Repairs under a commercial lease can be a point of contention between a landlord and tenant. With both parties trying to shift blame and save money, it can be hard to figure out who should pay for repairs. As a tenant, your landlord has certain legal obligations to undertake repairs to the property. This article will explain when you are responsible for repairs and when your landlord must bear the costs.

What Does the Law Say?

There are no specific laws on whether you, a tenant, is obligated to provide repairs and maintenance on the property that you lease from a landlord. Therefore, a commercial lease will almost always include clauses that set out who should repair and maintain certain items of the property. It is also common that the lease clauses that deal with repair will make a distinction between:

  • general repairs and maintenance; and
  • structural repairs.

You should be aware that as the landlord’s lawyer will normally prepare the lease, it will usually be drafted in favour of the landlord. Therefore, you may need to negotiate any terms that you do not believe are fair.

What Are General Repairs and Maintenance?

So, what is considered to be repair and maintenance that you, as a tenant, must undertake?

The precise nature of repairs will vary from lease to lease, depending on the way the lease is drafted. However, in general, you and your landlord will need to consider a number of factors, including the:

  • wording in the lease and the context of the lease as a whole;
  • factual circumstances of each matter;
  • current building practice; and
  • effect of the works on the value and lifespan of the premises.

Generally speaking, if the work that needs to be done is beyond reasonable wear and tear, it will be your responsibility as a tenant to carry out that repair and pay any costs.

An example of a general repair that you are responsible for is if you accidentally put a hole in the wall.

However, if the work amounts to structural maintenance or relates to capital expenditure on equipment attached to the building, the landlord will be responsible to repair it. This might include the air conditioning or exhaust system.

What Are the Landlord’s Structural Repairs?

The landlord is responsible for any structural repairs of a commercial lease premises. The legal definition of ‘structural repairs’ is ‘something which has been constructed.’

For example, the significant repair of the roof or walls of the premises would be classified as structural repairs.

However, this definition can extend even further.

For example, in a recent New South Wales (NSW) Supreme court case, essential fire safety maintenance that the local council ordered was so extensive that it was deemed to be structural repairs. Therefore, the landlord had to undertake it.

It is important to note that sometimes an express clause which requires the landlord to undertake structural repairs to the building may not be included within your lease. In this case, a landlord does not necessarily have an obligation to fix any structural repairs. Therefore, situations can exist where neither the landlord or yourself are responsible for the costs of structural repairs. 

What if You Can’t Agree on Who Pays for the Repairs?

Disputes between a landlord and tenant about who should pay for repairs are common. These disputes can become very technical as you each have to interpret clauses of the lease. From these interpretations, you may need to argue over what work is considered ‘structural’.

The best way to avoid disputes is to carefully consider and negotiate the lease before it begins.

For example, you should negotiate key items such as air conditioning systems as these may cause disputes between you and your landlord if they require repair.

However, your existing lease may not include clear clauses on who is responsible for repairing certain items within the property. If so, you may need to obtain legal advice if a dispute arises. This will help you resolve the matter in a commercially sensible way that benefits both you and your landlord.

Key Takeaways

Disputes between landlords and tenants often arise when it isn’t clear who is legally responsible for repairing certain items in leased premises. In particular, the distinction between general maintenance and structural repair provides an area of contention between landlords and tenants.

Therefore, it is important to clearly outline who is responsible for particular items of maintenance in your lease. If you have any questions about whether you or your landlord are responsible for repairs to the leased premises, contact LegalVison’s property lawyers on 1300 544 755 or fill out the form on this page.

Emma Heuston
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