By Charlie the Roofer for Roofline · Published · Checked against the sources listed below
The lease decides who pays, and GOV.UK says anything the lease does not mention will usually fall on the tenant. On a full repairing lease of a whole building the tenant normally repairs the roof. In a multi-let building the landlord usually repairs it and recovers the cost through the service charge.
How do you tell from the lease who repairs the roof?
Read three parts of the lease together: the description of what is let to you, the repairing clause and the service charge schedule. GOV.UK says the lease should set out who is responsible for repairs, and that any responsibility it does not mention will usually be yours as the tenant.
A whole building on a full repairing lease
The RICS Code for Leasing Business Premises, in force since 1 September 2020, notes that leases of whole buildings have traditionally made the tenant responsible for repairing the entire building. These are often called full repairing and insuring, or FRI, leases. The RICS Code also uses the FRI label for a lease of part of a building where the tenant pays towards the structure through a service charge, so the actual clauses matter more than the label.
A unit in a multi-let building
With an internal repairing lease, the tenant usually repairs only the inside of its own unit and the landlord keeps the roof and structure. RICS explains that tenants of part of a building normally contribute to those communal repairs through a service charge, and that the bill can be large when major items need replacing. Some tenants negotiate a cap, so check that schedule before a big roof repair comes up.
Leases do not always name gutters and downpipes. Look for them in the definitions and the repairing clause rather than assuming, particularly the valley and box gutters on a large unit.
Does a repairing clause cover a whole new roof?
It can. A covenant to repair is not limited to patching, and in Elite Investments v TI Bainbridge Silencers (1986) the court concluded that replacing the roof was within the covenant to repair.
The test is one of fact and degree. In Ravenseft v Davstone (1980) the court asked whether the work would give the landlord back a wholly different thing from what was let. Work that falls short of that is still repair, even where it also cures a fault in the original design.
There are limits. In Post Office v Aquarius (1986) a defect present since construction that had caused no damage did not have to be put right under a repairing covenant. For newly built premises, the RICS Code says a tenant taking on repairs should be given suitable protection against inherent construction defects for an appropriate period.
Watch the wording at the start, too. RICS warns that a plain obligation to repair can include putting right disrepair that already exists when you sign, so a tenant can end up paying for a roof that leaked before it moved in.
How can a tenant limit what it pays for the roof?
Agree a schedule of condition before you sign. The RICS Code says that where a tenant's repairs are limited to the condition at the start, a schedule of condition will normally be needed, and the parties should agree who pays for it. It can be a written record, a photographic one, or a mix of the two, and RICS recommends preparing it in time for both sides to check and agree it.
A roof needs this record more than most parts of a building, because little of it can be seen from inside. Dated photographs taken across the whole roof, with a note against each defect, give both sides a fixed starting point. Roofline offers a free commercial roof inspection and sends photos of what it finds, which you can pass to your surveyor or solicitor.
What happens to the roof when the lease ends?
The landlord can claim for roof repairs you were liable for but did not carry out. GOV.UK calls these dilapidations and says they should be written in the lease.
The Dilapidations Protocol, which sets out how these claims should run in court, says the landlord should generally send its schedule of dilapidations within 56 days after the lease ends. The tenant should usually reply within 56 days after the landlord sends its quantified demand.
Two rules protect tenants. Section 18 of the Landlord and Tenant Act 1927 caps damages at the amount the disrepair reduces the value of the landlord's interest, and allows nothing where the building is to be pulled down or structurally altered soon after the lease ends. Where a schedule of condition applies, RICS notes the tenant need not hand the property back in any better condition than when it was let.
Whichever side you are on, do not leave a leak while you argue about who pays. RICS points out that a defect neither party is liable for may simply be left, and suggests tenants ask the landlord to repair a leaking roof within an agreed timescale. To find out what is wrong first, send Roofline a photo on WhatsApp or book a free inspection on 07413 797731.
Send us a photo on WhatsApp and we will tell you what we think it is and whether it needs a visit. Quotes are free and itemised.
Sources
- GOV.UK, Renting business property: tenant responsibilities (Repairs)
- RICS, Code for leasing business premises, England and Wales, 1st edition (professional standard, effective 1 September 2020)
- Ministry of Justice, Pre-Action Protocol for Claims for Damages in relation to the Physical State of Commercial Property at Termination of a Tenancy (the Dilapidations Protocol)
- legislation.gov.uk, Landlord and Tenant Act 1927, section 18
- isurv, Elite Investments Ltd v TI Bainbridge Silencers Ltd [1986] 280 EG 1001 (case record)
- Nearly Legal, Between repairs and structural defects (April 2021)
General information about roofing in England, checked against the sources above when published. It is not a substitute for advice about your own roof.
