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What are the tenant's repairing obligations where there is no formal lease in place?

Published: 30th September 2009

At common law, there is:

  • no implied covenant by the landlord about the physical condition of the property.
  • no implied obligation by the landlord to carry out repairs.
  • no implied obligation by the tenant to carry out repairs.

If a court had to rule on the implied repairing / dilapidations obligations of the parties in the event that there is no written lease, it would usually consider:

  • who has actually paid for or carried out repairs in the past?
  • who deals with insurance and who pays for insurance? Liability for repairs and insurance should always be considered together. If, for example, the landlord insures, one would probably expect the landlord to claim for damage caused to the property under the insurance policy.
  • What were the circumstances that led to the creation of the tenancy? For example, a monthly periodic tenancy may have arisen on the expiry of an earlier lease, which contained express provisions for repairs.

Even though there may be no implied obligation on a tenant to repair premises or pay for repairs, there are common law obligations not to "commit waste". The law in this area is not entirely clear, but a tenant is generally required to use the property in a "tenant-like" manner (Marsden v Edward Heyes Ltd [1927]). This means that the tenant must, for example:

  • turn off the water and empty boilers, if appropriate, when leaving the property vacant in the winter to avoid water damage from bursting pipes following a freeze.
  • unblock drains.
  • clean chimneys and windows.

A tenant might also be expected not to bring into the property highly inflammable or explosive substances to avoid causing damage.

The tenant would not, however, be required to repair the property if it falls into disrepair through fair wear and tear, through lapse of time or by a reason not caused by the tenant.

There are also a number of statutory obligations on both landlords and tenants, which relate to repair. e.g. Asbestos Regulations, Fire Safety Order, Defective Premises Act etc.