to her landlord who did not tend to the problem until nearly 6 years later in 1999. This resulted in Ms. McIntosh claiming the landlord owed her damages for breach of the repair covenant implied by the section 11 of the Landlord and Tenant Act of 1985. The court awarded her £7,850 in damages.
The landlord, Southwark London Borough Council, appealed against the case on several grounds. First, they claimed to have no duty to advise Ms. McIntosh to avoid using any particular cupboard. Second, the damp which was in the premises was not related to any breach of the covenant by the landlord. It should be remembered at this point that according to the case of Quick v. Taff-Ely Borough Council  QB 809 that "disrepair" is only present when there has been some physical damage to the structure which is not due to any fault of the tenant. The landlord is not responsible by implied covenant simply because there is a problem with the premises.
In the case of Southwark London Borough Council v. McIntosh the appeals judge found that the claim made by Ms. McIntosh did not include an allegation of physical damage to the structure of the property. It also did not include any allegation that any damage to the property had caused the damp of which was complaining. The judge found that there was no breach of the covenant by the landlord and the action by his McIntosh was dismissed.
The case of Lurcott v Wakely  1KB 905 involved Buckley LJ determining that repair and renew are different words with different meaning (Smith, 2009). A roof can fallout of repair and require replacement of decayed timbres. A repair can be considered a restoration or replacement of individual parts of a whole. Renewal involves redoing the entire structure.
Determining what is required under a covenant of repair can be a complex matter. If one looks at the judgment of Nicholls L.J. in Holding & Management Ltd v Property Holdings & Investment Trust plc 1 EG LR 65 an idea of this complexity is apparent. In this case, the judge decided that the context, in which the word repair is used, as well as the remedial work and the defects involved must all be taken into consideration. Some of the considerations are the terms of the lease, the nature of the building, the state of the building when the lease was signed, the extent and cost of the proposed works, the nature and extent of the defects, to whom the expense of the remedial works will fall, and both the buildings expected lifespan as well as its value.
In the case of Elite Investment Limited v TI Bainbridge Silencers Ltd (1986) an industrial unit had been leased with 8 years remaining on the contract. The repair covenant stipulated that the tenant was responsible for maintaining the walls and roof of the building. The roof needed to be replaced and the estimated cost was £80,000. However, the tenant's value by assignment of the entire building was only £140,000. In this case, the judge ruled that the tenant was still liable repair the roof. The cost was not a justification for relieving the tenant of responsibility for the work.
In the case of Scottish Mutual Assurance plc v Jardine Public Relations Ltd  E.G.C.S. 43 the court was asked to consider a lease which provided that the tenant pay a "fair proportion" of the cost which would be "reasonably and properly" incurred by the landlord for a variety of things including, repairing and maintaining the structure of the building. The roof of the building in question was in significantly poor shape and had undergone recent patch repairs. The tenant's lease had only a few months remaining. The landlord had long-term and expensive repairs done on the roof. These repairs were more expensive than what would have been required to simply patch the roof for the remainder of the lease. The court decided in this case that the cost of the long-term repairs was not "reasonably and properly" incurred by the landlord because the tenant could not be expected to pay for long-term repairs when they had already paid for short-term repairs, which were sufficient for the time of their lease. The court further decided that the tenant was responsible for only 39.88% of the cost of the short-term patch repairs.
The case of New England Properties plc v Portsmouth New Shops Ltd  NPC 21 involved tenants who were liable for a portion of the landlord costs of renewing and maintaining the roof of a property they were leasing (Wilkie & Cole 2006). It was discovered that the roof had originally been incorrectly designed, which caused fractures to develop in a gable wall. The tenant agreed with the landlord at the original roof was not sufficient. The new roof was quite different from the old roof. The court did not agree with the tenant that the new roof was an improvement rather than a repair. This resulted in the court ruling that the tenant had to pay a proportion of the cost of the new roof.
In the case of Eyre and others v McCracken  EWCA Civ 501 the court was asked to consider the responsibility of a tenant to provide a repair which consisted of a damp course. The building with over 150 years old and had no damp-proof course when it was originally built. The premises were in poor condition. The court agreed that there was the need for a damp-proof course but that requiring the tenant to pay for such an item would be inappropriate, since they would then be giving more back to the landlord and was originally released to them.
In the case of Elmcroft Developments Ltd v Tankersley-Sawyer  270 EG 140 the court decided that inherent defects in a building may be part of a repairing covenant on the part of the landlord or tenant (Wilkie & Cole 2006). In this case, it was determined to be a matter of degree as to whether works, which will correct a defect in a building, constitute an improvement or a renewal of the entire structure which goes beyond the concept of repair.
In the case of Proudfoot v Hart  25 QBD 42 the meaning of "tenantable repair" was explored by the court. In this case, the tenant had agreed to keep a premise and good tenantable repair. They also agreed that they would leave the property in the same way upon expiration of the lease. The court ruled that the tenant was responsible for keeping the property in a condition which given the properties location, age, and character would make it reasonably fit for another tenant likely to desire. In this case, the court judged that the tenant was responsible for a limited amount of decorative repairs.
Under the Leasehold Property act of 1938 the landlord has remedies for breach of contract including forfeiture or a claim to damages (Wilkie & Cole 2006). However, the case of Associated British Ports v C. H. Bailey 2 AC 703 established that the landlord may only forfeit the premises if the property has been leased for 7 years and there are at least 3 years left on the contract. The landlord must serve a notice to the tenant requesting the repairs be done. The tenant has the right to serve a counter notice. In fact, the landlord is required to inform the tenant of his rights in serving counter notice. As long as the counter notice is served within 28 days, no further action can be taken by the landlord until a court approves the forfeiture. The court will not approve the forfeiture, unless 5 conditions exist: The courts must first determine that the landlord's interest in the property is likely to be diminished if the repairs are not completed. Furthermore, the repair must be necessary in order to comply with local bylaws or the law of another authority. If the tenant is not occupying the premises, the repairs will be necessary before the structure can be occupied by another tenant. Additionally, the repair of the property will avoid further deterioration resulting in more expensive repairs. Finally, there must be special circumstances present, which make the leave to proceed just and equitable.
There are many cases, which apply to this situation with a variety of outcomes regarding the tenant's responsibilities (Garner & Frith, 2008). At this point, the most prudent action for Mr. Shabby is to legally serve a counter-notice to Mr. Razor within 28 days of when Mr. Shabby received his repair notice. This counter notice should indicate to the landlord that the tenant does not believe they are responsible for any repairs. Mr. Razor can then either pay for the repairs himself or take Mr. shabby to court in an attempt to legally force him to pay for the repairs or forfeit the property.
Case 2: Mr. Flybynight and Mr. Lasagne
The Landlord and Tenant Act of 1954, part II (as amended by the Law of Property Act of 1969) combined with the Landlord and Tenant Act of 1927 allows for tenants of a business premise to have security of tenure. This applies to all contracts involving commercial leasing of a property after 1953, even those which claim they are not subject to these Acts. These acts also provide for possible compensation at the end of their tendencies. The security offered includes automatic continuance of the tenancy notwithstanding its expiring due to the term of common law. The tenant may also compel the landlord who desires possession to provide proof of one or more of the grounds listed in section 30. The tenant also has a right to seek new tenancy through a section 26 request or a counter notice to a section 25 notice of termination.
In order for the security of tenure to apply certain conditions must be met by the tenancy. Section 23 (1) of the 1954 Act requires that the premises must be occupied by the tenant for the purposes of a business. Section 23 (2) of the 1954 Act defines a business as being a trade, profession or employment including any activity carried on by a group of persons be regardless of their corporate status. This provision has been widely used to include many different usages of a structure such as the activities of a tennis club or the storage of goods in a lock-up garage.
The termination of a business tenancy is commenced by the landlord serving a section 25 notice for the tenant to terminate. This section must be served not more than 12 months, and not less than 6 months prior to the desired end of tenancy. A tenant may apply to continue the tenancy by filing a section 26 request. However, this cannot be done after the landlord has served a section 25 notice. The tenant can, however, apply to the court for a new tenancy. Sections 24 (1) and 29 (1) of the 1954 Act stipulate that the tenant must have given the landlord written notification within 2 months of the section 25 notice that they are unwilling to give a possession of the property. The application must be made to the court between 2 and 4 months after the section 25 was delivered.
There are several grounds on which a landlord may oppose to continue the tenancy of the property (Garner & Frith, 2008). These grounds are failure to repair, persistent delay in paying rent, breaches of other obligations, alternative accommodations offered, increased returns if let or sold as a larger unit, intention to demolish or reconstruct, and intention of the landlord to occupy the premises as a business or residence.
There are several cases related to what comprises a sufficient "intention". In general, the intention cannot be a vague desire on the part of the landlord must be a well-developed plan. In the case of Reohorn v Barry Corporation  2 All ER 742, Lord Justice Banning remarked that the intention to carry out work implies an ability to carry it into effect. The landlord must be reasonably able to carry out the work which is proposed. In the case of Wessex Reserve Forces and Cadets Association v White and anr  EWCA Civ 374 the landlord was relying upon the demolition and reconstruction notion to deny the renewal of a lease. In this case, the court decided the landlord's intention could not be implemented. Also, the court judged that the landlord plans did not require possession of the premises.
Another case of interest is Barth v Pritchard  20 EG 65 which indicates that reconstruction means there will be a substantial interference with the structure of the premises. This interference will cause the premises to be necessarily demolished and rebuilt in a different form. The case of Heath v Drown  2 All ER 561 set a precedent that the landlord must show that the intended work cannot be reasonably carried out without relinquishing possession of the premises. The possession to be relinquished includes an end to any legal rights of possession and not just access to the premises.
In the case of Coppin v Bruce-Smith  EGCS 55(CA) a premise which comprised the Thames Ditton Lawn Tennis Club was desired by the landlord to be demolished. The landlord served appropriate notice to the tennis club who then served a counter- notice. The court ruled that the landlord could not establish a firm and settled intention to demolish the premises due to an unrealistic prospect for development of the site.
Despite any claims made by Mr. Flybynight, to the contrary, the Landlord and Tenant Act of 1954, part II will apply to his contract as it does to all commercial leases in the United Kingdom established after 1953. Mr. Flybynight is not likely to be able to refuse continued tenancy at this point in his plans. As in the case of Coppin v Bruce-Smith  EGCS 55(CA), the court is likely to rule that Mr. Flybynight's plans are not realistic given that he has not yet purchased the land which is required for the widened access. The most prudent course of action for Mr. Flybynight is to continue attempts to purchase the land necessary for widening access. After the land has been purchased by Mr. Flybynight, he may proceed to deny tenancy based upon demolition needs.
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