Extraordinary repairs to the common parts

Under commercial leases, the responsibility for repairing the common parts is usually retained by the landlord. The lease will normally oblige the landlord to carry out the repairs to the common parts. The landlord will then be entitled to recover the cost of those repairs from the tenants via the service charge.

What happens when extraordinary repairs are required to the common parts? Normally under a lease, a tenant is only liable for extraordinary repairs to the premises (as opposed to the common parts) if liability has been transferred to it by words such as "irrespective of the cause of damage". Is the same true for a landlord and common parts?

Yes seems to be the answer on one reading of the Court's decision in AWG Business Centres Limited v Regus Caledonia Limited & Others. See our blog on that case here. In that case, the Judge felt it was significant that the landlord was obliged to repair the common parts irrespective of the cause of damage.

What then if that wording is missing?

It may be that the landlord is still liable for extraordinary repairs under the Common Law (the obligation on the landlord to carry out extraordinary repairs is implied into commercial leases by the Common Law), but because it is not obliged to carry out those repairs to the common parts under the lease, it cannot recharge those costs to its tenants.

However, there is case law from the early 1990s - House of Fraser Plc v Prudential Assurance Co Ltd - in which it was held by our Court of Appeal that even although words such as "irrespective of the cause of damage" were missing from the landlord's repairing obligations for the common parts, the natural reading of those obligations was that the landlord was to have the same responsibility for the carrying out of both ordinary and extraordinary repairs to the building.

That suggests that the sort of wording that the court said in CIS v Fife Council is required to impose liability for extraordinary repairs isn't necessary to make a tenant liable to pay the landlord for carrying out extraordinary repairs to the common parts.

The decision in AWG doesn't sit well with this view. With landlords continuing to find value in improving common parts, and with issues such as cladding replacement possibly coming upwe may well be given an answer to this.