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Commercial Leases: Lecture 7 Today’s topics. Repairing covenants Tenant’s covenant to repair Landlord’s covenant/Service charge Vacation self-study exercise Landlord’s remedies. Commercial Leases: Lecture 7 Repairing covenants. Implied obligations (p.1) To use in tenant-like manner

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commercial leases lecture 7 today s topics
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
commercial leases lecture 7 repairing covenants
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
commercial leases lecture 7 tenant s covenant to repair
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
commercial leases lecture 7 tenant s covenant to repair1
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”
commercial leases lecture 7 tenant s covenant to repair2
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
commercial leases lecture 7 tenant s covenant to repair3
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
commercial leases lecture 7 tenant s covenant to repair4
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
commercial leases lecture 7 tenant s covenant to repair5
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
commercial leases lecture 7 tenant s covenant to repair6
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
commercial leases lecture 7 service charge
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
commercial leases lecture 7 landlord s remedies
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