Generally the tenant will usually be liable for repairs. With residential tenancies the obligation to repair is set out in the Residential Tenancies Act 2004.
However these obligations are in addition to any other statutory obligation such as The Landlord and Tenant Act 1980 and the Housing Regulations 1993.
Housing Regulations 1993
These regulations require landlords to maintain certain minimum standards and Article 5 requires the landlord to keep such houses in a proper state of structural repair.
These regulations have been poorly enforced and have been superseded to a great extent by Residential Tenancies Act 2004 which has increased the penalties for breach of Housing (Miscellaneous Provisions) Act, 1992 which was the forerunner of Housing Regulations 1993.
Landlord and Tenant (Amendment) Act 1980.
This act limited the landlord’s remedy when the tenant was in breach of a covenant concerning repairs.
Section 65 essentially limits the tenant’s liability to the landlord’s loss in value of the building e.g. if a premises is worth €750,000 and the building was damaged to the extent that it is now worth €600,000 the tenant will be liable for €150,000 even though it may cost the landlord €200,000 to repair.
Section 87 also allows the tenant to carry out repairs which the landlord was bound by covenant to do and then deduct the cost of those repairs from the rent.
The Housing Act, 1966 states that in relation to a house a condition shall be implied into the lease that at the commencement of the lease the house is reasonably fit for human habitation and the landlord will keep it so.
Regardless it is necessary for the tenant to serve a notice on the landlord setting out the disrepair complained of and requesting the landlord to sort it out.
In Conclusion
There is nothing to stop both parties at the outset concluding their own agreement and providing for liability in most situations.
As noted at the outset it will generally be the tenant who will be liable for repairs. It must be noted however that sect. 12 and 16 of Residential Tenancies Act 2004 places specific obligations on both landlord and tenant re tenancies to which the act applies and sect. 18 provides that these obligations can not be varies or contracted out of by any lease or agreement.
In commercial leases it is more common for the tenant to be responsible for both interior and exterior repairs. One important point here is the phrase ‘to put and keep in repair’ in a covenant.
This has been held to mean that the tenant must put the premises in repair, not just keep so it is crucial that commercial leases are scrutinised closely.
Generally if a dispute goes to court which turns on the repairing covenant the court will consider a number of factors including location, age of building and the kind of tenant likely to rent the building when deciding the extent of the tenant’s liability under an ordinary repairing covenant.
Remedies
I have dealt elsewhere on this site with residential tenancies and the Residential Tenancies Act 2004 and the termination procedures.
From the landlord’s perspective
- Forfeiture (only applies to premises outside the scope of Residential Tenancies Act 2004) This can occur where the written lease contains a provision for re-entry
- Damages (most leases nowadays include a covenant by the tenant to make good all loss sustained by the landlord as a result of a breach by the tenant on any covenant/condition contained in the lease.
From the tenant’s perspective
- Damages ( a tenant can carry out the necessary repairs when the landlord is in breach of the covenant to repair and can then sue for damages)
- Set off against rent (a tenant can set off the cost of repairs against rent due)
- Injunction/specific performance (this is available to the tenant where the landlord is in breach of the covenant to repair)
- Termination (landlord’s failure can be taken as a breach of contract)
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