Remedies

In addition to general points (including discussion of Jervis v Harris clauses), this subsection considers:

• the notice;
• the entry and works;
• where access is refused; and
• demand and enforcement.

Most modern leases contain a clause that enables the landlord to exercise this remedy through allowing the landlord the right to:

• enter the building (usually subject to specific notice requirements);
• inspect it for compliance by the tenant with the terms of the tenancy concerning the condition of the building; and then
• give a notice (commonly known as a ‘repairs notice’) to the tenant requiring it to carry out necessary work within a specified period of time, and indicating that, in default, the landlord will enter the building, carry out the work and seek to recover the cost of doing so from the tenant.

Such a clause is now commonly known as a Jervis v Harris clause (after Jervis v Harris [1996] Ch. 195). In Jervis v Harris, it was held that the landlord’s claim against the tenant, having entered and carried out the specified work in default of the tenant, was not a claim for damages, but for a debt. As a consequence the Leasehold Property (Repairs) Act 1938 was held not to apply. If the clause refers to the tenant paying ‘damages’, then the 1938 Act might apply. Most modern leases do not describe the landlord’s costs in that way, however, but as payable on demand, that is, as a debt.

Although Jervis v Harris was concerned with the 1938 Act, it is difficult to see any reason why the principle should not equally apply to section 18(1) of the 1927 Act, such that it will not operate to limit the landlord’s claim made under the Jervis v Harris clause. As a consequence, the landlord could have the work carried out late on in the term of the tenancy, effectively at the tenant’s expense, without having to deal with section 18(1).

In practice tenants faced with a Jervis v Harris claim often carry out the work themselves without the landlord having to do so. The motivation for the tenant is that it retains control of the manner in which the work is carried out and its cost. If the tenant fails to do the required work, the disadvantage to the landlord carrying out the work is that it has to ‘forward fund’ the work, and may not be able to recover the cost from the tenant. The landlord may be able to forfeit the tenancy as a consequence but this may not be a desirable result.

Although Jervis v Harris is of great assistance to landlords, landlords will not always be able to operate the clause satisfactorily. In Creska Ltd v Hammersmith and Fulham London Borough Council (No. 2) [2000] L&TR 288 the court limited the landlord’s rights. The tenant was able to avoid the disruption that would have been caused by the landlord entering the property to remedy an underfloor central heating system as the tenant was able to show that it had otherwise reasonably complied with its obligations under the lease, which still had some years to run, and that it had set aside in a sinking fund a sum of money which it had intended to apply to remedying the central heating system at the end of the lease. In those circumstances, the court agreed it would have been inequitable for the landlord to enter the property and carry out the work as the tenant had demonstrated that, although the breach of covenants existed, the value of the landlord’s interest:

• was not diminished as the tenant was paying rent; and
• was not likely to be affected because the tenant had demonstrated the ability and intention to remedy the breaches at the end of the lease.

It has to be stressed that the wording of these clauses is critical, as the landlord’s rights vary from lease to lease. For instance, some leases give the landlord a right only to remedy breaches of the repairing covenant. If works are done where there was no breach may invalidate later steps under the clause.

Even more seriously, a landlord actually going ahead and carrying out other types of work while his contractor is on site may lead to counter-claims from the tenant for breach of quiet enjoyment, trespass or even that the landlord has peaceably forfeited the lease – clearly undesirable and with very serious consequences. Therefore it is extremely important to ensure firstly that the items being enforced by the landlord are breaches of covenant and secondly that the lease contains the right to carry out the work. The terms of the tenancy must be carefully considered to ensure that any conditions set out in the lease are satisfied before the landlord undertakes any work. It is strongly recommended that legal advice is sought when undertaking these types of instructions, and always where there are any issues of legal interpretation.

Not all leases contain a Jervis v Harris clause. Where there is no such clause, theoretically, the landlord will not be able to enter in the manner described above. However, legal advice should be sought because, in practice, there may be lawful means of achieving a similar, if not as complete, result. On the other hand the inclusion of such a clause may make the landlord liable to third parties under the Defective Premises Act 1972, which means that the landlord, in the absence of action by the tenant, may actually be compelled to carry out work in order to make the premises safe.

Notice

Generally, where a landlord is going to apply the Jervis v Harris clause in a lease, it requires no more than a suitable letter specifically referring to and complying with any express provisions of the lease. In addition, it should avoid specifying the remedial work to be carried out. There are often a number of ways of remedying a breach, and the landlord could find that it has specified an inappropriate method or that the tenant carries out the work in a different manner, leaving the way open for a dispute about whether or not it has complied with the notice. Given the technical nature of the documents required in this instance, they should be served by a solicitor.

Once notice has been served on the tenant, there is usually a specific time period for the tenant to undertake the works.

Entry and works

If a proper notice has been given and the tenant has failed to comply with it within the specified time period, the landlord may then enter the building, but only to carry out the works required by the notice and in accordance with the tenant’s covenants concerning the condition of the building. Therefore, although it is not impossible that additional work may be carried out, such a situation will be rare. Consequently, the landlord’s original inspection should be as complete as possible and the notice list clearly the defects complained of.

Bearing in mind that there may be more than one way of remedying a breach, and although the failure by the tenant to comply with the notice results in it losing its ability to choose the appropriate method, the landlord should be careful to limit its choice of method to one that is reasonable and preferably to the one that is most favourable to the tenant. The landlord would also be well advised to ensure that it does not stay at the building for an unreasonable period of time, that the cost of the work is reasonable and that it is carried out to a reasonable standard. It should also ensure that no damage is caused to the tenant by the carrying out of the works (beyond, one would suggest, the damage that the tenant would have endured had it done the requisite work itself). Otherwise, there may be a later dispute when the landlord seeks to recover the cost of carrying out the work from the tenant.

Notwithstanding that the landlord may be entitled to enter the property and carry out the work, the landlord will need to be careful not to breach the ‘quiet enjoyment’ covenant that it will have either expressly or by implication given to the tenant (see Goldmile Properties Ltd v Speiro Lechouritis [2003] EWCA Civ 49).

Where access is refused

If the tenant declines to give access, then the only options for the landlord are to seek an injunction from the court by which the court will order the tenant to give access, or to take forfeiture action (if this is possible), having first served a section 146 notice (see under Forfeiture).

An injunction is a discretionary remedy and will not always be granted (see Creska Ltd v Hammersmith and Fulham London Borough Council (No. 2) [2000] L&TR 288). In some circumstances, the court might consider the landlord’s right to be oppressive, especially when considering the nature and extent of the tenant’s breach complained of. It might consider that the landlord can be adequately compensated in damages.

Demand and enforcement

Once the landlord has gained access and has carried out the work, it can make a demand of the tenant for reimbursement of the costs incurred. If payment is not made, then it can enforce the terms of the lease in the usual way. That does not rule out the possibility of challenge even at that point, as discussed earlier.

In summary, the options for enforcement might be to sue for the sum as a debt or to forfeit, or the landlord might consider initiating insolvency action. (A detailed discussion of insolvency is outside the scope of this section.) Where this is contemplated, specialist advice should be sought, and the consequences considered carefully (for example, it might result in the lease coming to an end, which may not be an outcome desired by the landlord).