The Leasehold Property (Repairs) Act 1938 was passed to prevent tenants being harassed by landlords seeking possession of their premises because of unimportant breaches of their repairing obligations.
To pursue possession proceedings on the grounds of disrepair where a lease for more than seven years has been entered into, and there are more than three years remaining, a landlord, if so required by the tenant, has first to obtain the permission of the court and can only generally do so by establishing that repairs are required urgently to prevent substantial damage being caused to its interest in the premises.
In Landmaster Properties v Thackeray Property Services (4 April 2003), the tenant held a lease with 65 years still to run of a public house in St Olave's Precinct in Bury St Edmunds.
The public house had closed in 1998 and had been neglected ever since, despite the landlord and the local authority's efforts to compel the tenant to, at least, make the premises secure.
Finally, in early 2001, the landlord started proceedings seeking permission to repossess but, prior to the hearing, the premises were destroyed by fire.
The tenant argued that the relevant date for establishing whether any failure to repair was seriously damaging was the date of the hearing, not when proceedings were commenced.
As the premises were completely destroyed but insured against fire, there was no current damage at all.
The court agreed. It decided that the date on which the landlord has to prove it is entitled to permission to seek possession is the date of the hearing. This does make sense as, in many cases, a tenant will have put premises into repair by then.
However, the tenant's rather ingenious argument ultimately failed to get it off the hook. Under the Act, the court can give permission for repossession if there are special circumstances and, given the warnings about fire risk that the tenant had ignored, the court decided that the landlord could proceed.
This case illustrates that technical arguments can succeed but, in the end, the court will strive to ensure justice is done.
Jonathan Ross is head of property litigation at Forsters.