Commercial Leases: Lecture 7 Today’s topics

1. Commercial Leases: Lecture 7Today’s topics • Repairing covenants • Tenant’s covenant to repair • Landlord’s covenant/Service charge • Vacation self-study exercise • Landlord’s remedies

2. Commercial Leases: Lecture 7Repairing covenants • Implied obligations (p.1) • To use in tenant-like manner • To give business efficacy to the agreement • Tenant’s covenant to repair • Lease of whole/part • Interaction with other provisions • Look at “Repair” and “Demised Premises” together

3. Commercial Leases: Lecture 7Tenant’s covenant to repair • Meaning of “repair” • Dictionary definition? • Drafting • Case law – little statutory guidance • Qualifications to “repair” (pp.1-2) • “Good and substantial” • “Tenantable” • Anstruther-Gough-Calthorpe v McOscar

4. Commercial Leases: Lecture 7Tenant’s covenant to repair • “Repair” and “renewal” • Lurcott v Wakeley and Wheeler – although “repair” can contain elements of renewal, repair and renewal are different concepts • Credit Suisse v Beegas – (L’s covenant to repair) • “to repair, amend, renew… and otherwise keep in good and tenantable condition”; reference to “… defect or want of repair…” • Verbs “amend” and “renew” considered in addition to “repair” • Although replacement of cladding to building too extensive for “repair”, it fell within “renew and amend”

5. Commercial Leases: Lecture 7Tenant’s covenant to repair • “Good condition” • Welsh v Greenwich – flat suffered mould inside due to condensation caused by lack of insulation – chattels damaged not structure • “to maintain thedwelling in good condition and repair” • “Good condition” a separate concept and additional to “repair” – not limited to structural condition • Held – failure to maintain in good condition

6. Commercial Leases: Lecture 7Tenant’s covenant to repair • “Repair” and “disrepair” • Post Office v Aquarius – before liability arises under a covenant to repair there must be disrepair – unusual facts • New office building let in 1969; defect in structure of basement • Water table rose 1979-1984 – basement flooded; 1984 water table subsided – no damage caused by defect • No liability to improve to remove defect

7. Commercial Leases: Lecture 7Tenant’s covenant to repair • Standard of repair • Proudfoot v Hart – 3 year lease – “keep premises in good tenantable repair” • Obligation was to putand keep • Having regard to age/character of locality, making reasonably fit for occupation by tenant of class likely to take it • Distinguish Anstruther – 95 year lease, so Proudfoot standard did not apply - would mean fluctuating standard depending on tenants/neighbourhood – so standard assessed at start of term

8. Commercial Leases: Lecture 7Tenant’s covenant to repair • Scope of repairing covenant (p. 2, para (f)) • Putand keep • Inherent defects can fall under repairing covenant • Ravenseft v Davstone – cladding loose and dangerous – lengthy repairing covenant • Repair doesn’t mean giving back a different thing (Lister v Lane) but it is a matter of fact and degree • Use ratio of cost of works to value of property • Stent v Monmouth and Creska v Hammersmith – considering replacement/expense use “sensible man” criterion

9. Commercial Leases: Lecture 7Tenant’s covenant to repair • Summary of relevant factors to determine whether repair (p.3) • Amending tenant’s covenant to repair (p.4) • Exclude inherent defects • Exclude insured risks • Schedule of condition • Fair wear and tear excepted • Landlord’s re-entry clause

10. Commercial Leases: Lecture 7Service charge • Relevance - lease of part/internal demise/unit on estate (p.5) • Service charges • Check Landlord’s covenant – to provide services • Tenant’s amendments: • See Vacation self-study exercise • Look mainly at services provided/expenses • Few legal points – mainly commercial

11. Commercial Leases: Lecture 7Ancillary covenants • Yielding up in repair • Decoration

12. Commercial Leases: Lecture 7Landlord’s remedies • Damages • s18 LTA 1927 - ceiling • Leasehold Property (Repairs) Act 1938 • Forfeiture • Leasehold Property (Repairs) Act 1938 • Self-help • Jervis v Harris (debt) • Specific Performance • Rainbow Estates v Tokenhold