When a person borrows an item from another, the borrower understands that he should return it in the same condition in which he received it. A landlord would believe that this principle also applies to premises he has rented to his carefully chosen tenant. However, it is not accurate for a landlord to assume that a tenant has an obligation to repair all damages incurred during the term of the tenancy.

A tenant of a dwelling house may assume that the premises he has rented ought to be free from disrepair and that as soon as he notifies the landlord of a problem, big or small, the landlord is to ensure that it is fixed to ensure the living comfort of the tenant. However, the tenant may find that, in law, the landlord has no obligation to respond to the calls for repairs to be done, and he may be required to fix the disrepair in order to secure the premises from further deterioration.

It is best recommended that lease or tenancy arrangements be in the form of a written contract. The contract should be properly drafted and should ensure that the terms contained in it are the ones suitable and agreeable to both parties. In the absence of written contracts or contracts that do not fully address relevant issues, principles from the common law or statutes are implied as the governing terms.

Some rented premises, mostly dwellings, are governed by the Rent Restriction Act. Others are not, including many commercial premises. Where the lease of a premises is governed by the Rent Restriction Act, it is implied into the arrangement that the landlord will “keep the premises in a tenantable state of repair and observe reasonable standards of maintenance.” Thus, the landlord will make such repairs as are necessary to keep the premises in more or less the same condition it was in at the commencement of the tenancy. He will also conduct works necessary for the upkeep of the premises. The repairing obligation will arise where a part of the premises falls into disrepair, while the maintenance obligation is ongoing to ensure that the premises does not fall into disrepair.

In this same arrangement, tenants will have an obligation to “keep the premises in good order and condition, fair wear and tear excepted… [and] to keep the premises in a sanitary condition.” Thus, the tenant’s obligation is to clean the premises and keep it clean on an ongoing basis, conduct himself reasonably and not cause any disrepair to the premises. However, he is not required to fix damages arising from the reasonable everyday use of the premises and fixtures.

With respect to premises that are not governed by the Rent Restriction Act, the landlord has no obligation to make repairs either at the commencement of the lease or during the term, unless the lease agreement expressly imposes this obligation on him. Thus, if the premises should fall into disrepair during the term of the tenancy, the tenant will either have to live with it or make his own repairs. Tenants of premises for which there is a Certificate of Title (because the land is registered under the Registration of Titles Act) will have an obligation to keep and yield up the premises in “good and tenantable repair, accidents and damages from storm and tempest, or other acts of God and the Queen’s enemies, and reasonable wear and tear, excepted.” The tenant’s obligation, therefore, is to make such repairs as are necessary to ensure that no further damage is caused to the premises. However, he does not need to repair damage caused by natural disasters, reasonable every-day use of the premises, wars and shoot-outs (that is, if a court declares criminals to be enemies of the Jamaican Queen).

A tenancy is not automatically terminated if the premises falls into disrepair, even if the disrepair is significant, such as a major leak in the roof which causes flooding of the interior when it rains. A tenant may find himself in a position where he is obligated to make the repairs and pay the rent in full. He will be entitled to make deductions from the rent for repairs only where the obligation to repair was imposed on the landlord and he failed to carry out his obligation.

I would recommend that landlords and tenants examine the state of repair of premises at the commencement of the tenancy and that both parties appreciate the available information so that expectations can be effectively managed during the tenancy. The parties should make arrangements which are suitable for their own circumstances and minimize disputes and surprises regarding placement of obligations during the term of the tenancy. A properly drafted lease agreement is an asset to a landlord and tenant relationship.

Andrea Scarlett-Lozer is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial and Intellectual Property Department. Andrea may be contacted via andrea.scarlett@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.