Disrepair During The Term: What Can A Landlord Do?

Most commercial leases make tenants responsible for keeping the property in good condition and repair. If a property falls into disrepair during the term of the lease, a landlord may be happy to wait until the end of the term and deal with this by way of a dilapidations claim to cover the costs of the repairs. However, a landlord may prefer to ensure that repair works are carried out immediately, to protect its investment and preserve the value of the property. If a tenant refuses to carry out the required work, what can a landlord do?

This note explains the "self-help" remedy for landlords, found in most leases, and often referred to as a Jervis v Harris clause. It also summarises the position if such a clause is not included.

What is a Jervis v Harris clause?

A Jervis v Harris clause is a lease clause which, following notice to the tenant, allows a landlord to enter the let property, carry out repair works and recover the cost of the work from the tenant if the tenant fails to do these works itself. The costs incurred by the landlord in carrying out any works pursuant to a clause of this kind become a debt due from the tenant to the landlord.

What are the advantages and disadvantages of including a Jervis v Harris clause?

A Jervis v Harris clause makes recovery of repair costs far more straightforward as it is a lot simpler to enforce a debt than to make a damages claim. When the debt is claimed, the landlord doesn't need prove anything beyond the fact that he went in and carried out the works - he doesn't need to prove loss or show that he has tried to mitigate the loss. A debt claim also avoids the statutory restrictions on damages claims.

The landlord can carry out the repairs to the standard he requires and to the satisfaction of his own surveyor. However, this does of course mean that the landlord must make the practical arrangements for the repair works out and use his own money for these (recovering from the tenant later).

The clause will enable the landlord to enter the property and make immediate repairs that are necessary to preserve the value of the property. However, care needs to be taken as the tenant may argue that entry was premature (and therefore a trespass), that the work carried out was outside the scope of the clause or that the cost of the work was unreasonable. The landlord may even face a damages claim by the tenant if the right of entry has not in fact arisen or has been exceeded.

Inclusion of the clause gives the...