But why wait? Why deal with property disrepair matters during the lease term? Why not? Why would landlords not wish to actively manage their assets and ensure they maintain or increase in value? Why would landlords not wish to tackle disrepair before any re-finance or sale, or before tenants go bust? After all, big companies can fail.
Remedying property disrepair can be expensive. It is in the interest of both the landlord and tenant to keep appraised of property deterioration, so that it can be dealt with before there is further deterioration and higher costs.
Leaving matters to lease end when the tenant is no longer in occupation makes little sense. At that stage, the tenant no longer has any interest in the property. If so minded, they could use various tactics to avoid, or delay, paying the landlord for legitimate dilapidations claims. Meanwhile the landlord is left with a property in disrepair and facing potential void costs because they may not be able to re-let.
Landlords may then have to forward fund both the repair works, and the recovery of the monies expended from the tenant.
How can dilapidations be dealt with during the term of a lease?
Landlords can look to enforce dilapidations claims through a variety of legal routes during the lease term including forfeiture, specific performance and interim dilapidations claims.
All of the above, if you are looking to actually get repair undertaken, are likely to be as helpful as a chocolate fireguard, unless you have an unusual case or are deploying a very specific strategy.
Instead, landlords should be looking to enforce repair work through a Jervis v Harris clause in their lease. These clauses are commonly found in leases and allow a landlord to serve notice on the tenant informing them of their breaches of lease, relating to repair issues. The tenant then has a period of time within which to remedy those breaches, failing which the landlord is permitted to enter the property, undertake the works and claim them back as a debt.
Debunking some myths around Jervis v Harris enforcement actions
Some people resist using a Jervis v Harris clause because they do not understand them or have received advice from those who do not. If used properly, they do not constitute a breach of quiet enjoyment or derogation from grant. The Landlord and Tenant Act 1927 and Leasehold Property (Repairs) Act 1938 do not directly apply.
Some think it may give a landlord a bad reputation. Why? By the time a landlord is undertaking works, the tenant has already breached the lease twice and could have completely mitigated their position by undertaking works themselves. It is a contractual relationship after all; many tenants will certainly treat it that way as they try to evade liability at the end of the lease. So, why wait?
First published by BE News.
