A covenant to keep a property in good & substantial repair & condition can hold hidden pitfalls, as Nicholas Asprey reports
Leases sometimes contain a covenant to keep the property “in good and substantial repair and condition”. In effect, this is two covenants; namely, a covenant to keep the property in good and substantial repair and a covenant to keep the property in good and substantial condition. This article examines how the covenant to keep in good condition has potential to go beyond the liability to keep in good repair. This is not a new topic but there are unresolved issues and the potential for the second covenant to go beyond repair is not always understood.
It must be emphasised that each case turns on the particular covenant construed in its own context and surrounding circumstances, as was emphasised by Robert Walker LJ in Welsh v Greenwich LBC [2000] 3 EGLR 41. The factors to be taken into account were described by Nicholls LJ in Holding & Management Ltd v Property Holding & Investment
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