Part 7 – Repairs & Maintenance
The most common position for the repair and maintenance of the property is that it is wholly the tenant’s responsibility. This is one of the reasons that defining the extent of the property is so important. A common misconception is that the tenant is only liable to give the property back in the same condition in which it was given to them. This is generally not the case as the most popular form of wording in repair clauses obliges tenants to ‘put and keep’ the property in a good condition meaning that if it is not in good repair at the outset, it immediately becomes the tenant’s responsibility to put it right.
If a property is known to be in a poor condition, a tenant could try to limit their liability by having a Schedule of Condition drawn up and attached to the lease. Alternatively, if the property needs to be repaired, the tenant could take on the liability in return for some discount on the rent. Further, if there is a specific aspect of the property, such as a flat roof, that is causing concern, it could be excluded from the tenant’s liability. Landlords will of course seek to resist any such limits on the tenant’s general liability to keep the property in good order.
In some cases, primarily where the property is part of a larger building or estate, the landlord will retain responsibility for the structural and external repairs (perhaps excluding a shop fascia). However, the tenant will still be liable for the cost, recovered by way of a service or maintenance charge. Depending on the scale of the building or estate, this could be collected on an ad hoc basis or, more commonly, by a formal service charge, often collected quarterly in advance alongside the rent.
In this series of articles, we are aiming to give you a brief overview of the principal areas covered by a commercial lease. These articles are for guidance only and do not represent legal advice. If you need advice or assistance on leases or any other property concern, please do not hesitate to contact Andrew Rannie, Head of the Property Department for a free initial consultation.