Most commercial leases make tenants responsible for keeping the property in good condition and repair. If a property falls into disrepair during the term of the lease, a landlord may be happy to wait until the end of the term and deal with this by way of a dilapidations claim to cover the costs of the repairs. However, a landlord may prefer to ensure that repair works are carried out immediately, to protect its investment and preserve the value of the property. If a tenant refuses to carry out the required work, what can a landlord do?
This note explains the “self-help” remedy for landlords, found in most leases, and often referred to as a Jervis v Harris clause. It also summarises the position if such a clause is not included.
What is a Jervis v Harris clause?
A Jervis v Harris clause is a lease clause which, following notice to the tenant, allows a landlord to enter the let property, carry out repair works and recover the cost of the work from the tenant if the tenant fails to do these works itself. The costs incurred by the landlord in carrying out any works pursuant to a clause of this kind become a debt due from the tenant to the landlord.
What are the advantages and disadvantages of including a Jervis v Harris clause?
A Jervis v Harris clause makes recovery of repair costs far more straightforward as it is a lot simpler to enforce a debt than to make a damages claim. When the debt is claimed, the landlord doesn’t need prove anything beyond the fact that he went in and carried out the works – he doesn’t need to prove loss or show that he has tried to mitigate the loss. A debt claim also avoids the statutory restrictions on damages claims.
The landlord can carry out the repairs to the standard he requires and to the satisfaction of his own surveyor. However, this does of course mean that the landlord must make the practical arrangements for the repair works out and use his own money for these (recovering from the tenant later).
The clause will enable the landlord to enter the property and make immediate repairs that are necessary to preserve the value of the property. However, care needs to be taken as the tenant may argue that entry was premature (and therefore a trespass), that the work carried out was outside the scope of the clause or that the cost of the work was unreasonable. The landlord may even face a damages claim by the tenant if the right of entry has not in fact arisen or has been exceeded.
Inclusion of the clause gives the landlord the opportunity to remove any liability it may have had to third parties because of the dangerous state of the property, and to comply with any notices it receives from the local authority relating to the repair and condition of the property. However, there is a risk that a clause of this kind may make the landlord liable to third parties under the Defective Premises Act when he may not otherwise have been, as he could be deemed to have an obligation to carry out the repairs.
What if the lease doesn’t contain a Jervis v Harris clause?
If the lease does not contain a Jervis v Harris clause, the landlord is not permitted to enter the property in order to carry out repairs which are the tenant’s responsibility. Any attempt to do so may constitute a trespass and could amount to a breach of the covenant for quiet enjoyment. So, what other remedies does a landlord have?
A tenant’s failure to comply with its repairing covenant entitles the landlord to claim damages from the tenant. However, this right may be restricted by statute:
- Leasehold Property (Repairs) Act 1938: the landlord’s right to claim damages from the tenant is limited by section 1 of this act. Where the lease was granted for a term of at least seven years and has at least three years left to run, the landlord must follow a statutory procedure before he can make a damages claim for lack of repair.
- Landlord and Tenant Act 1927: section 18(1) of this act limits the damages available for breach of a repairing covenant to the amount by which the value of the landlord’s interest in the property has been reduced because of the breach. Where the property will be pulled down at the end of the term, no damages are recoverable.
These statutory restrictions do not apply where works are carried out under a Jervis v Harris clause because the claim is for a debt rather than damages.
This remedy is only available where the landlord has an express right of re-entry in the event of the property falling into disrepair (commercial leases almost always include this). However, the landlord may only forfeit for disrepair after the necessary statutory procedure has been followed, including giving the tenant the opportunity to remedy the breach. The tenant is also likely to obtain relief from forfeiture by agreeing to do the works within a specified period.
An award of specific performance means that the court requires the tenant to carry out the necessary repair works. However, while it is available in principle for disrepair under a lease it will very rarely be granted.
Without a Jervis v Harris clause, the remedies available to a landlord when a property falls into disrepair during the term are limited. It is therefore advisable to always include a carefully drafted clause of this kind. We can advise both landlords and tenants on the drafting of these clauses and we can also advise on the steps to take if disrepair occurs during the term of the lease. Please speak to any of the solicitors in our real estate or property litigation teams.