To repair or not to repair? - In Business Summer 2008

19 June 2008

How can a new buyer or tenant protect themselves when it comes to liability for repair? It’s down to negotiation at the start!

Whether or not it’s fair, the law draws a fine but important distinction between a building which is in poor condition and one which is badly constructed or defective in the first place.  In the current state of the market a buyer or tenant may have greater bargaining power - but the general rule is that he takes the premises in the condition in which he finds it at the date of the contract or lease so it’s very much ‘buyer beware’!

Jackson v JH Watson Property Investment Limited
In the recent case of Jackson v JH Watson Property Investment Limited a tenant had bought a basement flat converted in 1996.  There were light wells in three sides of the flat and it suffered from damp caused by defective concrete which had left a gap into which water had seeped from the exterior wall.

Mr Jackson made good the damage and sued the landlord for the cost of the repairs but he lost the case because the judge found himself bound by earlier case law.

Effectively this stated that in the absence of fraud and deliberate concealment of damage or defect by seller or landlord, “if, on evidence, the premises are and at all times have been in the same physical condition as they were when constructed no want of repair has been proved”. (Post Office v Aquarius Properties Limited 1987).

Take action
If you’re buying a new or newly-converted flat, make sure you get a professional survey to include both the flat and, if possible, the building itself (even though it will be expensive and may not necessarily reveal any hidden defects). You will also need NHBC or similar cover. Where a commercial lease applies it may be possible to limit repairing obligation to exclude defects – although landlords are wary about agreeing to this. In any event it’s advisable to seek collateral warranties from contractors or those liable for design. 

For further information contact Andrew Gough on 01227 763939.

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