Remedies

If the landlord has failed to carry out work to an area of a building that is demised to the tenant, then it seems clear that the tenant can carry out the work in default.

If the landlord has failed to carry out work to an area of the building that is not demised to the tenant, there may be an express right to enter that part of the building, particularly if the tenant is suffering damage as a result of the landlord’s breach, and carry out the work. In the absence of an express right the tenant should be cautious about undertaking the work, as there may be no implied right of entry and he may be committing a trespass. One might argue in such cases that the tenant would be abating a legal nuisance. Provided it did enough to achieve that and no more, one would think it harsh were the tenant then to be held liable for a trespass.

In either case, if the tenant plans to seek to recover the cost from the landlord, it would be best advised to notify the landlord first that it considers the landlord to be in breach of its obligations and invite the landlord to carry out the work, or at the very least, inspect the area concerned. If the landlord does not carry out the work or inspect the area, the tenant should retain evidence (preferably including photographs) of the breach by the landlord. This will enable the tenant to answer any later assertion by the landlord that it was not in breach or that the work carried out by the tenant was unnecessary or unreasonable in extent or cost. The tenant should maintain a clear record of the work undertaken and its cost. In relation to cost, unless there is some urgency, the tenant should obtain at least two estimates of the cost of the required work. This will answer a landlord’s allegation that it had overspent and therefore should not recover all the expenditure incurred.