Different considerations apply in relation to service charge provisions in long residential leases. For instance, in a recent Lands Tribunal case long lessees were in dispute with L over the replacement of a retaining wall that had been inadequately built in 1961. The tenants argued that the inherent defects did not come within the scope of their repairing (service charge) obligations, and also that they amounted to improvements. Both arguments failed. Subject to the wording of the specific lease, the position will normally be that:

• the mere fact that works relate to inherent defects will not absolve Ts from having to contribute to the cost of repair;
• if an inherent defect has not yet caused any physical damage then the repairing covenant will not yet apply;
• if the inherent defect has caused damage, then the question is whether or not it is practical to remedy that damage without also remedying the inherent defect. If so, then L only has to do the work required to remedy the damage (and he will recover that from the Ts). But, if it is necessary to eradicate the inherent defect then it will be a matter of ‘fact and degree’ (and construction of the lease) to see whether the works are so substantial that they do not fall within the repair obligations.

In practical terms, the courts lean towards making Ts liable to contribute towards the cost of fixing inherent defects. Arguments as to whether or not such works come within the strict definition of ‘repair’ will not be sympathetically received when dealing with residential long leases. See article on Dulwich Estate v Kaye (2006) [Lands Tribunal LRX 137 2005] in [2006] 177 Property Law Journal 13. © Practical Lawyer