1.  Terms of the Lease

Investigate your options and specifically what the lease permits you to do in the event the tenant's self-help remedies are exhausted or T isn't complying. Check the repairing covenants, forfeiture provisions, service charge provisions, as well as any schedule of condition, etc.

Consider also your right to pursue any guarantors, especially important in a case of T impecuniosity, if you're intending to perform the works at your cost.

2.  Serve a Repair Notice

A repair notice (or for those in the know with all the lingo, a 'Jervis v Harris notice') can be served upon a tenant, requiring T to undertake works within, generally, two months. Failing which you may perform the works, the cost of which will be due from T as a debt. Thereby negating arguments/challenges around reasonableness of the costs because the sum is due as a debt (not damages, as in the case of terminal dilapidations). To do so, the lease must expressly contain a repair notice provision.

3.  Serve notice to terminate the lease

A breach of repairing covenants by T, is likely to give rise to the right to serve a forfeiture notice (again, for those in the know, 'a section 146 notice', in accordance with section 146 Law of Property Act 1925). This puts T on notice of the disrepair, giving T a reasonable period to undertake works, failing which you may terminate the lease. If the works are performed by T in accordance with the lease, the right to terminate will fall away.

4.  Consider your ability to recover costs

Modern commercial leases generally provide for a right for L to recover the costs of serving any repair notice or section 146 notice, as well as a schedule of dilapidations. Check also for any indemnity clauses you can rely upon for claims or actions against T regarding works.

5.  Put all necessary agreements in place for any T works

If T does carry out the works or wants to use the opportunity to do other things to the property, that should be properly recorded and all necessary consents, such as planning/building, superior landlord, etc. and licences for works/alterations, be obtained/put in place.

If you are a commercial landlord or tenant dealing with dilapidations, or you require advice about these issues and how they may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.


Lucie Barnes


Leonie Hall

Legal Director