When Is A Repair A Repair Or Not A Repair?
- Bovellan
- Jul 1, 2024
- 5 min read
When Is A Repair A Repair Or Not A Repair?
Anyone with links to a long-leasehold flat will either directly or indirectly have been affected by a repair issue to their block, or could cite an anecdote. One of my favourite examples of an innovate repair was a the elaborate zig-zag use of conventional roof guttering to divert a leak in a communal stairwell down 5 flights of stairs. The less innovative aspect of the anecdote was the guttering had been there for a year.
What Is A Repair?
The issue has been well litigated as landlords and tenants have sought to argue and define what a repair is. The below are questions that can assist in deciding on works to carry out repairs. The weight attached to each will vary depending on the circumstances.
What is the context of the word repair in the Lease?
What is the overall condition of the building, its age, the state of the building at the date of the lease.
Have you considered the nature and expense of the proposed works and compared it with alternatives.
What is the value of the building and its anticipated lifespan.
How likely and how soon will the disrepair reoccur.
How will the works impact on the enjoyment and use of the building.
Several cases have also sought to define “repair” and also distinguish repairs from improvements. The leading case today Waaler v Hounslow LBC which set out a number of principles that we can follow:
Is the work repairing something physical condition that is worse than it was before?
Is the deterioration in condition eradicating an inherent defect?
Are the proposed works pre-empting to avoid the occurrence of deterioration?
Are there multiple reasonable methods of repairing? If so, it is for the landlord to choose which type of repair.
Are the proposed works ‘improvements’?
Using better materials, or complying with newer regulations will not necessarily mean the works are not a repair.
Where the proposed works are remedying a defect, the works in that case may be a repair and an improvement.
How Are These Principles Applied? Case Study Example
Let’s take a large multi-entrance residential block of 100 flats in an affluent area of central London with on-site concierge. Built in 1982 the building had an innovative TPO surface, unusually, as TPO was primarily used on commercial or industrial flat roofs. The roof has been patch repaired many times in reaction to leaks into top floor flats and the common stairwells.
Who Is Responsible For Repairing The Roof?
For this hypothetical example, the freeholder is the landlord, responsible for maintaining the roof. A typical lease therefore might go something like this:
In the lease, the Landlord covenants: “…To repair, decorate, maintain, renew… the Common Areas…”
The Lease defines Common Areas as: “…the roof, roof joists above the ceiling of the Premises in the Building…”
Can The Landlord Recover The Cost Of Repairing The Roof Through The Service Charge?
The landlord may recover the costs and expenses incurred in “repairing, decorating, maintaining, renewing the Common Areas…”
The Landlord Is Responsible For Repairing The Roof And Is Entitled To Recover The Cost Of Doing So. Does The Landlord Have Any Obligations Or Constraints?
The landlord has received advice from their building surveyor who as suggested one of the following solutions:
As the roof is not currently leaking, leave it as it is, and carry out a patch repair if/when it leaks again, delaying a full repair. This is because, only sections of the roof are currently in disrepair. But once works start on a particulat area, it may leave weak points requiring further works. So if any works are carried out, the likelihood of further work increases. The benefit of this option is saving money now. The downside is that it will temporarily impact residents if it does leak, and needs to be repaired. So doing the work in the future may result in the same dilemma but with the added disturbance of the leak.
Re-line the roof with a cheap material, with a view to doing this annually, until eventually full replacement will be required.
Replace the roof with an insurance-backed, premium product.
How Can The Questions From The Case Law Provided Help The Landlord To Decide The Right Option?
Firstly, the courts recognise as a general principle that the landlord is the final decision maker when it comes to the choice of repair. So provided that the landlord has thought through the options, and has a reasonable justification for their decision, the Courts aren’t likely to interfere. In fact, the threshold for anyone questioning the landlord’s position as arbiter is high.
But, the concept of ‘reasonableness’, discussed in another blog post, is a very real requirement for landlords to comply with, and for leaseholders to expect.
In our example, following the case law questions as a guide, we know that the proposed works are changing the physical condition to one of disrepair to repaired. There is no suggestion here there is an inherent defect. The roof has deteriorated, it is just not currently leaking, so it cannot be argued the works are pre-empting deterioration. The Landlord has considered options and may comply with today’s regulations.
The building was built in 1982 in an affluent area of London with a cutting-edge roofing system for its time. It has lasted longer than its expected lifespan due to good maintenance. The building is overall in good condition. Although some leases have been extended, most leases are as they were in 1982. There are no plans to knock down the building, so it is expected to remain standing well beyond the potential lifespan of any proposed roofing system.
The landlord has a considerable reserve fund of money to call upon, so interim invoices do not need to be sent to leaseholders through the service charge. The landlord is in favour of a new premium, insurance backed roofing product. They would like to carry out the work over the warmer months and not wait until leaks occur.
If the building was in an ex-local authority block in a suburb of less affluent area, the landlord’s decision to install a premium, insurance-backed, proprietary roofing system may not be reasonable if it also required leaseholders to pay a very large interim service charge payment, even the building always had a cutting-edge system.
However, it may be an equally reasonable argument to say that it is especially important to have a robust, long-lasting, reliable roof when the residents have limited resources to pay for continual ad-hoc repairs. It just might be reasonable to collect the funds to pay for the work over a longer period.
What Does This Mean For Leaseholders?
Leaseholders should hold their landlords and managing agent accountable for their decisions. Have you been told that certain repairs will be carried out to your building? You are entitled to ask your landlord to demonstrate they have acted reasonably. The threshold is high for leaseholders to show that their landlord has failed to act reasonably, and always remember that just because the decision the landlord took is different to a decision a leaseholder or any other person would have taken, doesn’t make it unreasonable. There may be an infinite number of reasonable choices.
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Bovellan is a leading residential block property managing agent based in London. We specialise in providing comprehensive residential block property management services tailored to the unique needs of Victorian and period residential blocks.