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contractual rights to re-enter to repair - Jervis v Harris clauses revisited

13 July 2015

There are some landlords that swear by them. But are Jervis v Harris clauses as good as they might first appear?

Most modern leases contain an express right for a landlord to first serve notice specifying breaches of covenants relating to condition of the property; if the breaches are not remedied within a specified period (usually 2-3 months), the landlord can re-enter the property, carry out the works and then recharge the cost of those works to the tenant.

These kind of clauses (often referred to as Jervis v Harris clauses) are seen by some practitioners as a better alternative to waiting until the end of the lease and pursuing a terminal damages claim. That’s mainly because the so called ‘cap’ contained in section 18 of the Landlord and Tenant Act 1927 does not apply. In other words, the landlord’s future intentions are not taken into account and the only thing a landlord will need to prove is that it’s done the remedial works and incurred the cost. It’s a simple debt claim – at least that’s the theory.

So, as tenant, you have received the initial notice, what are the potential defences and what do you look for?

A Jervis v Harris clause is a contractual right so, in essence, if the clause is not in the lease then there will be no right for the landlord to invoke the procedure. That also means that the notice and dilapidations schedule will need to comply with the terms of the lease - they need to be served in accordance with the notice provisions in the lease.

  • Has the landlord properly identified the breaches (as opposed to the remedies – see more below) by reference to the lease covenants?
  • Are all of the items specified in the schedule below the standard contemplated by the covenants? In other words is there in fact disrepair? A building surveyor will be best placed to assist with that analysis.

If the landlord exaggerates the extent to which something is in disrepair or misinterpreted the repair covenant as requiring something more onerous and then it seeks to re-enter on the back of the notice then it will be unable to recover the cost. In fact the consequences of an invalid notice/schedule could be far more serious and could open the landlord to a claim for trespass and business interruption.

Perhaps counter intuitively if the landlord goes on to specify the remedial works it thinks is required it could open itself up to similar kinds of risks. There is often more than one way to remedy a repair breach so by specifying a particular remedy could mean the landlord is unable to re-enter in respect of that particular item or, if that item makes up a large part of the schedule, render the entire notice invalid.

If a landlord wants to specify the remedy he may be best advised to include that information in the covering letter to minimise the risk of invalidating the notice itself.

If the landlord has served a valid notice and schedule and is now threatening to re-enter - can you legally resist?

The simple answer is that it may be difficult to do so. The appropriate remedy for a landlord in those circumstances is an injunction to force entry and it may be relatively straight forward for the landlord to succeed.

However if, for instance, the defects are relatively minor yet the impact on the tenant’s business is significant then it may be possible to persuade a court not to allow the landlord to enter. Certainly a landlord is unlikely to get an injunction if there is a genuine dispute as to the validity of the procedure.

A few practical thoughts for tenants

Clearly there is no ‘one size fits all’ when advising tenants as to what they should do on receipt of a notice of this sort. However there are often common themes.

For instance, if there are valid and justifiable challenges to the notice and the schedule then these should be put to the landlord. A tenant may wish to think tactically about when to respond with the challenges because the landlord can probably re-serve the notice and correct any problems in a new notice. In other words, challenging technical problems might only delay the procedure rather than avoid it.
 
With a view to trying to avoid a dispute engaging with the landlord may well diffuse things. Often a preferable outcome is for the tenant to try and agree with the landlord that he will carry out the works pursuant to a binding programme. This can be a win-win outcome for both parties because the tenant will avoid the landlord’s contractors being on the premises as well as disruption to the business and the tenant can carry out the works when it wishes. The tenant may also be able to undertake the works far cheaper than the landlord would.

From a landlord’s perspective, the premises are repaired – at the tenant’s cost rather than the landlord’s - and it avoids the potentially significant risks and costs of having to obtain an injunction to force entry.

 

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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