The starting point is to say that if there is a defect in the demised premises, then it will be T’s liability under the repairing obligation. However, this assumes that the property has in some way deteriorated from its original condition. If the building has always had the defect, then T will not be liable; on the other hand, if the defect has arisen since construction (ie the building has deteriorated) then T will be liable. For instance, T will not be liable to prevent flooding in a basement area, if that flooding is due to the defective construction of the foundations (the point being that the building was in the same condition when T took possession as it had been when originally constructed). As a note in The In-House Lawyer puts it, ‘if the inherent defect falls within your demise, you face an uphill struggle to avoid liability, unless you are fortunate enough to be able to establish the state of the property has not deteriorated’.

There is, of course, a converse to this. If there has been no deterioration then there is no liability to repair. That is fine when the defect is within T’s part of the premises, but what happens when the defect is within L’s part of the premises (eg typically the structure)? If there has been no deterioration in the condition of the building then there may well be no obligation to repair (since there is no disrepair). Thus, whilst L may be liable to carry out repairs, the particular defect complained of (eg flooding in the basement) may not count as disrepair because the condition of the building has not deteriorated since its original construction. In that situation, T would not be able to force L to carry out any repair works. The only advice that can be given to T is to carry out a full survey of the property prior to taking on the lease. If the lease is to be a part of the premises, then the survey should extend to all other parts of the property that might affect the demised premises (eg the structure), and T’s advisers should look closely at the scope of L’s repairing obligations (ie would it cover the situation when there has been no deterioration?) See note by Cobbetts in [2008] The In-House Lawyer March p101. © Practical Lawyer