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When faced with an interim Schedule of Dilapidations, the tenant's traditional response has been to rely upon The Leasehold Property (Repairs) Act 1938. The provisions of this Act make it very difficult for the Landlord to obtain a Court Order for enforcement.
Some recent judgements have weakened this traditional defence. One case notably changed the balance of power.
Jervis v. Harris (1996) 10 E.G. 159
It was held that, where the Landlord carried out the repairs in default, the value of his interest in the property was restored but he was out of pocket since he had carried out repairs instead of the tenant. The Landlord's claim was therefore a debt. Previous case law was overruled.
Landlords can now enforce rights under most repairing covenants and recover costs as a debt, rather than in damages. The 1938 Act provides no defence to a claim for debt.
In another case, the standard of the repair work which the landlord was entitled to carry out was affirmed and the landlords right to enter upheld.
Minja Properties Ltd. v. Cussins Property Group Plc (1998) E.G.C.S. 23#
To some extent, this case clarifies and affirms the previously known law. “Repair” can include renewal to contemporary standards. The landlord’s right of access to do so is likely to be upheld where the tenant would not be badly inconvenienced.
All cases are slightly different. Tactics and the law will vary accordingly. Sound, timely, advice is likely to save both time and money in the long run. These cases also highlight the value of recording the condition of a building at the commencement of a lease.
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