In such circumstances, the said notice must be in writing and give the tenant reasonable time to repair. After the introduction and coming into effect of the Civil Procedure Rules, however, its requirements are to be observed before the building is inspected and schedule for dilapidation is prepared. The Civil Procedure Rules provide guidelines for the conduct of parties in Part 56 Position of the tenant Before taking any action for breach in case of a tenancy for more than 7 years and more than three years remaining Leasehold Property (Repairs) Act 1938 applies to that tenancy.
The landlord has to inform his tenant about his right to serve a counter notice. The minimum period of this notice is 28 days. The tenant has a right to serve a counter notice and if he does serve it, then the proceedings will be stayed. In this notice, tenant can claim relief from forfeiture. You will then have to seek leave of the court to continue action for eviction. It will be granted only if one of the five grounds specified in the Leasehold Property (Repairs) Act 1938 is applicable.
S. (1) (5) Leave for the purposes of this section shall not be given unless the lessor proves— (a)that the immediate remedying of the breach in question is requisite for preventing substantial diminution in the value of his reversion, or that the value thereof has been substantially diminished by the breach; (b) that the immediate remedying of the breach is required for giving effect in relation to the premises to the purposes of any legal purposes, (c) in a case in which the lessee is not in occupation of the whole of the premises, that the immediate remedying of the breach is required in the interests of the occupier of the premises (d)that the breach can be immediately remedied at an expense that is relatively small in comparison with the much greater expense that would probably be occasioned by postponement of the necessary work; or (e) special circumstances which in the opinion of the court, render it just and equitable that leave should be given. You will have to prove their existence on the balance of probabilities, as laid down in Associated British Ports v.
CH Bailey. In his defence, the tenant can take the stand that you are going to develop the property by dismantling the existing building. In case he can prove that you have decided to pull down the building, then you will not be able to sue for damages in accordance with Section 18 (1) of the Landlord and Tenant Act 1927 which says “…no damage shall be recovered for a breach of any [repairing] covenant …if it is shown that the premises …would at or shortly after the termination of the tenancy …be pulled down or such other structural alterations made therein as would rendered valueless the repairs covered by the covenant…” The standard of repair, unless a schedule is drawn up at the time of entering into contract, would generally be construed to mean a standard which could be expected by a reasonably minded person from the class likely to take the premises on rent, considering the age, character and locality of the premises.
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