If a leaseholder reports a repair, for example a problem with the roof, then the landlord will need to consider if it is responsible for the repair works to the building or internal repairs to the leaseholder’s property and how it will be paid for.
This will be dependent on the terms of the lease. The lease will typically require the landlord to keep the common parts, structure and exterior in repair. If a freeholder is in breach of the repair obligations set out in the lease and as a result the leaseholder has suffered loss, then the leaseholder is entitled to compensation in the form of damages, as well as the leaseholder having to carry out the repair.
Unlike disrepair claims in respect of an assured or secure tenancy, which only allow the tenants to make claims as far back as 6 years from when their claim is issued at court, a leaseholder can claim as far back as 12 years. This is because the lease is made by deed and as such has a longer limitation period.
When deciding how much compensation a leaseholder will be awarded where a landlord has failed to carry out their repair obligations under the lease, the court will attempt to place the leaseholder in the position he would have been in if the landlord carried out the repairing covenants properly.
Unfortunately, the assessment of general damages in a disrepair case is far from an exact science. General damages (namely compensation for loss of enjoyment and use of the property) are notoriously difficult to quantify but each case will turn on its own specific facts and the surrounding circumstances. The variation of any one of a number of factors can have a dramatic effect on the quantum awarded.
In leasehold cases, the amount of compensation will be based on the notional open market rent obtainable for a private tenancy of the property although working out the notional market rent can itself lead to disputes between the parties. In addition to that figure, there may well be 10% uplift in the compensation following the Court of Appeal decision of Simmons v Castle EWCA Civ 1288.
Therefore, where a landlord has not carried out its repair obligations under a lease, that landlord could be liable to pay the leaseholder compensation for loss of comfort and convenience, which can be determined by a notional reduction in rent. A 10% uplift may also need to be applied to the compensation awarded. In addition to this, the leaseholder may also be entitled to special damages including the second-hand replacement value of damaged items.
It is important to note that if a leaseholder has raised concerns about repairs being outstanding, the first things for the landlord to consider are the repair obligations under the lease and whether the landlord is responsible for the repair at issue.
For more information, please contact Neil Lawlor, Partner on 020 7880 4273.
