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Retail repairs revisited

Retail repairs revisited

By Russell Cocks

Landlord & Tenant 

Section 52 of the Retail Leases Act 2003 makes the landlord of retail premises responsible for maintaining the structure, fittings, plant and equipment and appliances. But for how long? Traditionally leases were drawn by the landlord’s lawyer and offered to a prospective tenant on a take it or leave it basis. All the power lay with the landlord. However, such a disproportionate relationship is anathema to consumer protection, and retail tenants, like their residential cousins before them, have become the beneficiaries of protection designed to create a more balanced relationship between landlord and tenant. Section 52 implies into every retail lease a maintenance obligation on the landlord. This may be contrasted with the traditional approach of foisting repair obligations (excluding the euphemistic “structural” repairs) on to tenants. In a retail environment the obligation to maintain (and therefore repair) primarily falls on the landlord, although leases continue to try to pass “residual” repair obligations on to the tenant. A number of cases have considered the length of time of the maintenance obligation. From the beginning of the lease the landlord must maintain the premises. For a relatively short term lease, such as two years, it might be expected that the premises might not deteriorate substantially and this maintenance obligation might not be too burdensome. However, for a long term lease, such as 10 years, it might be expected that substantial maintenance may be required. Indeed, a tenant may take advantage of a number of options to extend the lease to a period of 15 or 20 years. The landlord could expect that the level of maintenance required in such circumstances will involve a substantial cost that needs to be taken into account when negotiating rental.

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