Lawbite: Patch or replace? High Court confirms landlords can choose the reasonable repair option

The court also confirmed that the landlord may, in appropriate circumstances, require tenants to vacate premises in order that it can carry out structural repairs, despite the tenant’s right to quiet enjoyment.

The question of what is “reasonable” is highly fact-sensitive and turns on the lease wording, the nature of the works and the risks involved. However, the decision provides a useful illustration of how the courts will balance a landlord’s repairing obligations and a tenant’s right to quiet enjoyment where structural works are needed in mixed-use buildings with long leases.

It will be of interest to landlords, managing agents and tenants of multi-let buildings in England and Wales.

Background

MSA Properties Limited (the "Freeholder")  is the freeholder of 1/1A The Drapery, Northampton (the "Building"). Drapery Northampton Limited (the "Tenant") is the long lessee of the first to fourth floors of the Building, which contain 25 residential flats. The ground floor comprises two commercial units let to commercial tenants, together with a large loading bay and refuse bin store.

In August 2022, part of the ceiling of the loading bay beneath flats 16 and 17 (the "Flats") collapsed. The collapse revealed evidence of historic water leaks and a number of rotten structural ceiling joists supporting the first floor.

Whilst the parties agreed that remedial works were required, a dispute arose as to both the extent of the repairs required to the joists and the manner in which those repairs should be carried out. The Freeholder contended that the damaged joists required replacement and that the works could only safely be undertaken from above, requiring the Flats to be vacated. The Tenant argued that the joists could be repaired and that the works could instead be undertaken from below, avoiding the need to displace occupiers.

The Court was asked to determine four key issues:

1. Should the defective joists be replaced or repaired?

The Court preferred the evidence of the Freeholder's structural engineering expert and found that the extent of the decay meant that six of the seven joists required complete replacement. Localised repairs would not adequately remedy the damage.

2. Was the Freeholder was entitled to choose replacement rather than repair?

The Court rejected the Tenant’s argument that a landlord cannot reasonably choose a repair method that requires a tenant to vacate where another possible method exists. Instead, it confirmed that where more than one repair method is available, the landlord is generally entitled to choose how it complies with its repairing obligations, provided that choice is reasonable in the circumstances and appropriately balances the tenant's right to quiet enjoyment.

3. Could the works be carried out without access to the Flats?

The Court accepted the Freeholder's evidence that carrying out the works from above was significantly safer and more consistent with the risk-avoidance principles reflected in relevant construction regulations. While the works might theoretically have been possible from below, that approach would have involved materially greater risks to occupiers, contractors and other building users. The Court therefore held that the works should be undertaken from above.

4. Was the Tenant entitled to refuse access under the lease?

Having found that replacement from above was a reasonable method of repair, the Court concluded that the Tenant did not have a lawful basis for refusing access.

In reaching that conclusion, the Court emphasised that the lease contained a broad repairing covenant and a generous right of entry in favour of the Freeholder. Although the Tenant's right to quiet enjoyment remained relevant, it did not override the Freeholder's right to carry out reasonable repair works.

Decision

The Freeholder was entitled to access the Flats in order to undertake the replacement and repair works. It was granted six weeks' exclusive possession of the Flats to carry out the works, reducing the ten-week period originally sought.

Key takeaways

• Quiet enjoyment is not a trump card – the Court rejected the Tenant's argument that a landlord can only require a tenant to vacate where there is no alternative repair method available. The Judge observed that such an approach would force landlords into perpetual "piecemeal repairs", so that "a leaky roof would forever be patched up, and never wholly replaced". Instead, the balance between repair obligations and quiet enjoyment is a fact-sensitive exercise in which neither right automatically prevails.
• Reasonableness remains the governing principle - the Court confirmed that landlords generally retain discretion as to how they fulfil their repairing obligations, but that discretion is not unfettered. Whether a chosen method is reasonable will depend on a range of factors including the lease terms, the extent of the disrepair, the risks and benefits of the available repair options and their impact on the tenant. A repair method requiring a tenant to vacate may be justified, but only where there is a sufficiently weighty reason for the resulting interference.
• Lease wording matters - the Judge placed weight on the fact that the covenant for quiet enjoyment and the landlord's repairing covenant appeared in the same clause of the lease. This demonstrated that the parties contemplated substantial repair works being carried out during the term and that repairing obligations were not inherently inconsistent with quiet enjoyment. The broad right of entry granted to the Freeholder further reinforced that conclusion.
• Evidence, particularly expert evidence, is critical - the Freeholder succeeded because it was able to justify its preferred method of repair through detailed expert evidence addressing safety risks and compliance with the relevant Construction regulations. The Court ultimately preferred the evidence that was more comprehensive and better supported by the underlying investigation. 
• All claims require proof - the Tenant brought a counterclaim for lost rental income, alleging that the Freeholder's failure to reinstate fire-retardant protection to the loading bay ceiling within a reasonable time had resulted in a fire safety prohibition notice affecting the Flats. Although the Court found that the Freeholder had breached its repairing obligations, the counterclaim failed because the Tenant could not produce sufficient evidence to prove its alleged losses. The judgment highlights that proving breach alone is insufficient; parties seeking damages must also provide clear evidence of their loss.