Summary
Summary LAWS10177 Commercial Leases Week 4 and Week 5- Repairing obligations
- Module
- LAWS10177
- Institution
- The University Of Edinburgh (ED)
LAWS10177 Commercial Leases Week 4 and Week 5- Repairing obligations
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Week 4- Seminar 4Condition of the property and the repairing obligation
To take reasonable care of the property
3.7 At common law a tenant has an obligation to take reasonable care of the subjects. If the
tenant fails in this obligation, the landlord will not be liable for any resulting repairs and the
tenant may be liable to the landlord in damages. [19]
In Mickel v M'Coard[20], where a tenant left a house empty during the winter without either
turning off the water or giving notice to the landlord of her intentions, it was held that she
was liable for damage caused by burst pipes.
If the tenant's negligent behaviour is of a continuing nature (for example by using the
property in a way that creates a fire hazard) the landlord may obtain an interdict to have the
offending practice stopped.[21]
The tenant's duty of care towards the property may not automatically end along with the
lease. In Fry's Metals Ltd v Durastic Ltd,[22] factory and office premises were broken into and
vandalised, after the lease had terminated but before the tenants had returned the keys to
the landlords. It was held that the damage was caused by the tenants' negligence in having
the alarm systems disconnected prematurely, and they were liable to the landlords in
damages.
To provide subjects that are reasonably fit for the purpose for which they are let [36]
3.12 This obligation and the obligation to carry out repairs should really be considered
together, as the second is the corollary of the first. In relation to urban subjects (ie where
the main subject of let is a building or buildings) [37] the landlord must provide subjects that
are in a tenantable or habitable condition (or, to express it in another way, which are
reasonably fit for the purpose of the let) .
CONDITION OF THE PROPERTY: THE LANDLORD'S INITIAL OBLIGATION
Nature of obligation
3.26 We saw above that the landlord's initial obligation is to provide subjects that are
reasonably fit for the purpose of the let, also expressed as an obligation to provide subjects
that are in a tenantable or habitable condition.[75]
This does not mean that the property needs to be fit for a particular kind of business. For
example, in Glebe Sugar Refining Co v Paterson [76] a warehouse was let to a sugar refining
, company which used it to store sugar. A month after they took entry the warehouse
collapsed, and the tenants sued the landlords claiming that, because of insecure
foundations, the building was unsuitable for the purpose of the let. It was held that, within
the practice in their own trade, the tenants had overloaded the warehouse. They had
therefore failed to ascertain for themselves the suitability of the subjects for their business,
and they were held liable to the landlords in damages. It was in fact a case of the tenants
failing in their implied obligation to take reasonable care of the property. [77]
3.27 Remedies If the condition of the property makes it substantially unsuitable, this will be
a material breach of contract entitling the tenant to rescind. A lesser breach may entitle the
tenant to damages or to retain the rent
Meaning of 'tenantable or habitable'
3.29 This relates both to the landlord's initial obligation and also to the continuing obligation
to carry out repairs which is discussed below. The expression 'tenantable or habitable'
contains several distinct elements. The main ones are:
(1) The property should be wind and watertight;
(2) It should be free from damp;
(3) It should be in a safe condition.
To these there may be added freedom from vermin [85] and adequate drainage and water
supply.[86] The case law on these latter two elements tends to be rather old, no doubt due to
modern public health measures such as environmental health services and publicly
maintained drainage, but they may sometimes be relevant.
3.30 Wind and watertight The landlord has a duty to keep the premises wind and water
tight so as to be proof against the ordinary attacks of the elements (Wolfson v Forrester
1910 SC 675). However, this does not include liability for exceptional encroachments of
water from other causes.
Damp It has long been established that the landlord's obligation can include the rectification
of dampness, (Kippen v Oppenheim) despite at least one maverick decision to the contrary.
[89]
This can be either rising damp or (as in a number of modern cases) dampness due to
condensation. In Gunn v National Coal Board,[90] where rising damp had caused dampness
and mould in the house concerned, the tenant was held to be entitled to damages.
Moreover, the landlord's obligation will not be met if a house suffering from coldness and
damp can only be rendered habitable by the application of excessive heating. As Sheriff
Kearney expressed it in McCarthy v Glasgow District Council
Duty of inspection
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