Consultation Paper on the General Law of the Landlord and Tenant

6.17 Notwithstanding the preliminary conclusion stated in theprevious paragraph, the Commission considers that there are furtherissues which require consideration in this context. One is that muchuncertainty exists over the concept of “repairs” and other works, suchas “improvements”, which do not come within the concept. Thisissue can arise in several contexts. One is where there is a disputebetween the parties as to whether particular works called for in, forexample, a repairs or dilapidations notice fall within the obligation torepair contained in the lease. Another example is where a rent reviewclause contains a disregard for tenant’s “improvements”. Suchdisputes involve usually what is essentially a matter of the correctinterpretation of the particular provision or covenant in the particularlease. It has been suggested to the Commission that practitionerswould find it helpful if some statutory definition or guidelines as towhat constitutes repairs, as opposed to improvements, were provided.At this stage the Commission has reached no conclusion on the matterand wishes merely to moot the point. There is always the danger thatan attempt to produce a statutory definition or guidelines, howeverwell-intentioned, will actually do more harm than good, by simplyshifting the issue of uncertainty from interpretation of covenants inleases to interpretation of the statutory provisions or, even worse,increasing the uncertainty by requiring the interpretation of both inmany cases in the future. The Commission will give furtherconsideration to this issue in the light of response to this <strong>Consultation</strong><strong>Paper</strong>.6.18 Another issue arises from the fact that often repairingresponsibilities are divided between the parties but the allocation isnot exhaustive. A similar “gap” may also arise where the leasepurports to put repairing obligations on just one of the parties, butagain the allocation is not exhaustive. It is clearly undesirable thatthere should be any doubt as to where responsibility lies for repairwork and it would be appropriate for legislation to fill any gap whichmight exist in a particular case. Given that the landlord is the ownerof the demised premises, to whom they will return on determinationof the tenancy, it would also seem appropriate that any residualresponsibility should lie with the landlord. The Commissionprovisionally recommends that where the lease or terms of a tenancyfail to deal with repairing obligations exhaustively, or not at all, anyresidual responsibility should lie with the landlord.104