These are potent clauses in leases for commercial properties, which most people don’t fully realise. And although designed to sting and hurt a tenant, a landlord can still catch a cold with them as well.
Of course, there is usually a repairing clause in such leases where the tenant has to keep the property in good condition. And if they don’t, then there can be talk of say a landlord serving a Schedule of Dilapidations on the tenant to force these or receive monies for not doing them.
But then another type of clause emerged in the nineties after the court case of Jervis v Harris in 1996, hence the phrase ‘Jervis v Harris’ clause.
The Basic Procedure
Such clauses allow the landlord to do four things:
1. Enter the Property to Inspect its Condition
This isn’t so drastic as there are other reasons why a landlord may want to inspect a property anyway, but wherever it is stated, this needs to be arranged in the right way and time frame.
2. Serve a Notice Afterwards on the Tenant Saying What items of Disrepair They Need to Address Within a Set Time-Frame
The lease will of course say what is included or not, with ancillary things like redecorations often being missed as covered under relief from Section 147 of the Law Property Act 1925, and failure to re-instate alterations as well.
Plus, it’s often worth just saying what’s wrong, rather than specific items of repairs being then needed, as the landlord can then be on the hook to do these exact things later on.
3. Enter the Premises a Second Time if the Works Have Not Been Done by the Tenant, and Carry Them Out Themselves
This is where things get interesting, and any landlord having the courage to do this will need to ensure that it is done correctly, and so defend any counter-claim from the tenant of breaching their quiet enjoyment of the property, trespassing, or even derogation from grant if you want to get very technical.
4. Then Recharge the Cost of the Works Back to the Tenant.
And the key here is that it is a debt in black-and-white in the lease, not just damages through legal action – a lot easier to secure.
However, there is a risk with the landlord having issues in actually managing to claim these costs in – the tenant may say they were not carried out correctly, or beyond their repairing liability, or just plainly a poor job and inflated cost.
Bypassing Usual Legislation
So, in short, the landlord gives a one-time opportunity for the tenant to sort the repairs out before having the ability to actually go into the property and carry out themselves and then recharge this back to the tenant.
No pussy-footing around with schedules and requests, and nicely avoiding the two big pieces of legislation governing how a landlord usually treats these repair issues with the tenant.
So, with the Leasehold Property (Repairs) Act 1938 for leases over seven years with at least three years left, a tenant can serve notice seeking this benefit and involving the court and therefore the landlord needing to defend on 5 ‘portal’ grounds and basically focusing on anything really urgent, necessary or equitable.
Then there’s the Landlord & Tenant Act 1927 which limits what a landlord can claim on the grounds of diminution in value or redevelopment making repairs useless and superseded.
Using the Clause’s Power
Therefore, if you have one of these ‘Jervis v Harris’ enter-and-repair clauses in a lease, then there’s more at stake then what you right at first thing – and similarly, making sure they’re in or out of any new lease being agreed.
They’re good news for a landlord in that they can practically have teeth to get repairs done bay tenant at their cost, however, there are risks with this being successfully pulled off by a landlord.
In reality it’s probably got more clout as a threat than being implemented. Simply having that as an option and on the back of this agreeing sensible repairs by the tenant is probably the best win-win solution for everyone in the long run.
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