Repairing covenants: the extent of the obligation — what’s in a name?

The wording of a repairing covenant can often give rise to confusion and misconceptions about the extent of a tenant’s obligations. Although it is only one element that is taken into account when assessing liability, it is a key one, and it is important to understand that certain words will trigger greater obligations than others.

As a starting point, unless there is clear wording to the contrary — such as a schedule of condition — a tenant’s liability for repairs will be assessed by reference to a hypothetical scenario. In this scenario, taking into account the age, character and location of the property, the court will consider what works would make it reasonably fit for occupation by a reasonably minded tenant of the class who would be likely to take it.

A general covenant to repair will not require the tenant to put the property into absolutely perfect repair or pristine condition, but will generally be satisfied if the property is substantially in repair. It is an objective test, with a number of factors to be considered and assessed. One of these factors is the wording of the repairing covenants, and the extent to which they extend or diminish the level of obligation…

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