Why is installing new cladding a legal problem?

On behalf of Attwaters Jameson Hill posted in Corporate, Company and Commercial on Wednesday, November 24th, 2021

Since the Grenfell Tower tragedy in 2017, improving the safety of multi-occupancy buildings has become a national priority. Tenants or landlords have often wanted to add new cladding or improve existing cladding, which has led to some disputes about who should pay. However this is not always as straight forward as you might think.

Tenant and landlord responsibilities

Many commercial landlords own the freehold of blocks of flats or mixed use blocks as an investment opportunity for rental income. Under the terms of multi-let building leases, it will usually be the landlord’s responsibility to organise maintenance and repair works, which tenants will  then be obliged to pay for, often through a service charge.

Structural repairs like exterior walls and the roof are generally handled by landlords, while tenants are usually responsible for non-structural internal maintenance and decoration only.

In commercial leases of a whole building this concern is less prevalent because the tenant will be paying the whole cost,  and will usually have the responsibility to carry out repairs themselves. This gives the tenant more control over both timing and price.

Check the lease

In the lease, the most common covenants given by a tenant are full repairing liability or internal only repair.

Full repairing liability means a tenant will be liable for repairing the whole property. Internal only repair means the tenant will be responsible only for repairing inside the property. This will often be the case if the property is part of a wider complex, such as a flat in a block or a shop in a shopping mall.

It is important also to check the landlord’s repairing liability. Just because a tenant is not liable to repair, say the structure, it does not automatically follow that the obligation will fall on the landlord.

When is a repair not a repair?

It is not always obvious when repairs are needed to a property. For example, when building standards change, this does not automatically warrant a repair.

For repairs to be necessary, the item in question must be in disrepair, which is generally understood to mean being in a worse condition than when it was installed.

Therefore, in our example if the cladding has not deteriorated, it will not be in need of repair meaning that the landlord here will not be obliged to organise those works nor will the tenant be obligated to pay for them. Equally the landlord is unlikley to replace the cladding as this would be an improvement (rather than a repair) and so they would not be able to recharge the cost of those works back to the tenants.

Where works are undertaken to residential accommodation, such as a block of flats, there are additional rules regarding tendering and invoicing the works to tenants.

How to avoid a dispute

The best way to avoid a dispute is to have a comprehensive lease that makes clear to both parties their responsibilities.

When working out who is responsible for maintaining the property, the starting point is always the terms of the lease. If the parties cannot resolve the dispute, court action may be required.

Be wary

In short, it is vital for both landlords and tenants to read the lease carefully and understand where responsibility lies for each party. It is also essential that work undertaken and invoiced as repairs meet the criteria for repairs.

Whether you’re a landlord or a tenant, we can help you understand your rights and responsibilities, offer advice on your next steps or work towards a dispute resolution. Contact us on enquiries@attwaters.co.uk

Sources:

https://www.gov.uk/renting-business-property-tenant-responsibilities

https://www.facilitatemagazine.com/good-practice-legal/legal-articles/2014/12/03/court-report-what-standard-repair-leases

https://www.constructionnews.co.uk/legal/it-will-take-more-than-the-building-safety-bill-to-make-buildings-safe-03-11-2021/

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