Repair and deterioration due to age

The fact that the demised premises have deteriorated due to age or the elements does not mean that the work required to put right the deterioration falls outside the repairing covenant. It is still repair if the work to be done concerns a subsidiary part of the whole and does not amount to renewal of the whole or substantially the whole of the demised premises.

Lurcott v Wakely and Wheeler ([1911] 1 KB 905, CA (Eng)) concerned a lease of an old house. The front wall had to be demolished and rebuilt and the question was whether this constituted repair.  The English Court of Appeal decided that it was. The fact that the lack of repair was the result of the passage of time and the effect of the elements did not take the deterioration outside the scope of a covenant to repair. The question was whether the required work fell short of renewal of the whole or substantially the whole of the demised premises but only required the renewal of subsidiary parts.

Fletcher Moulton LJ said:

‘Now what is the meaning of keeping old premises in good condition? … It means that, considering that they are old premises, they must be kept in good condition as such premises.’ (at 916)

If the property is dilapidated at the date of the grant, the repairing covenant obliges the covenantor to put the property in repair.

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