Exemptions from a Tenant’s Express Obligation to Repair - Is The Landlord Responsible by Implication?

Abstract

The Victorian Supreme Court in Carbure Pty Ltd v Brile Pty Ltd (2002) V Conv R 54-663 declined to imply a covenant on the part of the landlord to undertake structural repairs to leased premises where the express repair covenant in the lease excluded from the tenant’s obligations structural repair. By contrast, the court in Reilly v Liangis Investments (2000) 9 BPR 17,509 (NSWSC) assumed that in identical circumstances, the landlord had the responsibility to undertake structural repairs. The conclusion that neither a landlord nor a tenant is obliged to undertake repair falling within the exclusions in the lessee’s covenant also has ramifications for other excluded obligations such as fair wear and tear. This article examines the position of the parties in this anomalous situation and whether or not an implied term relating to structural repair could exist against the landlord. The article critiques the differing views in relation to the landlord’s obligation of repair for stand alone leased premises as compared to multi-tenanted buildings and the backround influence of the covenant for quiet enjoyment. It concludes by noting that a repair covenant will rarely be implied against a landlord to the benefit of a tenant and, for the sake of certainty, if possible, an express covenant on the part of the landlord to undertake structural repair should be incorporated in the lease.