Cases - Twinmar Holdings Ltd v Klarius UK Ltd and anor
Record details
- Name
- Twinmar Holdings Ltd v Klarius UK Ltd and anor
- Date
- [2013]; [2013]
- Citation
- EWHC 944 (TCC); 2 P&CR 6
- Legislation
- Keywords
- Commercial property - dilapidations - dilapidations case law
- Summary
-
Twinmar was the landlord of a single-storey warehouse and associated offices. The premises were built in 1993 and had been held by Klarius (the tenant) under a 25-year lease from September 1993. The lease, which was determined in September 2008, contained 2 relevant clauses. The first required the tenant to
‘keep the whole of the premises ... in good and substantial repair and condition’.
The second required it ‘when necessary’ to ’replace and renew and to keep clean all windows in the premises’. In July 2007, Twinmar's surveyor prepared a schedule of dilapidations. While many of the items were agreed, a significant outstanding issue was Twinmar's claim for the cost of repairs to the glass-reinforced polyester rooflights in the warehouse. Twinmar alleged that by the end of the tenancy their surface had become so degraded that they were opaque and had to be treated with a coating to restore their translucence. The issues were whether
- the condition of the rooflights at the expiry of the tenancy was such that they were not in ‘good and substantial repair and condition’; and
- the rooflights were windows within the meaning of the lease.
Applying the principles of Proudfoot v Hart, the court held that the landlord was entitled to recover the cost of repairing the rooflights together with the cost of certain associated safety measures. At the end of the lease, the rooflights had to be, in so far as was possible by means of maintenance and repair, in the same condition as they had been at the beginning. They had to be capable of letting in about the same amount of light and they had to be structurally sound and weatherproof.
Where a covenant required a tenant to keep the leased building in good and substantial repair and condition, he would have to carry out repairs that would make good any deterioration in the rooflights caused by time and the elements. Keeping the building in good and substantial condition involved taking whatever steps were necessary to achieve and maintain that standard. However, there would be no breach of covenant unless the building was actually out of repair. It was not sufficient that the building would become out of repair at some time after the expiry of the lease. However, if the building would become out of repair before the expiry of the lease, then if the tenant did not take the steps necessary to prevent that deterioration, he would do so at his own risk. A rooflight ceased to be in good condition within the meaning of the covenant once there had been a visible and a significant reduction in its translucence such that the light coming through had to be augmented by artificial lighting in weather conditions that would not have required additional lighting when the roof lights were new. On the evidence, that state of affairs had been reached by the time the lease expired. Thus, at the expiry of the lease, the rooflights were not in good and substantial repair and condition.
Although it was not essential to the principal decision in the case, the court also considered whether rooflights could be windows and whether, in this case, the tenant would have been obliged to keep them clean and to renew them as necessary. The court concluded that, in the context of a lease, the essential characteristics of a window were that it was a glazed panel in a frame set into the external envelope of a building, the purpose of which was to let in light and, usually, to enable the building's occupants to see out. It was reasonably clear that a window did not have to be in a vertical plane and that ‘Velux’ type windows were properly described as windows. While many windows were capable of being opened, that was not an essential characteristic. It was axiomatic that windows were typically made of glass. If a window was made of some other transparent material then, for it properly to be described as a window, it was essential that the material should behave like glass in terms of the transmission of light. The rooflights in this case were not windows: they were not glazed and had no frame.
Dilapidations case law
After the judgment was distributed in draft, the judge was told that a winding-up order had been made against the tenant. The official receiver, who had been appointed as liquidator, informed the court that the judgment should not be handed down by virtue of section 130 of the Insolvency Act 1986, which provides that when a winding-up order had been made no action shall be proceeded with or commenced against the company or its property, except with the leave of the court. The judge could see no reason why judgment should not be handed down. It was, in effect, in a form that was declaratory and the claimant landlord was entitled to know the judge’s findings and to make such use of them as he or she properly could in the liquidation.