Repair Clause Revival a case in point

Repair Clause Revival a case in point

Having recently attended a Professional Conference I wanted to share with you a case that I found really interesting. I honestly think CPD is great as you get to learn new things that other people have tested in Court and this makes you stronger when your thinking of your own clients.

The case we learned about was Forkner v Zas Ventures Ltd 2016 and it concerns the waiver and revival or a repair clause.

Generally speaking, if a tenant has breached their repair covenant by allowing something to fall into disrepair then the Tenant is in breach of their Lease until they actually put it back into repair.

In this case there was a mid-terrace house in Plaistow which was occupied by Lillian Forkner who had lived there all her life, initially with her parents and then when her mother passed away, with the agreement of her brother Brian and sister Pamela who became the new owners via their mothers will. Lillian had various mental issues and it was agreed that she should be allowed to continue to live in her home for the rest of her life. Lilian, as part of the agreement, had to maintain the property and insure it.

Sadly, her sister Pamela also passed away and Brian decided that he would sell the house to Landmark Investments, but he sold it on the understanding that Lillian should continue to live there as she had done so. Brian wrote a statutory declaration confirming the arrangements as they hadn’t been recorded in writing before. The statutory declaration also recorded that Lilian hadn’t repaired the house during the previous 23 years despite the agreement that she would. As you can imagine, by 2008, the property was in poor condition. There was damp, a crack to the wall and there was no heating.

In September 2011, Landmark Investments sold the property on to Mr Chaudhary and he also had to allow Lillian to stay in the property.

In 2012 a surveyor was engaged to report on the condition of the property and predictably, they identified many defects. The Landlord wrote to Lillian about these matters in December 2012 and reportedly tried to encourage Lillian to repair the property or leave the property voluntarily which could bring an end to her right to stay there. Neither happened and as such the Landlord started possession proceedings.

In September 2013, Mr Chaudhary transferred the property to Zas Ventures Ltd which is a company run by his Son.

During proceedings Lillian admitted that she had to repair and insure and that she hadn’t done this, but that she hadn’t been made to by any previous landlord, so the obligation must have been waived or she had been released from them.

The Court of Appeal confirmed the High Court decision that a waiver of breach of obligation to repair can occur where the landlord does nothing and says nothing about the Tenant performing their obligation to repair. The Court of Appeal also said that where a breach is waived, the tenant is not released completely, the obligation is simply suspended and can be revived later.

So, in this case, we can see that the repairing obligation had been waived by the brother and sister and until Landmark sold the property, but the new landlord was entitled to revive the obligation and did so by writing to Lillian following their surveyors report.

In conclusion Lillian couldn’t be held responsible for the defects that arose between 1985, when her mother passed away and the property was transferred and 2012 when the new owner contacted her about the disrepair, but she is responsible for any disrepair that occurred since the point the landlord wrote to her and as no works had been undertaken she was clearly in breach of the agreement and a possession order was granted.

Emma Catterall

Associate Director – Michael Parkes Surveyors Ltd

 

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