The dangers of this, from T’s point of view, can be seen by a recent case involving basement retail premises. Damp problems arose because the damp proof in the floor had not been properly linked to the damp proof in the walls, and so damp seeped into the join between the two. Was L liable? The answer was ‘no’, because the damp proof arrangements were in the same condition as they had been at the time the lease was granted. To fix that problem would require an improvement to the premises, and L was not obliged to improve the premises and nor was he obliged to repair inherent defects. In simple terms, there had to be some ‘disrepair’ before L could be liable. Having said that, if the water penetration had become so extensive that it affected the structure, then there might have been a liability on L; but there remained no liability until that stage.

What can T do to protect against this situation? The answers are (i) get L to be liable for inherent defects, or (ii) insure, or (iii) get collateral warranties from any builders who have carried out works for L to the premises. Janet Reger v Tiree [2006]; Property Week, 4 August 2006. © Practical Lawyer