By Naomi Raymond, Legal Adviser
A leaseholder faced with the situation where their landlord is failing to repair the common parts is not limited to taking the landlord to court.
A landlord’s obligations with regards to repair and the provision of services to the building will be governed by the lease. To this end, a leaseholder who is complaining of a failure on the landlord’s part to repair should establish whether the landlord has breached a lease obligation. Reviewing the lease should be the first port of call; this will help identify the obligations imposed on the landlord.
A common law right known as ‘self-help’ could be available to a leaseholder when exercised in the correct manner. Self-help arises where a landlord is in default of its repair obligation, allowing the leaseholder to take matters into their own hands.
A leading case on the right of self-help is Loria v Hammer  2 EGLR 249. The leaseholder in this case was required to establish that the repairs – which she had commissioned and paid for – fell within the landlord’s repairing obligation and that the landlord was in default of its legal obligation.
The leaseholder’s claim was upheld and she was entitled to reimbursement of her expenses as well as the consequential loss for her temporary accommodation.
When the right to self-help arises, it provides leaseholders with an ‘implied licence’ to carry out the work. Before exercising self-help a leaseholder should be sure to write to their landlord and:
- highlight the clause in the lease that has been broken;
- specify what is required to address the disrepair;
- specify a reasonable period of time for it to be addressed; and
- state that if, at the end of that period, the disrepair has not been remedied they will select the cheapest of 3 quotes they are copying to their landlord, and carry out the work themself.
The leaseholder should also ensure the work is carried out properly and expenditure is appropriate and not extravagant.
It is then that the common law right arises to recover the monies expended beyond what would have been the leaseholder’s apportioned share.
If no monies are forthcoming from the landlord, the leaseholder may be entitled to ‘set-off’ the costs of the repair from their ground rent; although for leaseholders paying a nominal rent this might not amount to much of a set-off.
It is worth the leaseholder checking whether their lease reserves service charges as a rent and more importantly, whether the lease prevents any type of set-off.
Finally, as a note to landlords hoping to avoid a self-help scenario arising; ensure the building is being maintained and repaired in accordance with the lease and that service charges are being properly recovered. If service charge contributions are not forthcoming refer to the lease to establish your rights in terms of legal action.