Repairs Notice 'Jervis v Harris' - Self help for Landlords

A ‘Repairs Notice’ is an under utilised tool available to a landlord during the lease term if the tenant is in breach of their repair obligations.

Many landlords who are receiving their rent will often overlook the ‘repair’ of the premises and may look to deal with matters within a dilapidations claim at expiry of the lease.

The risks of this are that the outgoing tenant may not have the money to deal with the dilapidations at lease expiry or they may even go out of business leaving the landlord with a vacant property in a poor condition. In addition, a poorly maintained asset is likely to have an impact on the capital value of the premises should the landlord wish to sell the asset.

Many leases have what is known as a ‘Jervis v Harris’ clause within them which allows the landlord to serve a ‘Repairs Notice’ during the lease term requiring the tenant to undertake the necessary works within a certain period of time (This is normally stated within the lease as to how long).

If the works are not completed by the tenant within the specified timeframe then the landlord is able to enter the premises, undertake the works and recover the costs as a debt from the tenant.

A ‘Jervis v Harris’ clause is not subject to the Leasehold Property Repairs Act 1938, nor does Section 18(1) apply which is often used by tenants to cap a landlords damages claim.

The advantages of a Jervis v Harris Clause are therefore:

• Avoids a need to forfeit the lease

• No requirement for a s.146 Notice

• The Landlord can control the works or the tenant will undertake the works of repair

• The work get completed prior to the end of the term, therefore protecting the landlord and avoiding a large dilapidations claim at lease expiry

• Ensures that the asset is maintained

The disadvantages of a Jervis v Harris Clause:

• The landlord may have to spend the money first, prior to recovery

• There could be dispute about the extent of the works

• There could be a risk of trespass if conditions of entry are not complied with

It is imperative that there is close liaison between the landlord, solicitor and surveyor prior to any notice being served on a tenant to ensure that the notice is valid.

In addition, the repairs notice shouldn’t just be a schedule of dilapidations. The repairs notice should detail the breach of covenant but it is up to the tenant how they wish to remedy the breach. It should not include any items of reinstatement or improvement and should be realistic taking into account the tenants occupation of the premises.

In summary, a ‘Notice to Repair’ is useful for a landlord to put pressure on a tenant to undertake works of repair during the term, however, the landlord needs to be well advised and aware of any associated risks in taking this approach.