Summary - It is important for landlords and tenants to have an understanding as to what is considered a "structural" repair.
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 responsibility.
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 decision.
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.
