Summary

A tenant was entitled to seek damages for the landlords' failure to carry out their repair and maintenance obligations despite the existence of a clause that limited the landlords' liability where the tenant failed to inform them of the need for repairs, as the landlords had waived the benefit of that clause by advising the tenant of their intention to carry out the repairs.

Facts

The appellant landlord (P) appealed against a decision of the court in relation to the correct interpretation of a repairing clause in a lease that P had entered into with the respondent tenant (D). Under the terms of the lease, P was required to maintain and repair the roof of demised premises that D occupied. P's obligations were qualified by a liability clause that stated that P would not be liable to D in respect of P's failure to carry out its maintenance and repair duties until D had notified P of such failure and P had failed within a reasonable time to remedy the same. The lease also provided for a cap on D's service charge contributions towards the costs and expenses of repair and maintenance within the first five years of the lease. P had informed D of its intention to replace the roof, with the proposed completion date within D's five-year period. However, P then communicated to D that the work would not be completed until after the end of the time period, which meant that D's contributions towards the replacement of the roof would not be capped. D brought proceedings against P for failure to perform its repair and maintenance obligations under the lease. The trial judge held that the replacement roof should have been completed within the five-year limit and that therefore D would have been able to rely on the cap. P appealed on the basis that D had not notified it of the need to repair the roof as required under the liability clause. The court was required to determine (i) the correct construction of the liability clause; (ii) whether P was in breach of its covenant to use all reasonable endeavours to meet the repair and maintenance obligations.

Held

(1) P had waived the benefit of the provision contained in the liability clause. P had already informed D of its intention to replace the roof, and therefore it was clear that P knew that the roof was in need of repair. In essence P had communicated to D that it did not intend to rely upon the need for notice from D before carrying out its repair and maintenance obligations. Therefore D was not precluded from making its claim for damages despite the fact that it did not give notice to P. (2) Had P used all reasonable endeavours to comply with its obligations under the lease, the repair work would not have been delayed. P had initially stated when the work would be completed, to which all parties were agreed. However, toward the end of the proposed period P produced a revised programme for the completion of the works. P did not give any explanation as to why the work was not carried out as originally agreed.

Appeal dismissed