Dilapidations: Repair of Rooflights and Meaning of Windows - Twinmar Holdings Ltd v Klarius UK Ltd [2013] EWHC 944 (TCC)

Dilapidations: Repair of Rooflights and Meaning of Windows

Summary

This terminal dilapidations claim provides some useful guidance regarding rooflights and windows.

The Court found that rooflights which had lost translucency were not in good and substantial repair and condition as required by a lease. The Court also considered whether the rooflights were actually windows, and provided some guidelines on identifying windows.

The facts

The claim was a terminal dilapidations claim brought by the landlord against the former tenant of warehouse and office premises in Hemel Hempstead. The lease was granted to the tenant at the time the building was constructed in 1993, and terminated in 2008. There were two key covenants on the part of the tenant:

…"to keep the whole of the premises… in good and substantial repair and condition"
and
…"to replace and renew and to keep clean all windows in the premises".

Several items in the dilapidations schedule were disputed, but the most significant was the landlord's claim for the cost of repairs to the rooflights in the warehouse.

The landlord's position was that the surface of the rooflights had become so degraded that they were opaque and needed to be re-coated with a glaze and restored. Thus they were out of repair. Alternatively, the landlord argued that the rooflights were windows and that the tenant was therefore obliged to keep them clean and renew them as necessary, pursuant to the covenant above.

The tenant argued that, as the rooflights were not leaking and moss and lichen had not taken hold, they were not in disrepair.

The issues

On the point of the rooflights, the Court was asked to consider two issues:

  1. Whether the rooflights were in "good and substantial repair and condition" at the expiry of the lease; and
  2. Whether the rooflights were also "windows" within the meaning of the lease.

The decision

  1. The rooflights were not in good and substantial repair and condition. Therefore, the landlord was entitled to recover the cost of repairing them, together with the cost of certain associated safety measures. The Court held that the rooflights needed to be in the same condition at the end of the lease as they had been at the commencement of the lease, so far as this could be achieved by maintenance and repair. Even if the rooflights were not leaking, they still had to let in the same amount of light and be structurally sound and weatherproof. The rooflights had ceased to be in good and substantial repair and condition once there had been a visible and significant reduction in their translucence.
  2. Although it was not strictly necessary for the case in light of the decision on point (i) above, the Court went on to consider the landlord's alternative argument that the rooflights were windows and therefore caught by the covenant to replace and renew the windows. The Court found that the essential characteristics of a window meant that it was a glazed panel in a frame set into the external envelope of a building. Its purpose was to let light in and usually to allow persons to see out. A window did not have to be in a vertical plane and so "Velux" type apertures could be windows. It is not necessary for an aperture to open for it to be a window. However, if windows were made of some other transparent material aside from glass, then it was essential that the material behaved like glass in the transmission of light. In view of the above, the Court held that the rooflights in this case were not windows as they were not glazed and had no frame.

Our advice for landlords

This case does not give us any new law. However, the Court clarified the approach to assessing the appropriate standard of repair, and it is a useful illustration of how the Court approaches this question and the extent to which an item is out of repair. It is also helpful on the specific point of rooflights and windows.

It is therefore essential to seek early advice from a surveyor and a solicitor on the extent of the repairing obligations and the condition of the property.

Our advice for tenants

The starting point when you are faced with a dilapidations claim will be whether you have maintained the premises in such repair as, having regard for the age, character and locality, would make them reasonably fit for occupation by the reasonably minded tenant of the class likely to take them. The standard will be by reference to the commencement of the lease, not the expiry of the lease.

Again, it is essential to seek early advice on your liabilities and any outstanding works, so that you can put yourself in the best possible negotiating position.