Summary - It is important for landlords and
tenants to have an understanding as to what is considered a
Tenants generally wish to exclude any liability or
responsibility under their lease for carrying out structural works
or incurring expense for works of a structural nature.
Typically landlords agree to such a carve-out from the repair
obligations of the tenant except, for example, where the structural
works arise as a result of the particular use of the premises by
the tenant or a particular need of the tenant due to its business
operations or fitout.
Issues can arise where a particular work is required and the
parties need to determine whether the work is structural in nature
as this will often determine which party ultimately has the
From the perspective of the landlord it is often argued that
structural work is limited to work affecting or altering the
framework or load bearing capacity of the building or work to
remedy some failure on the part of the structure. This was the view
taken by the defendant in a recent Supreme Court of New South Wales
The case involved works relating directly to the fire safe and
fire resistant condition of the building. The Court held that
"of a structural nature" is of wide generality.
The question as to whether works are of a structural nature is a
matter of fact and degree. The works were found to be works of a
structural nature for the purpose of the lease.
It is important for tenants and landlords to understand what
works are likely to be considered structural or structural in
nature for the purpose of their lease and the rights and
obligations under it. In order to minimise the prospect of lengthy
and expensive litigation, it is also advisable to pre-agree this
before the works are carried out.
Please contact us if you need any advice in relation to repair
rights or obligations and/or the interpretation or drafting of
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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