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Repairs and maintenance: what are your responsibilities as a tenant?

You’re swooning over the perfect location for your business, thinking with your heart and impatient to seal the deal with the landlord. But it’s best to look at your commercial lease as a marriage of convenience - while both parties are looking to benefit, there’s nothing romantic about this union.

Before the wedding you’ll need to work out your legal obligations, but your lease document looks like it’s written in ye olde English. You also have a sneaking suspicion that if this is the prenup, it’s not written in your favour - you could end up broke and divorced while your landlord moves on quickly with someone new.

But you don’t want to miss out on this perfect location. Shouldn’t you just sign on the dotted line and assume your landlord will make the perfect partner? I mean what could go wrong?

Actually, just like a Love Island romance, you could find yourself alone with nothing but a C-grade Instagram account. If reality TV has taught us anything, it’s that those who rush into a whirlwind romance tend not to build the foundations for a solid, workable relationship. When you turn a blind eye to your partner’s flaws, it’s not long before they come back to bite you. Ouch!

What happens when the honeymoon period is over?

Repairs and maintenance obligations can be a major source of contention. Both parties will try to avoid spending money by shifting blame. If only you’d taken the time to carefully assign and define responsibility to avoid surprises and disputes!

It’s unusual for a tenant to draft a lease. The landlord’s lawyer will have prepared the lease, so naturally it will be drafted in their favor. However, you have the opportunity to negotiate terms to add certainty and even up the balance of power.

Who’s responsible?

General maintenance and repairs

If the work that’s required to fix damages to a property falls outside of “fair wear and tear” then it’s classified as “general maintenance and repairs” and is the tenant’s responsibility. Think walls, floors, fixtures and inclusions. If you, your staff or a customer put a hole in the wall then it’s your job to get it fixed.

Structural repairs

The legal definition of “structural repairs” is “something which has been constructed”. Structural repairs of the premises will be the responsibility of the landlord. Make sure there’s an express clause in the lease that requires the landlord to undertake these repairs, otherwise it might be up for debate. In some instances, landlords may try to pass on obligations for structural parts of a building to tenants, so you need to be careful. 

Who pays?

Unfortunately, disputes over who should pay for repairs are common and they can be a real headache because they involve technical interpretations of the lease. Air-conditioning, cool-rooms and heating fixtures are examples of some common problem areas. And what if something breaks but the parties can’t agree on whether it’s faulty, damaged, worn out or expected maintenance wasn’t carried out? See how it can quickly get confusing?

So, what can you do?

As a tenant, you should:

  • Obtain independent legal advice. Someone who can negotiate the lease on your behalf and address the balance of power. The end product should be a lease that represents a mutually beneficial arrangement
  • Your representative should make sure that you have very clear clauses which outline the obligations relating to repairs and maintenance. Invest in an expert now and you will save time, stress and money down the track
  • Get a third-party assessment of the premises before signing the lease – like a condition report. This means you’ll be aware of any potential repair issues, enabling you to negotiate accordingly
  • If already in a lease arrangement but the clauses around repair are not clear, seek legal advice if a dispute arises so you can resolve it in a commercially sensible way

Be patient, talk to the professionals, take their advice and you’ll have a match made in heaven. Well at least until it comes time to renew, but you’re off to a good start.

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