Greenhalgh & Co.
Chartered Building Surveyors & Valuers
21 Towncroft Lane
Bolton BL1 5EN
Tel: +44 (0)1204 845382
Mob: +44 (0)7813 439196
A tenant vacating a building at the end of lease is often faced with a dilapidations claim. This claim is usually arrived at by a surveyor listing all the various faults with the building and then estimating the cost of putting them right.
However many of these dilapidations claims are often excessive, predominantly because they contain lists of faults which may not necessarily fall within the true meaning of a ‘dilapidation’.
Obligation to repair a leased property
No work is required under a repairing covenant until some part of the property is in a worse condition than that required by the covenant. Where the covenant is to keep the property in “repair” (whether or not linked to other words such as “good”, “substantial”, etc.), there is no requirement for work to be done until some part of the property is “out of repair”.
Repair work only becomes necessary once the premises concerned are “out of repair”. The word “repair” has been defined as the rectifying of damage or deterioration, that is: “the putting back into good condition of something that, having been in good condition, has fallen into bad condition” (per Lord Evershed M.R. in Day v. Harland and Wolff Ltd. (1953)), or: “making good damage so as to leave the subject so far as possible as though it had not been damaged” (per Atkin L.J. in Galthorpe v. McOscar (1924).
These definitions of repair have been cited with approval by the Court of Appeal in Quick v. Taff-Ely District Council (1985) and Post Office v. Aquarius Properties Ltd. (1987).
Therefore the premises are not “out of repair” unless they have been damaged or have deteriorated from an earlier physical condition. From what earlier physical condition: the condition at the date of the lease, or the condition at some earlier date?
Damage or deterioration compared with what?
In general terms, the condition required to be maintained is that subsisting at the date of the lease (Lister v. Lane and Nesham (1893); Lurcott v. Wakely and Wheeler (1911); Pembury v. Larndin (1940J (Digest)).
However, it was decided in Proudfoot v. Hart (1890) that the common covenant to “keep in repair” will require some work to be carried out at the beginning of the lease where the premises are not in fact in a state of repair at that date. In other words, it may require the property to be put into repair at the outset. This is simply because something cannot be “kept” in a particular condition until it already is in that condition.
Consequently, the “damage or deterioration” requiring repair may not simply be that occurring since the date of the lease, but might be that which has occurred since some earlier date at which the property was in a particular better condition.
What condition? Generally, the answer is the condition which, having regard to the age, character and locality of the property at the date on which the lease was granted, would make the premises reasonably fit for occupation by a reasonably minded incoming tenant of the class who would be likely to take it (Proudfoot v. Hart); Lurcott v. Wakely and Wheeler (1911); Elmcroft Developments Ltd. v. Tankersley-Sawyer (1984).