Repairs required because of RAAC will in many cases be to the common parts of a building.

Although the responsibility for repairing and maintaining premises is usually passed to the tenant under a commercial lease, the obligation to repair and maintain the common parts is normally retained by the landlord. The landlord usually recovers the cost of repair through the service charge.

Does this mean the landlord can recover the cost of repairing RAAC from its tenants through the service charge? It depends on the terms of the lease.

It is likely that the works required to fix RAAC will be extraordinary repairs.

For a landlord to be liable under the lease for extraordinary repairs, it is arguable that the repairing obligation must oblige the landlord to repair the common parts irrespective of the cause of damage (or words to that effect). That should (although it will depend on the service charge provisions) in turn allow the landlord to recover the costs of the extraordinary repairs from its tenants (See AWG Business Centres Limited v Regus Caledonia Limited & Others).

If the landlord is not liable for extraordinary repairs to the common parts under the lease, for example because the words irrespective of the cause of damage are not included in the repairing obligation, it may nonetheless still be responsible for them under the common law.

However, for the landlord to be able to recover the cost of extraordinary repairs from its tenants through the service charge, it usually must be a service for which the landlord is responsible under the lease.

If the landlord is not responsible for extraordinary repairs under the lease it can't recover the cost via the service charge. But it may nonetheless have to carry out the works because of its liability for extraordinary repairs under the common law.

There are, however, cases that suggest a different approach should be taken to the construction of the common parts repairing obligation so that it is wider than the obligation imposed on the tenant and should include extraordinary repairs. There are also arguments about how far the obligation for extraordinary repairs extends – does it really apply to common parts or only to let premises?

We might find that we get answers to these questions sooner rather than later.