ßakes off inside, but not outside, the rented premises. If the time-limited contract concerns a single-family house, the tenant may have the duty to paint the outside as well and perhaps to repair the fences and the heating system. Only in very rare circumstances will the tenant have taken on any other of the duties mentioned.

If any one of the parties (A or B) has caused damage, either intentionally or through negligence, that party can be held liable in delict. The party at fault must pay damages regardless of who has the duty to repair. The measure of damages is based on a principle of restitution, which means that the injured party’s loss is to be compensated in full, but no enrichment must be obtained. If the party on whom the duty to repair rests, saves future repair costs, these will be deducted from the cost to repair the damages. Of course, obsolescence of any part of the building cannot fall under this rule.

The provisions in the Law on Commercial Premises Rent regarding repairs are very similar to the rules of the Law on Private Housing. The default rule is that the landlord (A) must keep every part of the rented premises in good repair (Law on Commercial Premises Rent Act, s. 16). This rule can be deviated from as is very often the case in practice. There are no standard contract provisions concerning the tenants taking on duties to repair, replace or renew. Although it is likely that the tenant will be responsible for the dilapidated fence, the paintwork and the central heating system becoming defective, it will depend on the terms of the individual contract. The damage on the roof will most likely be covered by an insurance policy taken out by the landlord and the obsolescence of the central heating system will also normally be the responsibility of the landlord.

If the damage is caused by a negligent act or omission, the party at fault can be held responsible in exactly the same way as is in the case of dwellings.

England

Generally speaking, it is for the parties to regulate the scope and existence of their respective repair obligations in express terms in the lease.72 Further, commercial leases’ repair obligations rest entirely on

72Though there may also be terms implied by the court – see Liverpool Civil Code v. Irwin [1976] 2 All ER 39.

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the terms of the lease in question.73 As to leases in general, the pattern is that the shorter the lease, the more burdens fall on the landlord.

There is some statutory regulation of the allocation of repair obligations in respect of short leases of dwelling houses under the Landlord and Tenant Act 1985 (LTA).74 LTA, s. 11 applies where there is a lease (a) of a dwelling house (b) which is granted on or after 24 October 1961 (c) for a term of less than seven years (LTA, s. 13). There are some exceptions which will not be considered here (LTA, s. 14). The basic machinery of the Act is to imply terms in favour of the tenant into the lease under section 11(1).75 These require the landlord ‘(a) to keep in repair the structure and exterior of the dwelling house (including drains, gutters and external pipes); (b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of water, gas or electricity); and (c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.’ The terms imposed by statute may not be contracted out of, but can be dispensed with by leave of the County Court (LTA, s. 12).

In those agricultural tenancies still existing under the Agricultural Holdings Act 1986 (AHA), the Minister for Agriculture, Fisheries and Food has the power to create model clauses which specify the distribution of, among other things, repair liability in respect of ‘fixed equipment’ (AHA, s. 6). Although those model clauses may be contracted out of, there is a right to challenge any leases departing from their terms in arbitration (AHA, s. 8). In the current edition of those model clauses,76 the liability for repair of various structures is divided between the landlord and the tenant.77

With those general points and specific qualifications in mind, and absent any express terms of covenant indicated, I proceed to consider

73See Demetriou v. Poolaction Ltd. [1991] 1 EGLR 100; Mancetter Developments Ltd. v. Garmanson Ltd. [1986] QB 1212.

74There is further regulation of very low rent accommodation under s. 8 of this Act, but given the rental market in England and Wales very few low rent leases are in existence.

75See too the extensions under s. 11(1A).

76The Agricultural (Maintenance, Repair and Insurance of Fixed Equipment) Regulations 1973, as amended by the Agricultural (Maintenance, Repair and Insurance of Fixed Equipment Regulations) (Amendment) Regulations 1988.

77See Schedule 1 to these regulations, in general.

the various matters complained of. The leading text on dilapidations law explores liability for repair by reference to five sequential questions:78

(a)Does the disrepair fall within the scope of the repair covenant?

(b)Is the subject matter of the covenant in damaged or deteriorated condition?

(c)Is the damage or deterioration such that it falls below the standard set by the covenant?

(d)What must be done to remedy the defect?

(e)Is there some other reason why the works should nonetheless not be carried out?

As to question (1), its aim is to ascertain the true scope of the repairing obligation imposed by the lease. Leases are over parcels of land called ‘demised premises’. The key question is the true extent of the demise. Sometimes (as in free-standing residential accommodation) the whole land is simply passed over to the tenant. In other cases (as in a block of flats), shared areas (‘the common parts’ – staircases, lifts, receptions) may well be retained by the landlord and managed by him/her. In a block of flats, the roof is also frequently retained by the landlord to facilitate repair (given that a defective roof will harm a great number of tenants). Indeed it appears that the law presumes the roof is retained in such cases.79 Applying the above to this case, one can say the following: defective central heating, roof damage and flaking paint (whether inside or outside) is in the first instance a question of construction of the express covenants. This is, however, subject to the special regime under the Law on Tenant Act 1985. In the case of tenancies qualifying thereunder, the central heating system would, if defective, be the landlord’s obligation under, s. 11(1)(c). In respect of the roof (while governed by s. 11(1)(a)), there is no obligation to reinstate or rebuild the premises in the case of destruction by, among other things, tempest. This would be limited to complete destruction. The landlord will, however, still have to replace tiles blown away.

As to question (2), the issue here is the definition of ‘repair’. As was stated by Atkin LJ in Anstruther-Gough-Calthorpe v. McOscar,80 the word ‘connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged’.

78These are simplified versions of the questions asked in Dowding and Reynolds,

Dilapidations Law, chs. 7–11.

79See Cockburn v. Smith [1924] KB 119. 80 [1924] 1 KB 716.

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Similarly, ‘disrepair’ means ‘a deterioration from some previous physical condition’.81 This can have quite remarkable results. Thus parts of a house which are poorly designed (but in a good state of repair) will not be in ‘disrepair’, even if the flaw renders the house ‘virtually unfit for human habitation’.82 At this juncture one might consider the ‘obsolescent’ central heating unit. Obsolescence is not synonymous with disrepair – if the unit is in working order and in a good state of maintenance, there would be no breach of a repairing covenant here as there is no disrepair. In relation to the other issues which are raised, for example, fences or roof damage, those are likely to be dilapidations which a tenant would be required to remedy, though it may also be that as a matter of contract storm damage to a roof would be a matter under the insurance covenants, and could be excluded from a tenant’s obligation. Whether or not flaking paint is disrepair or breach of decoration covenants is again a matter for the terms of a particular agreement, though it is possible for such a matter to amount to a tenant’s responsibility under either.

The liability for damage caused by one party83 is clearly a matter which can fall within the scope of a repairing covenant.84 Leaving this to one side, however, it is useful to look at other doctrines the common law has developed to deal with the issue. The question of wilful or negligent damage by a tenant is dealt with by virtue of a duty imposed on the tenant to use the land leased in a tenant-like manner. The tenant is responsible for any damage caused by himself/herself, his/her family or guests in breach of that obligation.85 A tenant is under the further obligation to remedy any breaches he/she has committed and to return the premises at the end of the lease with such damage remedied.86 Further, the common law developed a doctrine called ‘voluntary waste’, signifying a deliberate act87 which damages the value of the landlord’s reversion. As against this, however, ‘permissive waste’, ‘which has not come about by the [tenant’s] own acts, but comes

81Post OfÞce v. Aquarius Properties Limited [1987] 1 All ER 1055.

82Quick v. Taff-Ely Borough Council [1986] QB 809.

83A particularly helpful guide here is Dowding and Reynolds, Dilapidations Law, ch. 21.

84It is dealt with expressly by the model clauses in the Agricultural (Maintenance, Repair and Insurance of Fixed Equipment) Regulations 1973, see Schedule 1 Part 1 4(1)(b).

85See, in particular, Warren v. Keen [1954] 1 QB 15 24; Edge v. Pemberton (1843) 12 M. & W. 187; Regis Property Co. Limited v. Dudley [1959] AC 370 esp. 407 and 409.

86Marsden v. Edward Heys Limited [1927] 1 KB 1 8 (per Atkin LJ).

87Probably not an omission, though see Doe d Grubb v. Burlington (1833) 5 B. and Ad. 507;

Mancetter Developments Limited v. Garmanson [1986] 1 All ER 449.