Thursday, 1 March 2012

Poll on ‘Liability’ for Senior Law Lecturers by Jo Gavin. Answer Yes/No.

Poll on ‘Liability’ for Senior Law Lecturers by Jo Gavin. Answer Yes/No.

Firstly I’d like to thank you for taking part in this ‘law’ poll. My question is: Q. In a case about repairing obligations when this clause is stated in the lease:

The leases
1.               The landlord’s only covenants are covenants for quiet enjoyment (clause 7(1)) and a covenant to insure (clause 7(2)).
7(1) That the Tenant shall have quiet enjoyment of the Demised Premises against the Landlord and all persons claiming title through the Landlord
7(2) To insure the Demised Premises and the Development in an insurance office of good repute or at Lloyds against the Insured risks and in the event of the Demised Premises being destroyed or damaged by any of the Insured Risks the Landlord shall with all convenient speed (subject to the availability of all necessary labour and materials and the obtaining of all necessary permissions) lay out and apply in rebuilding repairing or otherwise reinstating the Demised premises all monies received by virtue of such insurance other than monies received in respect of loss of rent Provided that the Landlord shall be under no liability to the Tenant hereunder if the insurance money under any policy of insurance effected by the Landlord shall be wholly or partially irrecoverable in the circumstances set out in 5(22) above Provided always that the Landlord shall not be under any obligation to insure any fixtures or fittings installed by the Tenant which have become part of the Demised Premises unless the Tenant shall have notified the Landlord in writing of such installation and the Landlord has agreed with the Tenant at the cost of the Tenant to effect the insurance thereof and provided further that the covenant by the Landlord as to reinstatement shall be satisfied if the Landlord provides in the premises so reinstated accommodation as convenient and commodious as is practicable but not necessarily identical to the Demised Premises as the same existed prior to such damage or destruction and provided further that if any competent authority shall lawfully refuse permission for or otherwise lawfully prevent any rebuilding or reinstatement of the Demised Premises or any rebuilding or reinstatement shall be otherwise impossible impractical or frustrated all relevant insurance monies (so far as not laid out aforesaid) shall be receivable by the Landlord for its own use and benefit absolutely
Q continued… If the landlord then fails to make an insurance claim at all but goes about repairing shoddily, or not at all, themselves, are they then in the same way a tenant would be if it broke the following clause also in the lease:

In the event of the Demises Premises or the building in which they are situate or any neighbouring premises or any of them or any part thereof being destroyed or damaged by any of the Insured Risks and the insurance money under any policy of insurance effected thereon by the Landlord being by reason of any act neglect default or omission of the Tenant wholly or partially irrecoverable forthwith in every such case to pay to the Landlord on demand the cost of rebuilding and reinstating the building or buildings so destroyed or damaged such rebuilding works to be carried out by and in accordance with the requirements of the Landlord and the Tenant being allowed towards the expenses of so doing (upon such rebuilding and reinstatement being completed) the amount (if any) actually received by or on behalf of the Landlord (other than in respect of loss of rent) under any such insurance as aforesaid in respect of such destruction or damage
Q continued… ‘Liable’ to the tenant if the insurance company would not pay because the landlord breached the terms of the insurance

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