Repair: not a fluctuating standard and changes in the character of the neighbourhood are irrelevant

A covenant to repair a building is a covenant to do what is needful and necessary for the maintenance of the structure so that it may be expected to last for its normal life. The standard does not fluctuate according to the character of the neighbourhood (a covenant to keep something ‘tenantable’ may be different in this respect).

Anstruther Gough Calthorpe v McOscar ([1924] 1 KB 716, CA (Eng)) concerned a ninety five year lease of three houses. The lease contained a repairing covenant. When the lease ended, the court had to consider the standard of work required to deal with dilapidations. The character of the area in which the houses stood had changed for the worse since the time when the lease was granted. Did this mean that the ‘repair’ works could be to a lesser standard? The Court of Appeal rejected this contention. Atkin LJ offered this definition of repair:

‘Repair … connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged. It involves renewal of subsidiary parts; it does not involve renewal of the whole. Time must be taken into account; an old article is not to be made new; but so far as repair can make good, or protect against the ravages of time and the elements, it must be undertaken.’ (at 733).

Atkin LJ approved the statement that the covenant requires a tenant to do what is needful and necessary for the maintenance of the structure so that it may be expected to last for its normal life.

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