Application Question

Geoffrey leased his seaside villa to Tamara for a term of 7 years at a monthly rent of $15,000
payable on the 1st day of each month, commencing January 1, 2018. In the lease, Geoffrey
covenanted to keep the structure of the villa in a state of repair. There was a tropical storm on
July 4, 2022 which caused minor damage to the roof of the Villa. On July 5, 2022 and
October 22, 2022 Tamara notified Vincent, Geoffrey’s agent for the management of the villa,
that the roof was in need of repair. However, nothing was done to repair the damage which
continued to worsen during the rainy season of that same year.
On December 5, 2022, Tamara was injured while bathing in the shower when a piece of the
ceiling broke off and bruised her shoulder. Tamara became frustrated and contacted her
friend Kevin, a building contractor, who effected the repairs to the roof and ceiling for the
sum of $30,000.
Geoffrey wrote to Tamara on February 6, 2023 demanding the payment of rent for the
months of January and February 2023 which was in arrears. Tamara replied on February 8,
2023 indicating that she owed him nothing because she had fixed Geoffrey’s problems. She
also stated that “he should not waste her time and they could call it even.”
On February 20, 2023 Nikki, a licensed bailiff, called Tamara while she was out enjoying the
Carnival festivities and told her that she left a document in Tamara’s mailbox which was self-
explanatory. Later that day Tamara retrieved a letter from her mailbox. The letter outlined
that Tamara’s barbecue pit and patio set located in the backyard of the villa could not be
removed, as they were seized, distrained upon and impounded and would be sold in 5 days if
Tamara does not settle the rent in arrears.
Advise Tamara.

I. Whether Geoffrey breached his repair covenant by failing to repair the roof
that has fallen into disrepair from the July 4 storm after being notified by
Tamara of the need for repair?
(i) Whether the notice to repair given by Tamara to Geoffrey’s agent,
Vincent, was substantial and effective?

Express Covenant by Landlord:

A landlord’s repair obligation must be expressly contained in the lease to be deemed

effective. To understand the extent of the repair, the wording of the express covenant to
repair must be considered. ‘To keep in repair’, per Luxmore v Robson means that the
bounded party is obligated to ensure that the premise is kept in good condition throughout the
term. This means that the premise must be kept in repair at all times. If it is not (falls into
disrepair), then that party has breached the covenant to repair.

Landlord liability to repair:

Following O’Brien v Robinson [1973] 1 All ER 583, a landlord’s liability to repair only
arises when he has been notified of the need for repair, or otherwise acquires knowledge of
such need. Therefore, where a landlord has covenanted to repair and, having been notified by
the tenant of the need for certain repairs, fails to carry them out, he has breached the covenant
to repair.

When a covenant to repair is breached, action can be taken immediately if there is no

provision requiring service of a notice. If there is a provision requiring service of notice of
the breach by the landlord to the tenant, then the notice must prescribe the repairs to be done
and the time in which it should be done (Baylis v Le Gros).

Advice:

Tamara is advised that the roof of the seaside villa falls within the substantial consideration
and definition of the structure of the villa. Therefore, following Luxmore, Geoffrey’s
covenant to keep the structure of the villa in a state of repair, which includes the roof, existed
for the duration of the term. Geoffrey was obligated to ensure that the premise was kept in
good condition at all times throughout the term, as such, when the roof fell into disrepair
following the passage of the storm on July 4, he ought to have fixed the damage upon being
notified of it. The unforeseeability or the unlikelihood of a natural disaster occurring does not
negate Geoffrey’s obligation to keep the roof in a state of repair.

On July 5 and October 22, 2022 Tamara notified Geoffrey through his agent Vincent, of the
want of repair of the roof. However, Geoffrey failed to dispense his covenanted obligation.
Following O’Brien, Geoffrey’s liability to repair arose when he has been notified of the need
for repair, or otherwise acquires knowledge of such need. Geoffrey’s failure to carry out the
repair on the roof after both notifications by Tamara of the need for the repair, is a breach of
the covenant to repair. The facts omit a provision requiring the mode and time frame of
service of notice of the breach, thus, Tamara is entitled to take immediate action per Baylis v
Le Gros.
Consequently, Tamara is advised that Geoffrey breached his covenant of repair when he
failed to repair the damaged roof after being notified of the need for it to be repaired.
Additionally, the notice to repair given by Tamara to Geoffrey’s agent, Vincent, was
substantial and effective.

II. Whether Geoffrey is responsible for the consequential damages, or the waste
caused by the unrepaired roof?
Whether Geoffrey is liable for the injuries Tamara sustained on December 5,
2022, from the broken ceiling caused by the unrepaired roof?

Waste

Knowledge of Repair:

O’Brien v Robinson [1973] 1 All ER 583: A landlord’s liability to repair only arises when he
has been notified of the need for repair, or otherwise acquires knowledge of such need. If the
state of things may cause serious damage, the landlord is under a higher duty to pay attention
to what is said to him. The question to be considered is whether he has been informed of
something which should put him on inquiry.

To keep in repair Structure and Exterior:

Quick v Taff Ely Borough Council

The claimant was the tenant of a house owned by the defendant council. As a result of very
severe condensation throughout the house decorations, woodwork, furnishings, bedding and
clothes rotted, and living conditions were appalling. The condensation was caused by lack of
insulation of window lintels, single-glazed metal-frame windows and inadequate heating. The
tenant brought proceedings against the defendant for breach of its covenant "to keep in repair
the structure and exterior" of the house.

Held (On appeal):

Liability under the covenant only arise when there existed a physical condition which called
for repair to the structure or exterior of the dwelling house.

Analysis/Conclusion:
By way of notifications made to Geoffrey’s agent; Vincent, knowledge is considered as given
to Geoffrey, therefore he was aware of the need for repair of the roof.

Fairwell had knowledge (because he was made aware) that the elevator frequently
malfunctions. Conclusively, an elevator shaft is considered as a part of the structure of a
building. Tom sustained injuries caused by the misleveled elevator, which is caused by
defective construction of the elevator shaft or a related structural issue; thus falling within
Farewell’s obligation to repair. Therefore, it can be concluded that there was a physical
condition which called for repair to the structure of the Building, thus establishing Fairwell’s
liability to Tom. Tom can bring a personal injury claim against Fairwell for damages caused
by the injuries he sustained.

I. Whether the self-help remedy was available to Tamara, and if so, did she
correctly apply it to her situation?
II. Whether Equitable Set Off was available to Tamara

Section 27 of the Rent Restriction Act: Tenant may effect necessary repairs if landlord
neglects to do so:

(1) Where a landlord fails to keep premises to which this Act applies in good and tenantable
repair being under an obligation to do so, and fails also to comply with the notice mentioned
in subsection (2), the tenant at his or her own expense may effect such repairs as are
reasonably necessary to fulfil that obligation and may deduct the cost thereof from any rent
due from him or her to the landlord.

(2) Before effecting any repairs pursuant to subsection (1) the tenant shall send, by registered
post to the landlord at his or her last known address, notice of the nature and estimated cost of
the repairs with a request that the repairs be effected by and at the expense of the landlord
within the period of the next thirty days.

Common law has called this the Self Help remedy for tenants:

Lee-Parker v Izzett:
Money expended by a tenant on discharging his landlord’s covenants will in appropriate
circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off
at law to a claim for unpaid rent. The tenant’s right to recoup himself out of future rents
arises when and so far as these circumstances are satisfied:

1. The LL is in breach of covenant to repair;

2. The LL has been duly notified of the breach and state of disrepair. Must give the LL
reasonable time to repair;
3. The expenditure on the repairs by the tenant is proper and reasonable. To be
reasonable the tenant should get various estimates. The LL does not do the repair, the
tenant chooses an estimate and keeps all the receipts from the money expended. Give
the LL copies, keep the original;
4. The amount expended by the tenant on repairs, which the LL has in breach neglected
to carry out, is a sum certain which has actually been paid by the tenant and its
quantum has either been acknowledged or cannot be disputed by the LL. The tenant
recoups it from future rent.

III. Whether the common law remedy of distress was available to Geoffrey given
that Tamara’s self-help remedy was satisfactory?