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At the heart of general practice since 1960

Antibiotics for acne a URTI risk

About half of all GPs rent their practice premises,

and in the first of an occasional series on rented

GP property, solicitor Daphne Robertson looks at the vexed question of the tenant's repair clause

Most commercial leases leave the obligation to insure the building to the landlord. However, the tenant is required to reimburse the landlord for all or a part of the premium.

Any well-drafted lease will spell out the insured risks that the landlord is obliged to cover under his policy.

But some lease obligations are not spelled out. They are simply limited to 'comprehensive risks'. And some less desirable clauses merely say the landlord shall insure 'against such risks as the landlord in his absolute discretion shall decide'.

If the building is damaged or destroyed by an event that is not covered by the landlord's insurance policy, is the rebuilding or repair of the premises the landlord's problem? The answer is that it depends. It may be the tenant's problem.

The reason is that most leases require the tenant to keep the premises:

'...in good and substantial repair and condition (damage by any of the insured risks excepted unless vitiated by any act or default of the tenant, his servants or agents)'.

In other words, it might be the tenant who is shown to be negligent. You must guard against this.

Many years ago, the courts decided that an obligation by the tenant to 'keep' in repair included an obligation to 'put' in repair. So the tenant could be required to rebuild the premises if they are destroyed.

The basic point is that the tenant has a legal obligation to fill any gap between his lease repairing liability and the landlord's insurance obligations unless the landlord has been at fault in failing to insure within his lease obligations. Hence, the wording of the landlord's insurance clause assumes some importance.

To make matters worse, the tenant may also be obliged to pay the rent while any repairs or rebuilding are being carried out if there is no rent abatement clause in the lease. So do watch out for this.

Key points

·Check the repairing clause in your lease to see your obligations. Is it a full repairing lease?

·Check the lease for your landlord's insurance obligations. Are the risks defined?

·Check the landlord's insurance schedule. Is the property covered for flooding, subsidence and terrorism?

Daphne Robertson

of DR Solicitors, London, leads a bespoke practice of eight ex-City lawyers specialising in providing medical business law advice to NHS practices

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