The repairing covenants in leases are among the most important covenants for a tenant to consider before committing to the signature of a lease. Eugene Cush, Consultant Solicitor at Keating Connolly Sellors, outlines that great care should be exercised to ensure that the tenant fully understands his/her obligations.

It is standard in long-term leases that the tenant is liable for full repairs to the demised property. Clearly, it is imperative that the tenant asks his/her architect to carry out an inspection of the property before signing the lease. S/he should also seek to exclude liability for any repairs required as a result of any inherent structural defects in the property.

Some leases attempt to provide that the tenant is not only responsible for keeping the property in repair, but also for putting the property in repair. This could mean that the tenant would have an obligation to put the premises in a better state of repair than they were at the commencement of the lease. Any such clause should be resisted and to avoid any uncertainty the lease should contain a specific acknowledgement that the tenant is not obliged to put the property in a better state of repair than at the commencement of the lease.

In short-term lettings the tenant’s solicitor will argue that the tenant’s liability should be limited to internal repairs on the grounds that it is unreasonable for a tenant, who has only had a brief occupancy of the premises, to run the risk of any greater liability. However, you may find that in a number of short-term letting agreements, while the tenant is liable only for internal repairs, the letting agreement is silent as to exterior repairs. At first glance, the tenant might consider that the landlord has the obligation to deal with external repairs if he, the tenant, has responsibility for only internal repairs but this is not the case. In Kiernan v O’Connell concerning the tenant’s liability for external repairs it was decided that unless an express covenant to the contrary was included the tenant is bound to keep the property in good repair and this extended to external repairs. While there is an exception where the landlord rents furnished accommodation, this does not apply to commercial lettings. It is imperative, therefore, that the tenant ensures that the letting agreement contains a specific obligation on the landlord to be responsible for exterior repairs. If it does not, the landlord cannot be forced to carry out such repairs. Failing agreement on this the tenant should, as a minimum, seek a right to terminate the lease if the premises become unfit for use for more than a certain time.

Commercial leases are all very well until something goes wrong. When that occurs confusion and misunderstanding can arise. It is imperative that both parties obtain expert legal advice before committing themselves to signing a lease of commercial property.

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Eugene Cush

Eugene Cush, a Consultant Solicitor at Keating Connolly Sellors, is a renowned expert in property law.  He advises on large commercial and industrial development projects.  He has represented developers in all aspects of projects including land acquisition, planning, leasing and disposal.  For further information, contact Eugene Cush at [email protected] or 061 432 302.

The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. We advise people to always seek specific expert advice for their individual circumstances.