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Breaches of repair

Most commercial leases make it the responsibility of the tenant to keep the property in a state of good condition and repair.

When they fail to do this, and the lease still has some time to run, the landlord either has to wait till the end of the term, and deal with it by way of a dilapidations claim or take action to get the repair works carried out without delay.

Wards Solicitors’ specialist Landlord and Tenant Disputes Team can provide expert guidance on your options and help you achieve a resolution as quickly and as cost effectively as possible in this situation.

Here, we explain in brief, what to do when a tenant refuses to carry out the remedial work you think is necessary to protect your investment and the value of your property.

Does the lease allow you to do the work yourself and claim it back from the tenant?

A Jervis v Harris clause allows a landlord, having given notice to the tenant, to enter the let property and carry out the repairs, to meet their own standards and initially at their own expense.

The costs incurred when a clause of this kind exists become a debt due from the tenant.

However, care must be taken to make sure that the tenant can’t claim the entry was premature, and therefore trespass, or that the work didn’t really need doing or the costs were unreasonable.

What if the lease doesn’t allow me to do the repairs myself?

 Without the appropriate clause in the lease, you are not allowed to enter the property and carry out repairs which are the tenant’s responsibility.

This could be deemed trespass or a breach of the covenant for quiet enjoyment.

How do I claim damages?

Most commercial leases contain repairing covenants that a tenant should comply with.

Breach of these may give you the opportunity to claim damages from the tenant. However, there are certain restrictions that may invalidate your claim for damages.

Contact us for more information on what these are and what to do in each circumstance.

How do I use forfeiture to get my property back?

Forfeiture enables a landlord to re-enter their property following a breach by the tenant, and by doing so, terminate the lease. Depending upon the reason for forfeiture, termination can take place with immediate effect, or following a period of notice.

Forfeiture can take place either by peaceable re-entry or by commencing court proceedings for possession of the leased property.

What is peaceable re-entry?

Peaceable re-entry is when the landlord changes the locks when the tenant is not in the property.

Usually, this is carried out by commercial bailiffs.

Going to court

Alternatively, the landlord can commence court proceedings for possession of the leased property by obtaining a possession order.This permits the landlord to enter the property and terminate the lease.

Caution

Landlords should be careful when proceeding with forfeiture, especially if there is a risk that the property will be left vacant for some time as a result.

In other words, you should consider the letting market before taking any steps to forfeit the lease.

Landlords cannot pursue a right of forfeiture for breach of covenant, other than for non-payment of rent, without serving a section 146 notice.

It’s also important to remember that:

  • Before instigating any forfeiture proceedings, landlords should check whether the right of forfeiture has been waived;
  • Once forfeiture proceedings have begun, you tenant has the legal right to apply for relief from forfeiture. If successful, this means the relief will be restored to what it was before.

Get in touch

For advice or to discuss a dispute, please contact Solicitor Richard Darbinian on 0117 929 4811 or richard.darbinian@wards.uk.com.

Click here to see our full Commercial Landlord and Tenant Disputes Team.

You can find your nearest Wards office here.

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UPDATE October 2020

We have now re-opened our branches to clients but all appointments and visits must be pre-booked to comply with government guidance.

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We look forward to hearing from you.  A list of our 11 branches is available here.

Thank you.

Wards Solicitors LLP