Role reversal: Landlord opts for patch repair while tenant pushes for replacement

Summary

  • In the case of De Havilland Studios Ltd v Peries and another [2017] UKUT 322 (LC) the Upper Tribunal (UT) found that choosing to repair or replace defective windows in a residential block of flats were both reasonable options for a Landlord to take, and that it was up to the Landlord to decide the chosen course of action.
  • Repair was reasonable even though the current windows were nearing the end of their natural life and did not adhere to the windows building regulations requirements.
  • It was equally found that replacement would still be reasonable even if it was a more expensive option than repair.

Facts

This case concerned one residential flat out of a total of 41 flats in a large former factory (the Property). The cost of repairs for all windows came to £100,242 with the defendant tenant’s apportionment being £2,600.

Unusually, the Tenant argued that the defective windows ought to be replaced whereas the Landlord argued that repair of the windows would be sufficient. It is more usual to see a tenant pursuing the less costly remedy in this situation.

The cost of replacement was approximately 4 times greater than the cost of repair, and the expert’s report on behalf of the Tenant recommended replacement of the communal windows in the Property and repair of the windows in the flats.

What the law states

The UT followed the approach taken by the Judge in Waaler v Hounslow LBC [2017] ECWA Civ 45 (Waaler) which stated that ‘the tribunal should not simply impose its own decision’ where there is more than one reasonable course of action.

The Landlord was therefore entitled to opt for repair of the flat windows in place of replacement. One option was not more reasonable than the other.

Points to note

  • The expert evidence from both parties did not state either option were unreasonable.
  • Repair would substantially improve the condition although it would only extend the life of the windows by 15 years.
  • The cost implications of both courses of action were taken into account.
  • It is not for the Tribunal to decide what the more reasonable option is and cannot impose its own view on the Landlord.

For further information, please contact the Real Estate Disputes Team at Hamlins.