Who pays for roof repairs on a commercial lease?

Start with the repairing covenant

A commercial lease is a contract, and the clause headed repair, or sometimes maintenance, says who keeps each part of the building in good order. Roofs sit in different places in different leases. Where the lease covers an entire building on full repairing terms, the tenant normally takes on the roof along with the walls and the structure. In a lease of part of a building, the landlord usually keeps the roof and the structure, and the tenant is responsible for the inside of the unit only.

Look for the word that describes the standard. A covenant to keep the roof in repair is different from a covenant to put it into repair, and both differ from an obligation to renew it. A tenant who agrees to keep a roof in repair is not generally expected to fund a replacement of a covering that was already failing on day one, though the wording and the facts matter a great deal. We are roofers, not solicitors, and none of this is legal advice. A solicitor who acts for commercial tenants or landlords should read the lease before you commit money.

Our job is to describe the roof accurately. If a leak comes from a cracked valley, an open lap in the membrane or tired flashings, a clear written survey helps everyone work out what kind of problem it is and who answers for it.

Tenant, landlord or service charge

Three patterns come up again and again.

• Tenant repairs the roof directly. This is common for single-occupier units such as a small warehouse, a workshop or a standalone shop. The tenant instructs the roofer, pays the invoice and may need the landlord's consent for anything beyond repair.
• Landlord repairs and recovers the cost. In a parade of shops, a business park or an office building with several tenants, the landlord generally looks after the roof and charges each occupier a share through the service charge. The share is set out in the lease, not decided afterwards.
• Split responsibility. A tenant may be responsible for the covering, the landlord for the structure beneath, or the reverse. Gutters and rainwater pipes that serve more than one unit are a frequent grey area.

Where a roof repair is large and is billed to several leaseholders, a formal consultation process can apply before the work starts. We explain the idea in our page on Section 20 roof works. Ask your managing agent early whether it applies to your building, because skipping it can limit what the landlord is able to recover.

Schedules of condition and dilapidations

A schedule of condition is a written and photographic record of the state of the building when the lease begins. It is attached to the lease and protects a tenant against being made to leave the premises in better order than they found them. If your roof was already worn when you signed, the schedule is the proof.

Dilapidations are the claims a landlord can make when a tenancy ends, usually for repairs the tenant should have carried out. Roofs feature heavily, because a roof left dripping through several winters can ruin the ceilings, stock and fittings below. Keeping dated records of what you reported, what was done and what it cost is the best protection on either side of the table.

A roof survey with photographs, taken before a dispute begins, is far more useful than one commissioned afterwards. It fixes the condition on a date and shows which defects are old and which are new. We can provide this kind of record for a commercial roof as part of a survey visit. It does not decide who pays, but it supplies the facts the lease then applies. For a long-lived planned arrangement, see our answer on the roof maintenance contract.

Repair, overlay or replace: the lease still matters

The type of work changes the answer. A repair to a defect is usually within a repairing covenant. A full replacement can be treated as an improvement or as renewal, which many leases exclude from the tenant's obligation. An overlay, where fresh waterproofing goes on top of the existing layer, often falls somewhere between the two. Asking the landlord for written agreement on scope before the work starts avoids the argument afterwards. Our page on the commercial roof overlay explains when that approach works.

Alterations raise a separate question. Solar panels, new rooflights, plant platforms and satellite equipment all need access to the roof or fixings through it. Most leases restrict these without written consent, and the landlord may want conditions about who repairs the roof if the new equipment causes a leak. Our answer on solar panels on a commercial roof covers the roof side of that conversation.

Where the building is listed, consent comes first of all, whoever is paying. B&NES Council decides listed building consent for Bath, and the rules apply to landlord and tenant alike. For what that involves on a business building, read about the listed commercial roof.

What to do when the roof leaks and the lease is unclear

Water does not wait for a dispute to be settled. Report the leak in writing to the landlord or managing agent, keep a dated photograph, and move stock and equipment out of the wet area. Ask the landlord to confirm in writing who will deal with it. If nothing happens and damage is spreading, a temporary repair to stop water entering is usually a sensible step, and your records of what you did and why will matter later.

Leaks and storm damage get our attention first, and stopping the water comes before anything else. Then the survey follows: where the water got in, the condition of the covering around it, and what a lasting repair involves. The report gives the facts, with pictures, that you can pass to the landlord, the managing agent or your insurer. Your insurer may also want to read it. For a closer look at one common culprit, see our answer on why an industrial valley gutter fails.

Commercial roofs are priced on survey. The repair price is fixed on paper once the roof has been inspected, and the details of the lease are for you and your adviser. The commercial roofing hub lists everything else we do for business premises.