Repairing covenant: no exclusion for damage caused by an inherent defect

Any damage to property falls within a repairing covenant provided it is on the right side of the repair / renewal divide; that is provided that it does not involve giving back something substantially different from what had been demised. There is no exclusion for damage caused by an inherent design defect. Further, it may be that curing the design defect is the only acceptable way of repairing the property and, again subject to the question of degree, this curing of the inherent defect will fall within the repairing covenant.

In Ravenseft Properties Ltd v Davstone (Holdings) Ltd ([1980] QB 12) there was a design defect in a building. Because of a failure to use expansion joints, parts of the stone cladding on a concrete structure began to bow away from the structure. The defective sections of cladding were replaced (this time with expansion joints included). The question was whether this work fell within the scope of the tenant’s repairing covenant. The tenant contended that it did not and that there was a doctrine to the effect that remedying damage due to an inherent design defect did not amount to repair.

The tenant failed. There is no doctrine of inherent defect. If the works required amount to repair, rather than renewal of substantially the whole, then they fall within the repairing covenant. The ratio of the cost of the work to the cost or value of the entire property can be an indicator of whether the work is repair or not. Or it might be right to look at whether the part being remedied was a small part of the whole or much more. Applying either of these approaches led to the conclusion that the works involved were repairs. Including expansion joints (curing the ‘inherent defect’) could be a necessary part of the repair. This was so in the present case.

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