Remedies

Generally a tenant will only require a remedy during the term, since it will have no interest in the property after termination, although it may, of course, still claim damages after the end of the term if it has suffered loss during the term.

A lease of commercial property may contain a landlord’s covenant to repair the demised premises and/or other parts of the property (for example, the common parts). The scope of the landlord’s repairing covenant may be contained in the service charge provision, if not alongside the landlord’s other covenants and should be fully considered, as should any provision restricting the remedy or remedies available to the tenant.

Generally, a tenant cannot enforce a landlord’s covenant to repair within the demised premises unless the tenant has first given the landlord notice (in writing) of the breach. In respect of repairs outside the demise (for example, within the common parts of the property), no notice is required. If the landlord’s breach is a simple one, a schedule may not be required. More complex claims, with numerous breaches, may be best set out in schedule form (similar in form to a landlord’s claim against a tenant). Whether or not the claim should be costed will depend on the remedy or remedies being sought; one prepared where the tenant is proposing self-help probably does not need initially to be costed while one prepared in connection with a damages or set-off claim may need to be, depending on the heads of damage.

Although there is generally no formal requirement in the lease for a tenant’s claim to be served by its solicitors on the landlord, it commonly is.

Where the landlord is in breach of covenant, the tenant has a number of options:

• damages;
• specific performance;
• to carry out the work itself (self help);
• set-off (the deduction of rent);
• repudiation and quitting the building;
• insolvency; and
• frustration.

The surveyor should seek to understand the remedy or remedies being sought by the tenant. Not all of the remedies will be suitable for any particular case – and, in any case, damages are the only remedy once the lease has ended. Some may be combined, or different remedies can be sought in the alternative. The surveyor should also ascertain what action the tenant has taken/may take in respect of the premises following the breach, in terms of remaining in occupation, vacating, selling his interest or subletting.

Obviously, the restrictions under, say, the Leasehold Property (Repairs) Act 1938 have no application in a claim by a tenant against a landlord. In addition the Dilapidations Protocol does not apply to claims by tenants against landlords. There is, however, a Housing Disrepair Pre-Action Protocol of which practitioners considering a claim by a tenant of residential property should be aware.