In a recent High Court (HC) case the landlord (LL) of a block of flats asked the court to confirm that they were entitled to renew a communal heating and hot water system by completely replacing the equipment. The new system in question changed the distribution system from a communal boiler to one where heat exchanger units were installed to each flat.
The LL wanted the HC confirm that they were entitled to replace the hot water and central heating systems even where the replacement apparatus was not identical, as it would still provide the service which the LL was obliged to provide under the lease. The LL also wanted the HC to agree that they were entitled to disconnect the existing system and install the new one it their absolute discretion, as this was necessary for the proper maintenance, safety and administration of the building as a whole.
The repairing obligation in the lease of each flat referred to "central heating apparatus walls ceilings drain pipes wires and cables solely applicable to the flat and all fixtures and additions thereto". The LL argued that this repairing obligation included new and different apparatus for the delivery of heating and hot water, and emphasised that relevant clause included to term "additions". On the other hand, the tenants claimed that the new system would substantially increase their repairing obligations as they would now be responsible for maintaining new equipment that they had not contemplated when the lease was granted.
The HC disagreed with the LL and decided that the repairing covenant in the lease should be interpreted in line with what was contemplated by the parties at the outset. The HC felt that introducing the new system significantly changed the way that the lease operated.
On the legal advice line we receive lots of calls regarding disputes over repairs, as to whether these are the landlord or the tenant’s obligation, and the extent of what must be done. When it comes to residential property there are lots of provisions in housing legislation setting out who is responsible for what, whereas with commercial premises it’s much more a case of what does the lease say. The starting point is always to look at the wording of the relevant covenant(s), as every single word could be critical. It isn’t always as easy as one might imagine, for example, to decide when a repair or replacement in fact constitutes an improvement or alteration.
As ever, cases such as this are always decided on their own facts and circumstances, and legal advice should always be sought.