Modernising Remedies for Breach of Repairing Covenants

Extract

The obvious, and potentially most effective, remedy for breach of a repairing covenant in a lease is specific performance. All such decrees are of course discretionary. Although there are “well-established principles which govern the exercise of the discretion . . . these, like all equitable principles, are flexible and adaptable to achieve the ends of equity” (per Lord Hoffmann in Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd. [1998] A.C. 1, 9). However, since the decision of Lord Eldon L.C. in Hill v. Barclay (1810) 16 Ves. 402, specific performance of repairing covenants was considered generally unavailable on three grounds: the want of mutuality between landlord and tenant; the impossibility of defining adequately the works to be done; and the need for the constant supervision of the court to ensure that effective compliance is obtained. In its 1996 Report on Landlord and Tenant: Responsibility for State and Condition of Property (Law Com. No. 238), the Law Commission recommended legislation to give the court power to make orders for specific performance in any lease or tenancy. Now, the High Court appears to have made legislation unnecessary. In Rainbow Estates Ltd. v. Tokenhold Ltd. [1999] Ch. 64 (Lawrence Collins Q.C. sitting as a deputy) it has done Parliament's work for it.