Viewpoint: Dilapidations and Landlord (Jervis v Harris) repair notices — what these mean for tenants, and how costs could be mitigated

Industrial | Office | Portfolios | Residential & Student | Retail & Leisure | Adam Farrer | 7 May 2019

The arrival of a repair notice during the term of the lease can be a daunting prospect, so it is important to know what your options are, as a tenant.

Most modern leases contain clauses which give the landlord the option to serve a repair notice on a tenant. Facilitated by what is referred to as a “Jervis v Harris” lease clause, these repair notices differ to traditional (S146) notices, and are sometimes a favourable option for landlords, because:

  • the landlord doesn’t have to wait until the end of a lease to take action against a tenant — the landlord can, if the tenant defaults, undertake works during the lease
  • costs for these works are recoverable as a “debt”, and are not capped (by S18 of the Landlord and Tenant Act 1927)
  • unlike traditional S146 repair notices, Jervis v Harris clauses bypass the hurdles of the Leasehold Property (Repairs) Act 1938

HOWEVER, landlords have to tread very carefully when issuing repair notices and, in the event the tenant fails to act, when undertaking works on site. There may be a number of factors which could make repair notices, or the justification for landlords re-entering the premises, invalid.

If the notice is valid, tenants may be able to undertake cost effective repairs which can satisfy a valid landlord’s repair notice, so taking expert advice is essential.

Key things to consider if you receive a notice to repair:

  1. Seek advice from your legal team to check whether the notice has been served legitimately.
  2. Contact us to review the schedule of repair within the notice so we can advise you on the best way forward.

We’ll review and advise on whether:

  • the works within the repair notice are valid, reasonable and the following factors have been considered:
    • the tenant’s repairing obligations
    • works are necessary or possible without seriously disrupting a tenant’s trade
    • repairs are proportionate to the age, character and location of a building

Why talk to us?

  • We’ll help you understand what actions should you undertake as a tenant to:
    • limit your potential exposure
    • to avoid expensive repair costs being demanded by the landlord
Adam Farrer

Adam Farrer

+44 (0) 7880 702 837

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