Twinmar Holdings Ltd v Klarius UK Ltd & Ors (2013)
In a dilapidations claim, the court determined that rooflights which had become so degraded as to lose some of their translucence were no longer in good and substantial repair and condition as required by the lease. It also discussed, in obiter comments, the essential characteristics of a window for the purposes of a commercial lease.
The claimant (T) brought a dilapidations claim against the respondent (K).
T was the landlord of a single-storey warehouse and associated offices. The premises were built in 1993 and had been held by K under a 25-year lease from September 1993. The lease, which was determined in September 2008, contained two relevant clauses. The first required K to "keep the whole of the premises ... in good and substantial repair and condition". The second required it "when necessary" to "replace and renew and to keep clean all windows in the premises." In July 2007, T's surveyor prepared a schedule of dilapidations. While many of the items were agreed, a significant outstanding issue was T's claim for the cost of repairs to the glass-reinforced polyester rooflights in the warehouse. T alleged that by the end of the tenancy their surface had become so degraded that they were opaque and had to be treated with a coating to restore their translucence. The issues were whether (i) the condition of the rooflights at the expiry of the tenancy was such that they were not in "good and substantial repair and condition"; (ii) the rooflights were windows within the meaning of the lease.
(1) T was entitled to recover the cost of repairing the rooflights together with the cost of certain associated safety measures. At the end of the lease, the rooflights had to be, in so far as was possible by means of maintenance and repair, in the same condition as they had been at the beginning. They had to be capable of letting in about the same amount of light and they had to be structurally sound and weatherproof, Proudfoot v Hart (1890) 25 Q.B.D. 42 and Anstruther Gough Calthorpe v McOscar  1 K.B. 716 followed. Where a covenant required a tenant to keep the leased building in good and substantial repair and condition, he would have to carry out repairs that would make good any deterioration in the rooflights caused by time and the elements. Keeping the building in good and substantial condition involved taking whatever steps were necessary to achieve and maintain that standard. However, there would be no breach of covenant unless the building was actually out of repair. It was not sufficient that the building would become out of repair at some time after the expiry of the lease. However, if the building would become out of repair before the expiry of the lease, then if the tenant did not take the steps necessary to prevent that deterioration, he would do so at his own risk. A rooflight ceased to be in good condition within the meaning of the covenant once there had been a visible and a significant reduction in its translucence such that the light coming through had to be augmented by artificial lighting in weather conditions that would not have required additional lighting when the roof lights were new. On the evidence, that state of affairs had been reached by the time the lease expired. Thus, at the expiry of the lease, the rooflights were not in good and substantial repair and condition (see paras 14-15, 28-30, 36-37, 43-46 of judgment). (2) (Obiter) T had advanced a secondary argument that the rooflights were windows within the meaning of the lease and that K was therefore obliged to keep them clean and to renew them as necessary. While it was not necessary for the court to deal with that argument, it would do so. In the context of a lease, the essential characteristics of a window were that it was a glazed panel in a frame set into the external envelope of a building, the purpose of which was to let in light and, usually, to enable the building's occupants to see out. It was reasonably clear that a window did not have to be in a vertical plane and that "Velux" type windows were properly described as windows. While many windows were capable of being opened, that was not an essential characteristic .It was axiomatic that windows were typically made of glass. If a window was made of some other transparent material then, for it properly to be described as a window, it was essential that the material should behave like glass in terms of the transmission of light. The rooflights in the instant case were not windows: they were not glazed and had no frame (paras 31-35).
Judgment for claimant
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19 Apr 2013
Queen's Bench Division
LTL 23/4/2013 :  EWHC 944 (TCC)