A recent Court of Session decision makes it clear that a notice will not ordinarily be required for a tenant to be obliged to fulfil their repair and maintenance obligations under a lease.

Background

In PDPF GP Limited v Santander UK plc, the tenant (Santander) argued that they were not obliged to comply with their repair and maintenance obligations under a lease with PDPF GP Limited because they had not been given sufficient notice requiring them to comply with those obligations.

The landlord served a bulky schedule of dilapidations on the tenant two weeks before the expiry of the lease and the tenant refused to carry out the works. The tenant argued that they had no duty to repair the property because the landlord had not given three months notice, as required by the lease. The tenant relied on a provision of the lease which required the tenants to carry out works within three months of notice being provided by the landlord, failing which the landlord would be entitled to enter the premises and carry out works.

The Court considered three issues: whether the lease stipulated that the landlord must provide at least three months notice prior to its expiry; whether a term requiring reasonable notice should be implied; and whether the schedule of dilapidations constituted a valid notice?

Decision

The Court rejected the tenant's arguments in full. In reaching his conclusion, Lord Woolman decided that the commercially sensible interpretation of the lease was that the tenant was bound by its repair and maintenance obligations at all times, without the need for a notice. If that was not the case, the landlord would have imposed a much higher rent. He noted that if a tenant was only bound to carry out works if served with a notice and following an inspection by the landlord, the scheme of repairing obligations would be undermined. The provision the tenant relied on should be read separately. It simply sets out an alternative process in the event that the tenant fails to comply with its repairing obligations during the lease and the landlord elects to carry out the necessary works.

He dispensed with the other two questions quickly, considering that a notice term did not require to be implied to give meaning to the contract terms, and that the removal of licensed works was not a process which imposed formal notice obligations on landlords.

Comment

This case confirms that, in the absence of express and clear provisions to the contrary, a tenant will be under an ongoing obligation to comply with their repairing obligations during and at the end of a lease. Notice from the landlord is not required to trigger the tenant's repairing obligations. If the parties wish to agree that notice will be required they should ensure that any such terms are clearly drafted.