The principle of 'caveat emptor' (buyer beware) applies where a defect in the common parts of the building causes damage to a unit let to a tenant.

In the case Jackson v J H Watson Property Investment Ltd, Mr Jackson was the tenant of a flat under a new 125 year lease. Shortly after the lease was granted water started to leak into the flat, as a result of a defect in the concrete in the light wells which adjoined the flat. The light wells did not form part of the demise but were common parts.

There was no liability of the landlord under the repairing covenants in the lease. This was because the problem arose as a result of an inherent defect. As the state of the premises was no worse than when they had been constructed, there was no disrepair, and the repairing obligation did not apply.

Mr Jackson therefore tried to argue that the landlord was liable in nuisance. However, because the defect in the concrete was present prior to the granting of the lease, the principle of 'caveat emptor' or 'caveat lessee' applied.

Things to consider

The law does not imply a term into a tenancy that the property is fit for occupation. It is up to the tenant to satisfy itself, via a survey, searches and enquiries, that the premises are suitable for the purpose for which it is taking them. The tenant cannot rely on the law of nuisance to impose an obligation to rectify faulty construction work.

Tenants of new commercial buildings are well advised to obtain the benefit of collateral warranties from the construction and design team, to ensure that they are not left without a remedy in this situation.