Dilapidations - Jervis v Harris Clauses

Date: 19th October 2018
Author: Steven Whittle
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What is a Jervis v Harris clause?

The term Jervis v Harris clause, stems from a prominent dilapidations court case in 1995. As a consequence of the court’s decision, most modern day leases contain a ‘self-help’ remedy for Landlords, when a Tenant is failing to maintain and repair a property in accordance with their contractual obligations under a Lease during the lease term. Such ‘self-help’ remedies are often referred to as a Jervis v Harris clause.

What rights does this ‘Self-Help’ remedy grant to a Landlord?

A Lease which contains a properly drafted Jervis v Harris clause, grants the Landlord a right to first serve notice on a Tenant, specifying any breaches of covenants relating to the condition of a property.

If the Tenant then fails to proceed diligently with remedying the breaches and/or to remedy the breaches identified in the notice within a specified period, (as set out in the Jervis v Harris clause – usually within 2-3 months), the clause grants a right for the Landlord to enter the property to carry out the works and to then recover the costs in doing so from the tenant, as a ‘debt’.

What are the advantages?

One of the key advantages of using a Jervis v Harris clause is it is likely to result in the necessary works being carried out. Especially if the Tenant is properly informed and seeks professional advice, meaning the property does not fall into further dis-repair during the remainder of the term and which can result in more costly and difficult repairs being needed in the future.

Furthermore, the Landlord is able to recover their reasonable costs incurred in undertaking the works from the Tenant as a ‘debt’, rather than as a damages claim. Consequently, the costs incurred are not subject to Section 18 (1) of Landlord and Tenant Act 1927, which limits any damages claim due to a Tenants failure to maintain and repair a property in accordance with their contractual obligations, to the adverse effect on the properties freehold value.

Therefore, all a Landlord will need to prove is they have acted reasonably, undertaken the works,  incurred costs in doing so and are entitled to recover the costs in doing so as a ‘debt’ rather ‘damages’. Meaning they are then entitled to recover the actual costs incurred as a simple debt due by the tenant, which is far more straightforward to pursue compared to a damages claim.

What else does a Landlord need to consider?

It is important to remember that a Jervis v Harris clause is a contractual right. If a Lease does not contain an appropriate clause then there will be no right for a landlord to invoke the procedure.

Where a Lease contains a Jervis v Harris clause, it is important that the notices are correctly served, that the alleged breaches correctly reflect the standard of repair required under the Lease and that timings are strictly complied with. The consequences of an invalid notice and where the Landlord then seeks to enter a property may constitute a breach of the Tenants right to quite enjoyment and could expose the Landlord to a possible counter-claim for trespass and business interruption.

It is therefore essential the correct contractual procedures are followed. But, where the repairs are significant, the Tenant is ignoring its obligations and provided the Landlord acts properly and reasonably within the limits of the clause, it would be difficult for a Tenant to challenge the need for the works to be undertaken or any ‘debt’ incurred.

What if I am a Tenant and I have just received a Jervis v Harris Notice?

There is no right or wrong answer. But, ignoring it and hoping it will go away would be the worst thing a Tenant could do in our experience.

In first instance it will need to be ascertained if the notice has been correctly served and that the alleged breaches of covenant correctly reflect the standard of repair required under the Lease. In the latter case a Building Surveyor would be best placed to assist in determining this.

If a notice has been served correctly and to avoid a dispute, in our experience it would be best to engage with the Landlord to try and agree the best way forward.

Roger Hannah & Co

Whether you are a Landlord or Tenant, we would always recommend seeking professional advice when dealing with Jervis v Harris notices. Our dedicated Building Surveying team specialise in dealing dilapidations matters and are fully experienced and able to assist no matter what the current situation is. Meet the fully dedicated Building Surveying Team here:

Acting for both Landlords and Tenants, we also offer a number of other dilapidation related services including Dilapidation Assessments, Interim and Terminal Dilapidations claims, Defending Dilapidation claims, Schedules of Condition, etc.

...our dedicated and experienced team of Chartered Commercial Building Surveyors provide a full range of specialist services, tailored to meet our clients' requirements.

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Steven Whittle BSc (Hons) MSc MRICS Associate Director